Social Security News: September 2008

The Federal Managers Association has been kind enough to send me a copy of the written statement that Kathy Meinhardt, their Principle Executive Officer, will give tomorrow to the House Social Security Subcommittee. I have bolded some parts that seemed particularly important to me. Please note the highly negative early report on e-Pulling.

Chairman McNulty, Ranking Member Johnson and Members of the House Ways and Means Subcommittee on Social Security:

My name is Kathy Meinhardt and I am here today representing the nearly 800 managers in the Social Security Administration’s (SSA) Office of Disability Adjudication and Review (ODAR) in my role as Principle Executive Officer for the Federal Managers Association Chapter 275. Please allow me to take a moment and thank you for this opportunity to present our views before the Subcommittee. As federal managers, we are committed to carrying out the mission of our agency in the most efficient and cost effective manner while providing necessary services to millions of Americans.

I currently serve as the Hearing Office Director for the Minneapolis, Minnesota ODAR office, a position I have held since 2000. From 1991 – 2000, I served as the hearing office manager in the same office. I have been working for the Social Security Administration for nearly 35 years and in my years with SSA, I have supervised both claims and service units, aided in the expansion of the nationwide 1-800 number system, coordinated information technology growth, and addressed labor management relations issues. Throughout my career, I have worked in various SSA offices serving a variety of needs in Minneapolis, St. Louis, Northern Virginia, Milwaukee, Chicago and New Haven. Please keep in mind that I am here on my own time and of my own volition representing the views of FMA and do not speak on behalf of SSA.

Established in 1913, the Federal Managers Association is the largest and oldest association of managers and supervisors in the federal government. FMA was originally organized to represent the interests of civil service managers and supervisors in the Department of Defense and has since branched out to include some 35 different federal departments and agencies including many managers and supervisors within the Social Security Administration (SSA). We are a nonprofit, professional, membership-based organization dedicated to advocating excellence in public service and committed to ensuring an efficient and effective federal government. As the ODAR Managers Association of the FMA, our members and their colleagues are responsible for ensuring the successful administration of Social Security’s disability determination process and providing needed services to American customers.

As you are keenly aware, the Social Security Administration plays a vital role in serving over 160 million American workers and their families. Each month, SSA pays out benefits to 48 million beneficiaries. Over seven million low-income Americans depend on the agency’s Supplemental Security Income (SSI) program to stay afloat in a cost-inflating world, and nearly 7.2 million disabled Americans receive benefit payments through Social Security Disability Insurance (SSDI). At a February 28, 2008 hearing before the House Appropriations Committee, Commissioner Astrue testified that SSA’s productivity has increased over 15 percent since fiscal year 2001. Considering the magnitude of its mission, the Social Security Administration does a remarkable job administering critical programs.

In the Office of Disability Adjudication and Review, however, there currently exists a backlog of over 767,500 requests for a hearing. It now takes over 525 days to process a typical request for a hearing and these delays tarnish SSA’s otherwise strong record of service to the American public. At the beginning of 2002, SSA had 468,262 pending hearing requests. In six years, that number increased to over 767,000, despite the fact that dispositions are at record levels. Although clericals in hearing offices prepared 472,168 cases in FY07, claimants submitted almost 580,000 new requests during the same period. The files simply awaiting preparation for review by an Administrative Law Judge (ALJ) at the close of August 2008 totaled 450,852 cases, an increase of 12,354 cases since the beginning of fiscal year 2007. Unless something is done to reverse this trend, the number of files awaiting decisions could realistically reach one million by 2013 with the aging Baby Boom generation.

As managers and supervisors within ODAR, we are acutely aware of the impact these backlogs are having on our ability to deliver the level of service the American public deserves. I am here to confirm what you’ve heard several times before - that the ongoing lack of adequate staffing levels and resources have contributed to these backlogs. If these inadequacies continue, clearing the backlogs will be impossible and service delivery will continue to deteriorate.

BACKGROUND

By way of background, when a request for a hearing is received at a local Social Security office, it is automatically propagated to our computer system by a case intake employee in ODAR who adds ODAR-specific coding such as ALJ assignment, site of the hearing and the representative involved. Basic screening is done to ensure timeliness of filing, verify procedural issues are met, and determine the need for critical or expeditious handling. An acknowledgement is prepared and in some offices, a CD is burned and bar codes are prepared to send to the claimant or representative.

