NTEU On The Future At SSA

As reported on the Association of Attorney Advisors board (and yes, that is a rather new board), this is a message from the National Treasury Employees Union (NTEU) to its Social Security attorney advisor members, who write decision for Administrative Law Judges:

March 19, 2007
Folks:
The Importance of Addressing the Backlog

Members of the Subcommittee on Social Security of the House Committee on Ways and Means have made in clear that addressing the backlog at ODAR hearing offices should be of the highest priority. This is a significant change, and one that bodes well for us. SSA is under considerable pressure to deal with the backlog, and there is little doubt that Commissioner Astrue understands the situation and is committed to effectively dealing with it. However, it is equally clear that presently hearing offices cannot effectively deal with the backlog. Congressman Michael R. McNulty, Chairman of the Social Security Subcommittee, and Congressman Sam Johnson, the ranking member of that Subcommittee, sent a letter dated March 15, 2007 to Congressmen John Spratt and Paul Ryan, the Chairman and ranking member, respectively, of the House Committee on the Budget seeking to significantly increase the appropriations to SSA. Prominently cited in that letter was the size and impact of the Hearings level backlog.
Commissioner Astrue: We have a solution to the backlog crisis that could be implemented immediately; that is cost effective; and that has a history of success – an enhanced version the original Senior Attorney Program. We can provide the Agency with an additional 100,000 legally defensible decisions a year without adversely impacting ALJ productivity or the payment rate.

DSI

Commissioner Astrue has stated that he will review DSI in detail prior to deciding which DSI programs will be retained, which will be terminated, and which will be altered. Currently, there are a number of rumors floating around that indicate that the FedRO program will be terminated. While we emphasize that we have no definitive “inside knowledge” regarding the veracity of these rumors, we believe that they may well be true. The implementation of the FedRO program has been a disappointment to many, including NTEU Chapter 224, and it may well be following the path of the Disability Redesign and HPI. In any event DSI was never intended to offer immediate relief to the Hearings level backlog.

As you will recall, we have been a supporter of the FedRO concept - as it was originally formulated in 2003. We have vigorously cautioned against significant changes from the original concept of an independent decision maker located in the field. We have been very disappointed that our warnings were ignored. Simply stated, the FedRO program that was implemented is not the FedRO program we supported. We believe that the FedRO program as presently constituted is seriously flawed, and consequently, we are not surprised by its relative lack of success despite the talent and dedication of the current FedROs. The bureaucratic reengineering of the FedRO concept may simply have been too much to overcome.

As the FedRO program rolled out, it became clear that the original concept, an independent decision maker empowered to review appeals of state agency determinations and render legally defensible decisions, had not been realized, and that the FedRO had been turned into a “federal reconsideration”. Bureaucratic red tape has all but precluded efficiency and substantially increased the cost of the program. In these times of tight budgets funding a new, expensive, and not terribly productive program may be unsustainable. On the other hand, shifting the priorities of the disability program from DSI to eliminating the hearing office backlog certainly should benefit Attorney Advisers currently in the hearing offices.

In addition to cost, we fear that operational errors have significantly limited the effectiveness of the FedRO program. The FedROs were not located locally; rather they were placed in Falls Church, depriving the program of many, many highly qualified individuals, the Agency’s attorneys in the field. The decisional independence of FedROs has been seriously eroded by the influence of the “medical units”, the “quality assurance process” and even the FedRO management structure. Additionally, FedROs have been discouraged from producing high quality, legally defensible decisions and are burdened with an inadequate decision drafting format.

The Future

We again emphasize that we have no definitive knowledge regarding the fate of the FedRO program. Commissioner Astrue could decide to continue it, alter it to enhance its viability, or terminate it. Nonetheless, we believe it is a possibility that it will be terminated. What is the impact of the potential demise of the FedRO program on Attorney Advisers in hearing offices? Obviously, the demise of this program would be a blow to those who hoped to become FedROs in the future. However, whether or not the FedRO program continues, the crisis at the hearing level must be addressed.

Can SSA afford to continue to ignore us? Will SSA continue to ignore its own history or will it finally recognize that the Senior Attorney Program was instrumental in eliminating the backlog of the 1990’s? Will SSA again recognize that we are the solution? We are doing our utmost to make SSA and Congress understand what is in their best interest and the best interest of the claimants and the public at large. Hopefully, SSA will finally listen and implement our improved version of the Senior Attorney Program.

- Jim Hill