Jun 26, 2016

Electronic Bench Book Controversial

     Social Security has spent $25 million to develop and implement "electronic Bench Book" (eBB), a system to process hearing decisions. Only 20% of Administrative Law Judges use it. A recent report by Social Security's Office of Inspector General (OIG) shows that it is controversial. Many at Social Security believe it increases processing time. Here's a chart based upon interviews of those who use eBB showing what OIG heard from ALJs and others who have used or tried to use eBB.

33 comments:

Anonymous said...

Generally, it makes it easier for writers because it comes closer to forcing the ALJ to provide policy compliant instructions. It also forces typed instructions rather than chicken scratch, but the ALJs don't care about the writers again generally.

Young ALJs who are not computer illiterate use it. Old timers, as in any walk of life, are unnecessarily resistant to change. The agency should force its use. ALJs who are trained on it from the beginning (new ALJs) don't go back. It's faster overall once you know what you are doing. Must faster for the writer, with proper use. It allows the ALJ to bookmark evidence and opinions they placed greatest weight in so the writer is not re-reviewing the file. ALJs with the mentality cited in the report of "I'd retire before using EBB" are exactly the type of ALJ we need to retire. These are the judges that want to write smiley face / frown face instructions.

It's sad that the agency feels it can't or shouldn't force use. Even the report gets it wrong by labeling ALJs "Judicially Independent" they are not judicially independent they have decisional independence. Requiring the use of certain tools does not put any pressure on your decision one way or another. Its akin to an ALJ walking in the door and saying he/she must work on a Mac computer rather than a PC.

Anonymous said...

It's a collaborative tool whose purpose is to add more information on the front end of the process, mostly to aid ALJs by shortening their file review, hearing prep, and instruction drafting time. This means master docket and the workup SCT are spending more time on these cases to complete their portions of the eBB for a case.

eBB also forces ALJs to address all relevant findings, etc., and create much more thorough, policy compliant instructions. Assuming all of this information was added to the eBB for a case, the writer starts off with a bit more of their decision completed when the decision is first created and presumably will spend a little less time on drafting the decision.

Thus, eBB is centered around benefitting the ALJs, and to a lesser extent writers. However, if an ALJ doesn't use it, then pretty much all of the benefits evaporate and all you've done is waste time on the front end for info that is never seen or used.

The biggest factor for eBB's success is if ALJs will adopt eBB en masse, which likely requires the Agency to force them to use it. Note that newer, presumably tech literate ALJs make up far more than 20% of our ALJs at this point, so clearly a number of them are not using it. The way I see it, if SSA doesn't force ALJs to use eBB, then it will never be successful.

Anonymous said...

For what it's worth OIG said in the report that mandating use of eBB for ALJs did not encroach on judicial independence or other APA protections.

Anonymous said...

judges don't use eBB because eBB is far too complicated and unnecesary for what typically goes into favorable instructions, especially when the claimant grids. An experienced judge can draft favorable instructions in FIT (eBB's predecessor) in 5-10 minutes and quickly cite to the 2-3 relevant pieces of evidence that make the case favorable. eBB requires far too many inputs and checkboxes to be filled out even in favorable instructions for it to be an efficient use of a judges time. While it is a good program for forcing a judge to make sure all the relevant issues are covered in a complex unfavorable decision, it just is simply not needed for the more typical cases and judges aren't prone to use more than one system to do their instructions.

The output also does not look professional (eBB was built on the eCAT platform so it looks very similar to a state agency DDE when the "document" generates including the dot matrix style font) and does not have the key info the writer needs to understand the case right at the top of the instructions as FIT does. Its virtually impossible to attempt to print out anything eBB generates because the typeface is so small whereas, again, FIT outputs to a traditional word document.

Word on the street is that eBB has been cancelled for all practical purposes and the new marching orders are to create essentially a web based version of FIT with some eBB elements kept in in an attempt to save face on all the money wasted on eBB.

Anonymous said...

I agree with 8:59 and 9:38 and I'll add this. While eBB does "force" ALJs to provide more information, it is more than just a tool for helping provide writing instructions.