If staffing allows, ALJs or attorneys will screen the cases for anything that might qualify it as an “on the record” (OTR) decision. This allows for cases to be decided favorably and paid without a hearing based on the evidence in file. However, such cases are rare and if an OTR is not possible, the electronic record will await preparation for ALJ review. As noted earlier, there are almost 451,000 files in this status as of the end of August. The national average for this period of inactivity is 209 days. In the Dallas region, a file will wait only 82 days on average, but in Kansas City, the wait is an average of 301 days. In all but 71 offices, the wait for folder preparations exceeds the national average. These delays are simply due to the volume of work coming in and the lack of staff to tackle it. Additionally, receiving duplicative information from the claimant also taxes the staff. During all stages of the process, evidence is received in paper form or electronically and often times in both formats. Each piece of evidence creates workload items which must be filed and documented by ODAR staff.

Cases are generally worked in hearing request date order. Those cases deemed critical or dire in need may be given preference. The “workup” of the file involves a support person who reviews and orders the evidence, identifies each exhibit, obtains the jurisdictional documents, and provides a brief summary of the evidence in file. Currently, a pilot project dubbed ePulling is underway designed to automate this process. As a pilot office, I can tell you that at this stage, the process has more than doubled folder preparation time. However, this is not atypical for a pilot project and hopefully as the program moves forward and enhancements are made, we will see the average savings of 1.5 hours per case that our agency leadership is claiming.

Once the file is completed and the exhibit list is prepared, it is referred to an ALJ for review and scheduling instructions. It is then scheduled for hearing based on the individual ALJ instructions. Scheduling requires coordinating the schedules of the ALJ, the claimant, the representative, medical and vocational experts, a reporter and hearing room availability. The claimant and representative must be given a Notice of Hearing at least twenty days in advance of the hearing and these hearings can be done in person, by video in the local hearing office, a permanent remote site, or in a temporary remote site, such as a hotel or local government office.

After the case has been heard, the ALJ can make a decision or order supplemental records and a consultative examination if necessary. Once the ALJ has all the evidence and testimony needed to make a decision, he/she will write instructions for the decision writer. At the end of August, there were almost 25,000 cases nationally in which an ALJ had made a decision but was waiting for an attorney or paralegal to draft the decision.

When the written decision is completed, it is made available for the ALJ to review, edit, return for redraft if necessary, and then electronically sign. At this point, the electronically signed case sends an alert which allows the support staff to print, mail and code the case to completion. It is my understanding that this mailing process will be shortly automated to send the decision to a central mailing site. Once the decision is mailed and the coding is complete, we have a disposition.

WHERE WE ARE TODAY

We at FMA appreciate the attention both the Subcommittee and Commissioner Astrue are placing on examining the reasons for the backlog and addressing remedies to the problem. ODAR began fiscal year 2008 with 438,498 pending cases awaiting preparation for a hearing. In all likelihood, those cases will realistically wait at least one year before any action is even initiated to prepare the cases for review and hearing in front of an Administrative Law Judge. In August, processing times across the nation ranged from a low of 389 days in the Boston region to a high of 712 days in the Chicago region. The American public deserves better service.

Within ODAR, production is measured by the number of dispositions completed per day by an Administrative Law Judge. In FY05 and FY06, this record-level figure was 2.2 dispositions per day per ALJ. Thus far in FY08, ALJs have gone even further and averaged 2.28 dispositions. At the end of January 2007, SSA employed 1,088 ALJs, and dispositions in FY07 totaled 547,951, 31,000 less cases than were received in the same time period. For the current fiscal year through August, receipts totaled 541,259 while only 520,408 dispositions were completed. This amounts to a net gain of over 20,000 cases.

Earlier this year, hiring letters went out to Administrative Law Judges SSA plans to employ this fiscal year and already 189 judges have been hired in FY08. A total of 189 new ALJs could translate into an additional 94,500 – 132,300 dispositions if each ALJ issued 500 – 700 dispositions per year, as requested by the Chief ALJ in October. While this is certainly a step in the right direction, Administrative Law Judges alone will not solve the problem. Without additional staffing, the current level of prepared work would be distributed among more judges, essentially resulting in the same dispositional outcome. Without adequate support staff to prepare cases for the judges, both existing and new, we will not achieve an increase in hearing dispositions. The report issued by the SSA Office of the Inspector General in August agrees. The ALJs interviewed by the IG stated the main reason not enough hearings were scheduled was because there was insufficient support staff to prepare cases. The report also states that Hearing Office Directors believed staff ratios have a significant impact on productivity and processing times. The report concludes that SSA must hire additional staff to support the ALJs and accordingly ODAR is filling 230 staff positions. We are encouraged by this, but in order to maintain an adequate ALJ to staff ratio in each office, several hundred more staff will have to be hired.

