The Five-Day Rule: Has It Helped to Expedite The Adjudicative Process?

April 30, 2018

Recently, the Social Security Administration’s (SSA) processing times have averaged approximately 600 days. According to the Washington Post, around 10,000 claimants died while waiting for disability. In response to these disturbing statistics, the Social Security Administration implemented a Five-Day Rule nationwide in May 2017. This Five-Day Rule essentially requires disability claimants to notify the Agency or submit medical evidence five days prior to the scheduled hearing; the evidence may not be considered in adjudicating the case, otherwise. Hopefully, this change has expedited the disability claimant’s adjudicative process.

 

It’s important to consider how else the process can be improved. As of February 2018, the Agency data shows processing times are still high even as many offices are working to improve new processing systems. On a high note, Providence, Manchester, Houston North, and Fort Smith have ranked the best processing times in the country. Rochester and Manchester understandably have some of the best processing times because they have been complying with the Five-Day Rule since the establishment of the Disability Service Improvement (DSI) plan, created under Commissioner Barnhart and dated back to 2006. (This was the same year Google purchased YouTube, Pluto was downgraded to a dwarf planet, and FedRO was implemented in Region 1.) Other hearing offices, however, are still working out a few processing issues, such as creating a unified approach among Administrative Law Judges (ALJs) and how a Social Security Disability (SD) writer can efficiently draft a case when the ALJ has not made a decision to admit or deny evidence presented after the Five-Day Rule.

 

Reports from within the Agency indicate that staff and SSD writers who are not in the position to make a decision on the evidence occasionally note in the decision that the post-Five-Day Rule evidence was not admitted. Time could be wasted clarifying the matter with an ALJ via email, deterring faster processing times and causing disability claimants to wait.

 

Certain Administrative Law Judges do accept the evidence, however, even when it’s been provided after the day five-day deadline. Therefore, there have not been many remands, which is efficient. Arguments have been made that this defeats the entire purpose of the rule, which is intended to improve efficiency and reduce the “evidence dump” that frequently occurs at the hearing. When ALJs accept the evidence regardless, the representatives feel enabled to continue dumping evidence at the hearing.

 

In a production-paced environment, it’s important to choose which battles are worth fighting to efficiently serve the claimants and which ones aren’t so important. In this case, there are still several issues that need to be worked out in order to make this a fully functional process. This is understandable, considering the Five-Day Rule is still in its infancy.

 

Social Security Disability representatives and Agency employees have suggested various solutions to continue improving the system. One suggestion involves encouraging ALJs to make a decision regarding the new evidence at the hearing since the exceptions to the rule are few and fairly simple to determine. SSD representatives rightfully urge ALJs to uniformly enforce the Five-Day Rule, understanding there will be small statistical changes due to human error. Certainly, the Agency could use senior attorneys to ensure the record is developed early on, such as in the FedRO, VSU, and NAT programs, and reduce the notorious “evidence dump” at the hearing. Social Security Disability representatives can communicate the new rule to disability claimants, strong encouraging them to be more diligent in describing their treatment and obtaining evidence on time. SSD representatives could also separate the medical records by source and avoid including duplicates when submitting evidence. Moreover, many SSD representatives have requested ALJs subpoena medical evidence at least ten days before the hearing when a treating source isn’t complying with medical record requests. Each of us has a part in finding solutions and implementing changes efficiently and accurately.

 

It would be highly beneficial for medical professionals to begin using their voice and taking responsibility to find solutions regarding delayed, denied, or ignored medical evidence requests. The disability claimants are their clients and pay for their services; certainly, medical professionals have a share in this issue. Medical professionals’ responses to requests are essential for improving processing time and reducing “evidence dumps” at the hearing.

 

Overall, the Agency and SSD representatives haven’t given up on trying to improve the system and ensure an efficient due process for claimants. More data will become available as the Five-Day Rule reaches another anniversary. Until then, it is important that we look for more and better solutions, acknowledge what is working, and consider our own responsibility for the sake of promoting advocacy solutions.

 

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Email: terri@terrimdavid.com

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