It is meant to be used for the ENTIRE review and processing of a case by an ALJ. This means that the ALJ should be using it when reviewing the case, should be using it during the hearing, should be using it during post-hearing review and finally should use it to compile instructions. If it is used only piecemeal and half-heartedly, it's not a very useful tool.

In my office, we have NO ALJs who use it. When it was "rolled out" to our ALJs they universally decried it as too complicated, despite the fact that none of them actually tried to use it. It's the old adage of "can't teach an old dog new tricks." Those who use it, swear by it and their efficiency shows. Those who don't use it, are comfortable with their "system" (no matter how inefficient and frustrating) and are not willing to change.

eBB will become more popular, because all new ALJs are taught how to use it (and are not given another option). Much like anything in the agency, it's a good tool that is being undermined by complaining.

Anonymous said...

@ 11:19

Are you serious? Half of your complaint about eBB relates to how it prints out. eBB is an ELECTRONIC tool, in fact, it's the first word in the title. There is no need, ever, to print out information from eBB. It is meant to be a "live" tool that is updated frequently, therefore, any printed data is stale and should not be relied upon.

Anonymous said...

I'm just flabbergasted that SSA spent $5 million on this. That is over $16,500 per ALJ. When we look at the actual number using it (300 per the report), its more like $83,000 per ALJ!

Anonymous said...

Took the class, got a mentor, and tried eBB. It is clunky, more time intensive and far less efficient that the system I already had in place. So I rejected it. So not every 'old-timer' just rejected it out of hand. Mandating that every judge do their work exactly the same, whether it be eBB or anything else, is a bad idea since people are different and need to be able to work the way they are most efficient.

Anonymous said...

@ 11:48

I have the same sentiment when I see ALJs demand their clerks to print out things for them that are right there in the e-file. It always makes me remember that part in Back to the Future Part II where Marty starts playing Hogan's Alley and the future kids make fun of him and call it a baby's game because you have to use your hands to physically manipulate it.

Anonymous said...

Used it exclusively for a week. Took 6 weeks to straighten out the mess. Also, did you know that the ability to type is not a requirement to be an ALJ??

Anonymous said...

The report says only 20% of ALJ's use eBB at all. I'd be shocked if there are 20% of ALJ's who use eBB all the way through doing instructions. I use it in hearings in lieu of a case fact sheet but besides that stay away from it. I tried it for instructions for a month about a year ago. Too much time, too many inputs, too many questions I had to answer for the 1 out of a 100 case, but eBB would tell me my instructions contained "errors" if I didn't answer them...

Anonymous said...

There's a government waste hotline number at the bottom of the OIG report. I think $25,000,000 for software that only 300 ALJs sporadically make use of after 7 years qualifies. eBB doesn't go far enough. eBB has a lot of indispensable features for any agency trying to process over a million disability applications. In essence, it creates a shared virtual space where all employees collaborate on the case. Same concept underlies pretty much every innovation since the digital revolution began - helping people communicate and collaborate. ALJs who object that they can do it faster their own way are almost always just taking shortcuts that they wouldn't be able to defend if challenged by their peers, or writers, or management. They're just attached to habit and don't want to change, like most human beings. The amazing thing is that with such a monumental backlog they are still given that option. The solution is to make eBB so much better that any ALJ would immediately see the benefit of using it, while at the same time ensuring that it eliminates as many ways to screw up instructions as is humanly possible. And then mandating its use. I can't really think of a good reason why better and better software is advancing every other field in society, but for some reason it just isn't possible for social security disability adjudication purposes. Especially for $25 million.

Anonymous said...

7:04, do you have some type of vested interest or are just od'ing on the Agency Line Koolaid?

EBB does not work properly. The disability system is incredibly complex and no matter how much the clowns in Systems (our IT people are IT specialists like our paralegals are paralegal specialists, sorry but its the truth) or the Boozy contractors try, they are not even close to a platform that is going to solve all the problems.

Instead of spending all of this money on nonsense, they should have hired more bodies to work the cases correctly.

Wow, we are truly doomed!

Anonymous said...

lol keep telling yourself that... its not "incredibly complex" people just say that to maintain their jobs. its actually pretty simple. technology is on the verge of having a computer program read the medical records and hearing testimony and spitting out a decision.

remember we're not concerned with credibility anymore, only consistency.

