TN 6 (06-23)
Since beneficiaries (or recipients) generally review the claims folder before the hearing, the disability determination services (DDS) and disability hearing officer (DHO) are responsible for identifying adverse effect material. See DI 29025.005 for DDS's action.
An adverse effect is a consequence likely to occur if granting direct access to an individual’s medical records is expected to cause:
A disruption of the doctor-patient relationship;
An interference with the individual's medical treatment or management; or
A negative effect on the individual in some other way.
If the beneficiary (or recipient) has an appointed representative, the entire claims folder, including adverse effect material, may be disclosed to the appointed representative and beneficiary (or recipient) in the representative's presence. Personal information about others cannot be shared with the beneficiary (or recipient) unless specifically authorized by the other individual.
See GN 03340.035 for additional policy on adverse effect.
Alert the supervisory hearing officer (SHO) or DHO of potentially adverse material identified at the pre-hearing level or that you identify during the review of the claims folder.
Determine the appropriate course of action. Generally, any report used in making the disability determination must be disclosed to the beneficiary (or recipient) and appointed representative, if applicable.
If you decide that the material is not truly adverse, disclose it to the beneficiary (or recipient). The fact that a report is marked “Confidential” or “Not To Be Disclosed” does not necessarily mean that the information in the report would truly have an adverse effect. Some sources routinely stamp reports in this fashion.
The DHU can disclose the entire claims folder, including adverse effect material, to the representative and beneficiary (or recipient) in the appointed representative's presence.
Consider a phone contact with the appointed representative prior to the hearing date and greet the appointed representative to explain the situation when they arrive for claims folder review.
Consider whether the report in question would be material to the disability determination.
Consider temporarily eliminating the report from the claims folder if the findings in the report duplicate others in the folder or if the report contains no objective or otherwise useful information. Eliminate reference(s) to the report, if any, from the Summary of Evidence and do not use the report in determining disability.
When an adverse effect is likely, individuals must identify in writing a "designated representative" to receive their medical records. A “designated representative” is different from an “appointed representative.” See GN 03340.035C Access to Medical Records for the definition of "designated representative" and complete instructions on identifying a designated representative.