In recent years, however, budgetary constraints have forced the agency to hire additional Administrative Law Judges without providing adequate support staff to prepare the cases for hearing. We recognize that the Commissioner is trying to address the backlog by adding these judges; however, additional ALJs without the supporting clerical staff to prepare cases in a timely manner will not solve the problem. By following in his predecessor’s footsteps, Commissioner Astrue will encounter the same problems – no matter how many new judges come on board, without clerical staff to prepare cases for them and write the decisions the backlog cannot be addressed.

Undoubtedly, adequate clerical support is necessary to prepare cases for hearing, as well as staff to write a disposition after the ALJ has made his/her decision. As it stands, hearing offices do not even have the staff to accommodate the current judges, let alone enough staff to process the over 49,000 new cases the Office of Disability Adjudication and Review receives each month. If receipts remained flat, over 767,000 cases will remain pending, more than one-third of which are over 365 days old. At the beginning of FY07, ODAR had over 63,000 cases which were over 1,000 days old, a number which was both unacceptable to the agency as well as the American people it serves. Commissioner Astrue identified these cases as ODAR’s number one priority and this backlog has since been eliminated. FMA applauds the Commissioner for his efforts and the new attention being paid to the 900 day old cases. ODAR began FY08 with 135,000 900 day old cases and is now down to 4,000. According to the IG, ODAR is on target to eliminate these cases by the end of the fiscal year. We are committed to working with the Commissioner as he tackles this challenge. In FY09, it is our understanding that ODAR will target the cases that will reach 850 days old within the fiscal year. There are over 191,000 cases that meet this criteria and it is our belief these targets are indicative of a national processing time average that is unacceptable.

With the aging Baby Boom population, it is reasonable to assume that receipts will continue to out-pace dispositions. As the requests for hearings continue to rise, more is demanded from ODAR staff on all levels. The bottom line is that the hearing offices lack sufficient staff to process the work on hand, much less even begin to work on new cases. In fact, the IG reiterates this point several times throughout his report. It is evident that under the best case scenario, the current staffing levels in ODAR barely maintain the status quo. That means that the backlog stays the same and processing times continue at a rate which exceeds 500 days.

The accepted staff to ALJ ratio is roughly four and one half production staff per ALJ. However, this only ensures productivity necessary to handle incoming work, not the backlog. For offices with heavy backlogs, the four and one half to one standard is inadequate. The interviews mentioned in the IG report disclosed that quality and composition of staff also impacts productivity. Management and administrative employees should not be included in these figures, as they are not the employees performing the production work on hearing requests.

The solutions to the backlog problem start with adequate staffing levels and timely budgets which will allow us to address the pending cases. As of last month, just over 767,000 requests for a hearing were pending. However, it is worth noting that the agency can reasonably process 450,000 – 550,000 cases during a given fiscal year. As such, the actual “backlog” at this point is around 300,000 cases.

As noted earlier, a trained, productive ALJ with adequate support staff should be able to produce about 500 – 700 dispositions in a given year. However, the IG reported that only 64 percent of ALJs were on track to meet this goal in FY08. The report also acknowledges that support staff ratios are a factor in ALJ productivity and processing times. Hearing Office Directors confirmed this finding. With a national average of 4.46 staff per ALJ, it is not surprising that 63 percent of the offices on the top half of the productivity scale had a staff ratio higher than the average.

Average pending cases per ALJ range from a low of 414 in the Boston region to a high of 775 in Seattle. Seven regions average over 600 pending cases per ALJ, four of which exceed 700. Individual offices range from a low of 262 pending cases per ALJ to a high of 1,528 and thirteen offices exceed 1,000 cases per ALJ. On a national level, processing times range from 389 days in Boston to 712 in Chicago. At the end of August, 24,810 decisions that have been made by the ALJs are simply waiting to be drafted by a decision writer. Decision writing pending, measured in the number of days it would take to complete the work, ranges from 8 days in Boston to 28 days in San Francisco. Fifty-five offices listed on the ranking report have less than ten days work while 37 have more than thirty days work on hand. Greenville has six months of writing pending, indicating a disturbingly low number of decision writers and support staff. In my office alone, over 750 cases have been decided by the ALJs, but the decisions have yet to be written due to a lack of staff to do the work. The significant imbalances in the workload and the electronic nature of our work provide opportunities for sharing resources among offices. It is our belief that this is an underutilized resource.