David Hatfield said...

This should have been a classic case of "if it ain't broke, don't fix it", but some just could not leave well enough alone. FIT was designed by a handful of users from the hearings operation. Decisions were made by me, an ALJ, with input from users. Then Commissioner Barnhart saw the wisdom of allowing adjudicators to create their own tools, and she gave me full decision authority to make it happen. It was done by users for users. Expenses were virtually zero, utilizing the amazing talents of SSA's DGS staff. We created the system in less than a year, and by the following year almost every decision was written in FIT and it was embraced by almost every ALJ. Why? It saved folks time, and led to better written decisions. ALJs liked it because the quality of drafts increased, allowing the ALJs to hear and decide more cases instead of editing drafts all day. Decision writers liked it as the prompts inside the templates gave them a virtual GPS, saving them time and reducing errors. Perhaps most importantly it allowed for flexibility and did not impede the huge process of hearing and deciding cases. We never had to mandate its use, as users wanted it. We made modifications based on user input, and everything we did was with the user in mind. We were not concerned with data mining, or production of management reports. FIT was all about making the adjudication process better in quantity and quality. We built in SmartFIT features that eliminated obvious errors, such as not allowing a favorable decision to be written when the date last insured expired before the established onset date, or not allowing a case to be denied when the medical/vocational Grid directed a conclusion of disabled.
True, FIT was and is just a WORD product. But when the agency was looking at a web-based system, it could have easily converted FIT. We urged that. But some thought the hearing level could be converted to the eCAT system that was being designed for the DDS. We tried to convince folks that while the polices at the levels are the same, the adjudicative operations are very different. FIT "fit" the hearings operation. I thought they were listening. eBB was then created, and I, along with a colleague, sat down with a big group of people, none of them hearings operation employees, attempting to guide them toward FIT. However, unlike FIT, eBB had many masters and agendas, each wanting features to serve their own purposes (eg, data mining), or who still wanted elements of eCAT at the hearings level. The primary purpose of creating an adjudicative tool was frustrated. It was clear decisions had been and were being made behind the scenes. As a result, 4 years and a lot of money expended later, eBB is still struggling. It is a case of too many cooks in the kitchen, with many of them never having cooked a meal.

Anonymous said...

Thank you for the perspective David.

I'm sure some contractors got rich along the way with this colossal waste of tax payer money and Agency time.

Anonymous said...

as a young computer literate alj and a former decision writer I tried ebb for a year and it added CONSIDERABLY to my processing time. any so called improvements since then still created a slow sludgy mess. Any judge is trained and therefore familiar with agency policy and if not should be reminded of it but that in itself does not warrant following the ebb format because a small minority of judges on some of their cases failed to provide policy compliant decisions. an easier method could be invoked which meets all the goals.

Anonymous said...

Look at the chart that was posted. The positive comments (in blue) all show improved policy compliance, access to resources, ease of use, good organization, etc.

The complaints (red) are essentially complaints about the design and that it is difficult to use. Coincidentally (sarcasm) these are the typical complaints of users of ANY new system. They don't like it because it is a change and change is SOOO hard.

Time for ALJs to move to the electronic age. No more handwritten notes and no more "up" or "down" arrow.

Anonymous said...

Mr. Hatfield is sort of right. The whole reason we had to create eBB is because, rather than force ALJs to issue policy-compliant decision instructions, SSA instead chose to craft a system that would sort of do that for them. Because SSA has a severe allergy to forcing ALJs to do anything, even when it clearly has nothing to do with their qualified judicial independence.

David Hatfield said...

