Challenging Benefits Decisions and Access to Mental Health Records
(Column: Ask the Attorney)
Empower yourself and your peers by knowing the bureaucracy
Maro Constantinou, Staff Attorney, MFY Legal Services & Jeanette Zelhof, Esq.
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Answered by Maro Constantinou, and edited by Jeanette Zelhof, Senior Attorney, MFY Legal Services, Inc.
A New York City Voices reader applied for Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) from the Social Security Administration two times. The first application, made in 2004, was denied. She appealed the determination made by Social Security and an Administrative Law Judge upheld that determination. The reasons for the denial were not stated. The second application was made in 2006 with the assistance of a provider agency. While not clear, it seems that the second application for benefits was successful although it is not clear for which benefit (SSI or SSD) she was approved.
She wants to know why her second benefits application is not retroactive to her first date of application. She also wants to know whether or not she can get a copy of her medical records from her clinical care provider.
Her first application for benefits was denied in 2004. In order to challenge a benefit denial you must request an appeal. The first stage is a hearing with an Administrative Law Judge with the Office of Disability and Adjudication Review. If the application is denied at this level she must appeal to the Appeals Council within 60 days of receipt of the decision. If denied at the Appeals Council, she must appeal to Federal Court. Filing a new application does not revive the older application or change the determination made by an Administrative Law Judge or the Appeals Council. A new application starts the disability determination process all over again.
It is most likely too late to appeal the 2004 decision if it was not appealed to the Appeal Council. There is an exception for “good cause.” She should consult with an attorney to see whether or not grounds for this exception exist in her case.
The second question is whether or not she is entitled to see her medical records. A patient has the right to review clinical records maintained by a "facility" where she was, or is, a patient/client, pursuant to Mental Hygiene Law §33.16. Such facilities are also under a duty to keep sufficient records of her treatment. However, they can regulate the scope of the record keeping, which means that they might not keep every record relating to her.
First, "facilities" are those regulated by the State Office of Mental Health (OMH). Check with OMH’s Certification Unit (518-474-5578) to find out whether or not the provider program is certified by OMH. If it is, the agency’s records are covered by the Mental Hygiene Law. Facilities not certified may have similar obligations, but they would not arise from the Mental Hygiene Law. They may exist in contracts they have with other agencies, like the City's Department of Health and Mental Hygiene. Check those contracts to see what rights are provided.
Secondly, the provider has an obligation to maintain a record for her and to give her "reasonable" access to that record. Accordingly, she can write to the director of the provider agency and formally request to review her file pursuant to Mental Hygiene Law §33.16. As §33.16(b) states, the provider must give her an opportunity to review the record within 10 days, unless they determine that under §33.16(c): "the requested review of the clinical record can reasonably be expected to cause substantial and identifiable harm to the patient or client or others which would outweigh the qualified person's right of access to the record."
If that is what they decide, she has the right to be informed of that denial and to "appeal" §33.16(c). They could also charge her for any copies that she may want, but not more than $0.75 per page.
If the providers are not certified by OMH, she should ask which agency oversees them and ask to review a copy of the contract to see if there are any record review rights to which she is entitled.
If anyone needs further information, they may call the Mental Health Law Project at MFY Legal Services at (212) 417-3830, Monday through Friday, from 10 AM until 5 PM.
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