ALJ Quality Assurance Plan Being Planned

Below is an excerpt from "Plan To Eliminate The Hearing Backlog And Prevent Its Recurrence", which was released by the Social Security Administration last week, apparently as a response to the CBS News reports on the Social Security disability problems:

A quality assurance program for the hearing process will provide in line review of the claim file, the scheduling process and decision drafting to ensure that ODAR [Office of Disability Adjudication and Review] is providing timely and legally sufficient hearings and decisions. ODAR has been working with Office of Quality Performance (OQP) to design a process by which a random statistically accurate sample of cases is identified for review. This process is being developed in conjunction with the standardized electronic business process. The Regional Attorneys will be charged with the additional responsibility of overseeing the Quality Assurance (QA) program. They will receive additional staff that will be assigned to the Regional Office, but may be out-stationed to various hearing offices to review claim files at three points in the process. The files will be flagged and reviewed once a hearing has been scheduled and again once a draft of a decision has been prepared. In addition to these two processes the QA process will also involve an in-line review of the Senior Attorney Adjudicator process. QA employees will review the file for certain criteria and make appropriate recommendations to management for correction. In addition, under the direction of the Regional Attorney, they will prepare reports and track trends for training purposes. In some instances they will also be responsible for developing the training.

Basically, if you think that 97% of reconsideration denials are accurate, you would love this idea, because it would bring to Administrative Law Judges (ALJs) the same concept that keeps the allowance rate at reconsideration below 15%.

This would, in theory, cause the backlog of claimants awaiting hearings to go down, because claimants would have a lower rate of success before ALJs and would have less incentive to request hearings.

I do not want to get too excited about this. I have heard of other ideas for a quality assurance program for ALJs before and they never went anywhere. This does seem a bit more fleshed out than prior plans I have heard about, but let me list some of the difficulties that Michael Astrue would have in implementing this:

1. Probably, most high level career people at Social Security will be hesitant to have their fingerprints on this plan, since anyone promoting the idea could be in trouble with a change in the Commissioner's office. That could easily happen next year. Finding anyone willing to manage even part of this might be difficult.
2. Finding people willing to work in an ALJ quality assurance program would be difficult. It was hard to find people willing to work as Federal Reviewing Officers. Those foolish enough to take those jobs are now twisting in the wind. Their jobs are being eliminated by a new Commissioner of Social Security who is uninterested in his predecessor's plan. Somewhere down the road, the same thing may happen to anyone who takes a job in an ALJ quality assurance program.
   
3. This would cost a fair amount of money. It is hard to imagine a Congress controlled, even in part, by Democrats appropriating money for this. It is hard to imagine even one house of Congress passing to Republican control next year, much less both.
4. Social Security is already getting media criticism for denying too many meritorious disability claims. An ALJ quality assurance program would lead to more meritorious claims being denied. Implementation of such a plan would result in an incredible amount of media and Congressional attention.
   
5. What do you think that attorneys who represent Social Security claimants are going to do if a quality assurance program reduces the ALJ reversal rate dramatically? Do you think we would just slink away? No, we would litigate. The last time that the Social Security Administration faced a huge wave of litigation was in the early 1980s when the Reagan Administration tried to cut off disability benefits for several hundred thousand claimants. As best I can recall, the Social Security Administration faced something like 30,000 civil actions a year at that time. Social Security attorneys are far more numerous and far more sophisticated than they were 25 years ago. We could easily give the Social Security Administration a lot more than 30,000 civil actions a year; many times that number, in fact. Could the Social Security Administration handle that? Could the federal courts? It did not take long in the early 1980s for the federal courts to figure out who brought on that spate of litigation and to take forceful action to bring the Social Security Administration to heel.
   
6. It is hard to imagine any way of implementing a quality assurance program in a way that would not violate the Administrative Procedure Act, unless you make it a government representative program. A government representative program would certainly need regulations and that would take well past the end of the Bush Administration. I have trouble imagining any of the leading Presidential candidates, both Republicans or Democrats, approving such regulations.
   
7. The Equal Access to Justice Act (EAJA) allows prevailing parties to obtain reimbursement for their attorney fees. There has long been a mistaken belief that Social Security's administrative hearings are exempt from EAJA. Actually, there is no explicit exemption for Social Security. EAJA applies to "adversary adjudications" and adversary adjudications are those in which an agency takes a position. Social Security's hearings have been non-adversial, so EAJA has not applied. This plan is for personnel in Social Security's Office of General Counsel to look at case files before ALJ hearings. For what purpose would they look at the case files other than to "advise" ALJs on how they should decide cases? That sounds a lot like taking a position on the outcome of the case. Take a look at the figures I posted recently about attorney fee payments in Social Security cases last year. EAJA for Social Security administrative hearings could cost the Social Security Administration hundreds of millions of dollars a year -- and no agency gets an appropriation to cover EAJA fees.

The one thing that this proposal tells us for sure is that Commissioner Astrue is not planning to bow gracefully to pressure from Congress and the media to do something to help Social Security disability claimants. He seems ready for a fight.