2:26 PM makes a telling comment: "we had to create eBB because, rather than force ALJs to issue policy-compliant instructions, SSA instead chose to craft a system that would sort of do that for them". Interesting. Policy-compliant instructions? FIT had wonderful ALJ instructions that met the HALLEX standard at that time and allowed the ALJ to cut and paste from the file and write prehearing and hearing notes along with their instructions, all in one package. It was very handy, flexible to the facts of the case, and we had many ALJs using it. eBB then came along and tried to cram every nook and cranny of the law into the instructions, forcing ALJs to click buttons that were not relevant to the case, having links everywhere to Rulings and Regs, and basically slow them down. It was instructions on steroids. At one point they even had the eCAT RFC that one had to go through and then certify it as correct (I understand they did get rid of that). Then HALLEX was revised to require many more "items" in an ALJ instruction, to follow eBB so that the instructions would now be "policy compliant". What SSA fails to understand is that the ALJ instruction is the communication device to the writer, not some policy compliant part of the decision itself. Certainly some ALJ instructions have and are woefully inadequate, but creating a monster that slows everyone down is not the solution, particularly with a million plus backlog.

Anonymous said...

10:18

I don't know what universe you live in but clearly it has nothing to do with the disability decision making process. If you do live in the disability decision making process universe and you still think it is not a complex process, then clearly you are not doing your job.

My guess is you are an IT "specialist" or a bean counter from operations. People like you are not part of the problem they ARE the problem.

On another note, Judge Hatfield please come back we need you. I vote Judge Hatfield for commissioner.

Anonymous said...

Right before his ouster, I heard former DC Sklar address a new ALJ class. Part of his pep talk included comments about EBB. "We want to be Apple not IBM, Tesla not GM" he said while completely missing the point. The gifts of Apple and Tesla are elegant design and simplicity of use. EBB is neither, it's a defective state agency tool crudely modified for ALJ use. We have an elegant simple program in FIT. Add a few extra functions, like maybe a drop down check page for the RFC for example or a modified reopening section.

Bring on web based FIT.

Anonymous said...

The biggest issue with eBB is one that I've heard from innumerable ALJs: most decision-writer drafts are 6-8 pages (for a favorable decision) and 10-15 pages (for an unfavorable). The eBB document generated to the decision writer, if you were to print it, runs about 15-20 pages alone. FIT instructions run, typically, 2-3 pages (and occasionally 4). That fact alone makes the entire eBB system an intellectual disaster. It is faster for the ALJ to write the FF decision herself than to generate a 15-page document to the writer and then wait 4-6 weeks to get back a 10-page draft.

Anonymous said...

The key issue is why has the Agency chosen to funnel millions into a program that just a fifth of the ALJs are using? Why are they no longer supporting a program that about 75% are using? This level of stubbornness is inexcusable.

Last summer, an edict was issued whereby the SCTs no longer generate case fact sheets in adult disability cases. This sneakily forced the ALJs to open the eBB in order to get the basic summary sheet. So now the bean counters can say, all the ALJs are using eBB, even though most are not doing anything beyond getting the CIS. (And yeah, now the ALJ has to open two programs - eBB and eview, adding a few minutes to every case reviewed. The cumulative costs are staggering).

Anonymous said...

@ 3:21

2:26 here--I agree. FIT instructions are fine by me, as long as they don't bring back FIT Enhanced ;). The problem was never the instruction writing medium, it was the Agency's failure to force all ALJs to issue good instructions period. Rather than address the relatively small cadre of smiley face/frowny face judges' wholly inadequate instructions, they instead chose to make the instruction creating medium more and more intensive to passively achieve the same outcome.

It isn't working.

Anonymous said...

Agree that ALJs should not be forced to do their work in a particular manner. Could see EBB as an alternative. But it looks like an expensive and wasteful alternative to some.

Kudos to ALJ Hatfield. Appreciate the comments from an ALJ. No need to be adversarial all the time between attorneys and ALJs.

Anonymous said...

I don't get it. Aljs are doing these cases at a rate of 500 to 700 a year, right? So, taking into account holidays and vacation time, an alj does a minimum of 2 cases a day? If so, then how "complex" can their work really be? Some cases might raise complex issues, but does this system really need 1500+ aljs doing each and every claim at the hearing level? Is the unnecessary cost of floating 1500+ alj salaries/benefits contributing to the overburdened system?

Anonymous said...

The assumption that "old timers" are not computer literate is untrue. The age of the ALJ has nothing to do with this issue. There are plenty of experienced ALJs who are very computer literate. My office has one very experienced "older" ALJ who is extremely adopt at technology. He used eBB for about a year and then chose to stop using it. He said he got more questions about his instructions while using eBB in one year than he had in the previous 20+ years combined. Most people find it very cumbersome. Web based FIT makes more sense -- take the best features of eBB and use them in web based FIT.

