FAQ

Mental health treatment records are a necessary and integral part of the evidence needed for DDS to make a disability determination for someone alleging mental illness as an impairment. You are permitted and encouraged to support a claimant’s application with the disclosure of your records (with proper authorization). The records that are excluded from this authorization are “psychotherapy notes,” which are a specific type of note not typically a part of most medical records, especially in publicly funded settings.

As HIPAA defines the term, “psychotherapy notes means notes recorded in any medium by a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record. Excluded from “psychotherapy notes” are medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

If you keep psychotherapy notes separate from your other medical records, you can send the set of records without the psychotherapy notes. If you do not keep psychotherapy notes separate from other parts of the medical records, you can legally disclose all of the records. However, you can choose to black out or remove the parts of the records that would be considered psychotherapy notes. Another option is to prepare a report that details the critical current and historical aspects of the applicant’s treatment and functional information, such as a SOAR Medical Summary Report.

For more information, see SSA’s Fact Sheet for Mental Health Care Professionals.

Generally speaking, medical providers are not legally bound to provide records to a third party. They are not required to provide records to DDS, either. However, HIPAA regulations require healthcare providers to provide individuals copies of their own records: 

"The Privacy Rule generally requires HIPAA covered entities (health plans and most health care providers) to provide individuals, upon request, with access to the protected health information (PHI) about them in one or more “designated record sets” maintained by or for the covered entity.”

We hear from most SOAR providers that they are able to get medical records from most sources. Some states have special laws that cover access to records for disability applications. We also do our best to build relationships with commonly used providers and the medical records departments to try to improve those relationships, and clarify and expedite processes.

As the claimant’s representative (using the SSA-1696 Appointment of Representative Form), you can request a copy of the claimant’s previous and current files, which include the medical records SSA and DDS received with the application. These documents are generally provided on a CD. This is allowed under the Privacy Act (5 USC § 552a (b)) “An individual may give SSA written consent to disclose his/her personal information to a third party of his/her choosing.”

Note: When using the SOAR process, staff will want to collect the medical records and submit them to DDS rather than the other way around. The reason for this is to ensure that the DDS receives all pertinent information. However, obtaining a CD from DDS can be useful when you assist an individual who has already applied and been denied.
Source: https://secure.ssa.gov/poms.NSF/lnx/0203305001

At the hearing level, many Administrative Law Judges (ALJs) will invoke ‘Rule 3.7: Lawyer/Advocate as Witness’.  Under the advocate-witness rule, you cannot serve as both advocate (via the SSA-1696) and witness.  The ‘witness’ is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. This dual role can give rise to a conflict of interest.

In your case, the ALJ viewed the 3^rd Party Function Report you completed as ‘providing witness testimony’ which can prejudice the ALJ’s decision. Often, the ALJ will recognize that the SOAR case worker is not familiar with this rule, and educate them on their options.  When there is other evidence in the file and the SOAR case worker does not need to testify themselves, they will remain the official 1696 representative. By doing so, they are able to cross examine expert witnesses and directly examine the applicant (i.e. ask them questions in front of the judge during the hearing).

Absolutely!  Initiating the Online Disability Benefit Application sets the protective filing date for SSI as well as SSDI. Even without work credits, there are other ways an applicant may qualify for SSDI so we recommend applying for both programs. Further, completing the online application is an efficient way to submit medical and work information that is necessary to apply for SSI.

Yes! We actually suggest that you submit both the SSA-3368: Adult Disability Report and the SSA 16: Application for SSDI online as part of a complete SOAR-assisted SSI/SSDI application packet. You can use the paper forms as worksheets and then transfer to the Online Disability Benefit Application and Adult Disability Report

We recommend against using the SSA-8001 form for a SOAR application because it contains less comprehensive information about an applicant’s income and resources. As such, the applicant would still need to complete an in-person or phone interview with SSA in order to complete the SSA-8000. By completing the SSA-8000 and turning it in to SSA, you can often avoid the need for this interview.

If you find that your local SSA office is not accepting the SSA-8000 from in lieu of an interview, I encourage you to reach out to your SOAR TA Center Liaison and SOAR State Lead so that they can provide local assistance.

You can complete Social Security’s Online Disability Benefits Application with your clients. This online application encompasses the SSDI application and the Adult Disability Report (i.e., replaces paper forms SSA-16 and SSA-3368).

Within 2-3 days of submitting the online disability application, you will submit three paper forms to SSA:

• SSA-8000 (SSI application)
• SSA-1696 (Appointment of Representative)
• SSA-827 (Authorization to Release Information to SSA)

Read more about the timeline for submitting these and other materials at Steps to Completing an SSI/SSDI Application Using the SOAR Model.

First and foremost we want to make sure that people who need our assistance with their SSI/SSDI applications get that assistance. That said, each provider has to make decisions about how many people they are able to serve and how many SOAR applications they complete. We recommend that when providers are not able to do a complete SOAR application with someone that they refer the individual to SSA and give them the tools to apply on their own or with another advocate.

Yes! Please see Steps to Completing an Initial SOAR SSI/SSDI Application. This guide is intended to help you complete a SOAR SSI/SSDI application in stages so that you aren’t overwhelmed.