MANAGEMENT INITIATIVES

SSA has undertaken 37 initiatives to achieve each of the four aspects of Commissioner Astrue’s plan to eliminate the backlog. The Commissioner should be applauded for his commitment to delivering a level of service acceptable to the American public. The first of these is Compassionate Allowances, a concept that has been introduced in a variety of iterations over the years. The concept is admirable; however, we expect that this will have little impact on our pending cases.

The Commissioner also laid out a number of initiatives that are designed to Improve Performance. As already noted, there are over 191,000 cases that will age to 850 days in FY09, which means almost 33 percent of the work to be completed in FY09 will be from this very aged category and far from an acceptable processing time. Additionally, giving adjudication powers to attorney advisors has the benefit of adding to dispositions; however, it redirects the work of these very skilled attorneys from reviewing and advising ALJs on the most difficult cases and makes them unavailable for decision writing. In many instances, these employees are not replaced with others to do their original tasks and those tasks go undone or are redirected to others who are already overburdened.

The third aspect of the Commissioner’s plan is to Increase Adjudicative Capacity through Streamlined Folder Assembly, which has made additional folders available for hearings as evidenced by the 21,600 cases prepared using this method between October 2007 and April 2008. It has been expanded to the electronic folder, but this process was optional for the ALJs and requires additional review time on their part because of the “rough” nature of the preparation.

The introduction of the National Hearing Center (NHC) has the potential to greatly expand the agency’s capacity to redirect the resources where the cases are. It is our understanding that installing video centers in heavily impacted parts of the country so that the claimant can go to a video center in order to have his/her case heard by the NHC or other Hearing Office via video is the goal. We believe the potential for delivery of service with this process is huge. However, we would caution that in order to hear these cases, we still need staff to prepare, schedule and draft decisions. Without adequate staff support, the NHC will have no cases to hear.

Along the same lines, additional video equipment has the potential to expand the number of video hearings. In fact, in some impacted areas, we understand that stand alone video sites are being built that will allow assistance to be provided from around the country. However, we must not forget that without adequate staff to prepare cases, additional capacity is a moot point. Furthermore, regulations allow the claimant and their representative to opt out of the process, and our business process also allows the ALJs to opt out. The process only works when you have parties that will use it.

Increasing Efficiency with Automation and Business Processes is the fourth aspect of the Commissioner’s plan. There are a large number of initiatives under this aspect. The greatest percentage of case files are now in the electronic folder format. Although there remain many cultural and training challenges, we believe this will ultimately provide for an efficient process. Much of ODAR’s promise of increased efficiency is tied to the success of the ePulling initiative. According to the IG report, the pilot is being expanded to five hearing offices and the NHC. Rollout to additional offices is dependent on the performance of the software at the pilot locations. Minneapolis is one of those five hearing offices. We are only eight weeks into the pilot, but at this point, the process has been very time consuming and has slowed the staff down by more than 50 percent. We at FMA believe that many staffing decisions are being considered assuming the success of this initiative. We would caution that its success and ability to deliver significant numbers of folders for ALJ review anytime in the near future is overly optimistic. Successful implementation of eScheduling would certainly free up additional individuals whose services could be used to complete other tasks, including folder preparation. Given the complicated nature of the scheduling process which takes into account many schedules and many individual scheduling preferences, we believe this will be a difficult challenge.

The temporary service area realignments went a long way to adjusting some of the imbalances in the workloads. We believe that the electronic nature of our cases provides us with significant opportunities to expand this concept to individual work categories. Any office with excess writing or pulling capacity should have that capacity redirected to offices with significant backlogs. No office should be allowed to process their work in an average of under 300 days when there are 42 offices who are processing their work in 600 days at best.

The Electronic Records Express initiative also has significant promise and needs to be implemented as soon as practical. While representatives have the ability to submit records using this process, currently they do not have access to the files via a secure Web site. This requires the local office to provide CDs with the evidence and we believe results in significant duplicate submissions since they cannot confirm what evidence is on file.