Anonymous said...

@7:56 PM: You're blaming the victim here. The system is overburdened because there aren't *enough* ALJs to handle the escalating hearing workload. The 500-700 workload is unrealistic, yes, but the fact that ALJs can do it is a major *credit* to the ALJ corps.

Management is trying to turn judging into unskilled work, yes. It's easy for field office personnel to mock the ALJs, but ALJs actually have to worry about policy compliance; we could never get away with the shoddy, lazy reasoning that goes into the State agency eCAT denials. Your 34-year-old decision-writing GS-12 attorney who's never practiced law a day in his life, but belonged to the Federalist Society in law school and is aghast at government spending, also finds it easy to mock.

But, issuing 500 *legally compliant* decisions a year, in the face of constant "reminders" from management about case status, and escalating file sizes (600-800 pages per file is the norm at my ODAR), makes the ALJ job full of non-stop demands day after day. Non-stop. Decision-fatigue sets in usually by hearing #5 or #6 of an 8-hearing day. The fact that ALJs can produce 500 legally sufficient decisions a year under this system is a huge testament to the corps. Replacing us with field office personnel, or GS-14s from Falls Church with no trial experience, might save some money on the front end, but it would result in weaker decisions, more appeals, and a higher workload on the back end. Eliminating us = penny wise, pound foolish.

Anonymous said...

Something the vast majority of ALJs are doing cannot be considered unrealistic. Realistically, you don't have to worry about anything, let alone policy compliance, you're essentially unfireable.

Why would an ALJ need trial experience? Its a non-adversarial hearing and you're not assessing credibility.

Dump the ALJs and their 165k salaries. Throw a GS-13 hearing officer in there. Let him complete essentially a check box form for favorables and maybe some addition explanation for an unfavorable. Even if there is more appeals leave that to the trial professionals at DOJ. Pass that cost to the article 3 courts and DOJ. Let us concentrate on retirement benefits, our core function, you know what the rich people care about.

Better yet, outsource the entire administrative adjudication system to a company like Deloitte or Aon Hewitt or ADP. They give you your due process hearing and make a decision. You can still appeal to a real court. You transition to a system where management has control over its employees. Most employees in a typical ODAR office have little to no fear of ever being fired. That lack of fear is a huge problem. Give it to a company in an at-will employment atmosphere. Experience efficiency.

Anonymous said...

What SSA fails to understand is that the ALJ instruction is the communication device to the writer, not some policy compliant part of the decision itself.
BOOM goes the dynamite!

eBB is a mostly improved note taking tool but it still isn't a one-stop shop and it asks for entirely too many inputs for the typical case and copes poorly with the unusual case (for example a DIB, DI, CDBD where three different dates are in play for possible onset and two possible dates for last insured).

As to the idea hearings are not about credibility. Well that is the agency line but in no way the truth. In dealing with subjective complaints there is always an assessment of whether the alleged complaints are consistent with the medical file and whether how the claimant has dealt with the access to treatment is consistent with degree of impairment alleged.

Anonymous said...

There is agency policy governing instructions the same way there is agency policy governing the time and place to show up. The decision is not the only thing subject to policy compliance.

The employee himself is subject to agency policies so long as these policies do not direct a disability determination one way or another.

Requirements for writing instructions are akin to a required dress code.

Anonymous said...

@ 8:58 AM

Because outsourcing to private contractors has worked out SO well in the past for our government. (E.g. healthcare, education, prisons, transportation, etc.) What you are advocating for is even worse than DDS.

An employee shouldn't have to fear being fired all the time. Rather, they should be properly trained and not overworked due to lack of funding for their agency, a glut of claims to work on, and a maze of administrative regulations with contradictory internal policies that further quagmires the job while Republicans in Congress won't confirm a Commissioner for them but will attempt to defund the Agency.

I'm not saying, as a non-attorney rep, that I approve of how the Agency often does its job, but I can at least see that it's being asked to do an difficult job on a starvation diet with both bureaucrats and politicians breathing down their neck. Which makes it, ultimately, impossible these days.