Many reports are available to provide enhanced management information. Additionally, management training has been improved. These initiatives are certainly supported by FMA, as management of the workload is enhanced by trained employees and adequate tools. However, the critical issue once again is the lack of adequate staff to actually do the work. We know what needs to be done; we simply do not have enough people to do it. Furthermore, management is not allowed to hold employees accountable for production standards, making ongoing performance measures a challenge.

Ultimately, this is a numbers game. Should Congress define what it considers to be an adequate level of service, we believe the agency can define what we need to get there. None of the initiatives outlined above, whether alone or combined, is the silver bullet that will eliminate the backlog. We either have to slow the cases from coming in at the front end which would require significant changes in legislation, or we have to provide more capacity on the back end. The challenge is yours.

FUNDING

To enable SSA to meet the goals set forth in Commissioner Astrue’s four-pronged approach to eliminating the backlog, Congress must approve a sufficient level of funding for the agency. The Continuing Resolution (CR) signed into law in March 2007 was severely inadequate to address both the staffing and backlog problem at SSA for fiscal year 2007, despite the meager increase SSA received above the fiscal year 2006 appropriation. Between 2001 and 2007, Congress has appropriated, on average, $180 million less than the President has requested each year. The value of this differential is equivalent to processing an additional 177,000 initial claims and 454,000 hearings. In the ten years prior to fiscal year 2008, Congress has appropriated nearly $1.3 billion less than the President’s request. Without a doubt, this has had a devastating effect on the services provided to the American public, as evidenced by the situation we are in today.

Recognizing the needs of SSA, Congress appropriated $150 million above the President’s request for FY08 in an effort to bring down the backlog. Congress should be applauded for their commitment to serving the American people in this capacity. In fact, it is this increase which is allowing the agency to hire the additional 189 ALJs.

The President requested $10.327 billion for SSA’s administrative expenses in FY09, only $100 million below Commissioner Astrue’s request and six percent more than Congress appropriated this fiscal year. Furthermore, the House Budget Resolution (H.Con.Res. 312) recommended an additional $240 million for SSA’s administrative expenses. Ultimately, the House Labor/HHS/Education Appropriations Subcommittee allocated $100 million over the President’s budget for SSA’s salaries and expenses, while the Senate Appropriations Committee approved only $50 million above the President’s request. We applaud these efforts.

To remedy the unprecedented backlog situation, Congress should at a minimum pass the President’s 2009 budget request of $10.327 billion for SSA’s Limitation on Administrative Expenses account. Under his budget, the agency would be able to process 85,000 more hearings in FY09 than in FY08. In FY06 and FY07, SSA replaced one worker for every three that retired. The President’s budget will allow for a 1 to 1 replacement ratio. While this will not allow us to eliminate the backlog immediately, we will be able to make significant strides to reducing it. However, as the 110th Congress draws to a close and speculation over a long-term CR begins, we are once again faced with a situation where we will be forced to take a step back, instead of moving forward.

In addition to having an immediate impact on the current backlog, underfunding the Social Security Administration will negatively impact every service area of the agency. Staffing at SSA will soon reach its lowest level since 1972; however, SSA today has nearly twice the number of beneficiaries it had in 1972. SSA officials estimate that more than 40 percent of its 65,000 employees will retire by 2014. Reversing this trend is a necessary step to reducing the backlog.

CONCLUSION

While the President’s budget request for FY09 is a start, it is certainly not a cure all solution. Throwing money at the problem will not fully solve it without a well-trained, dedicated staff of federal employees willing to avert a crisis in the coming years. We believe this is the workforce we have now, strengthened under the leadership of former-Commissioner Barnhart and Commissioner Astrue. By fully funding the President’s request, we can continue this tradition.

In this era of shrinking budgets, SSA has attempted to maximize its use of scarce resources to provide the best possible service to the American public. The challenges faced by the managers and supervisors are not short term; they are a demographic reality. The same citizens putting stress on the Social Security trust fund because they are approaching retirement are also entering their most disability-prone years. ODAR is struggling to handle the current workload and will be hard pressed to manage the anticipated increase in hearing requests without additional staff.

We are the men and women who work with disabled Americans everyday. We see people of all ages come in and out of our offices seeking the services they depend on for survival from the Social Security Administration. We are committed to serving a community of Americans in need, but we need you to provide us with the necessary resources to help them. Thank you for your time and consideration of our views and I am happy to answer any questions you may have.

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