Performance And Accountability Report FY 2008

The Social Security Administration has released its Performance and Accountability Report for fiscal year 2008. The report measures the agency against various criteria it has set for itself.

In a sense, it is hard to argue with the criteria used. These are reasonable criteria for Social Security given the budget the agency is working with. In another sense, the criteria are a glaring example of "defining deviancy downwards." Major problem areas such as telephone service and field office waiting time are avoided altogether. The criteria for judging success in holding hearings on Social Security disability claims are far, far below what anyone would judge to be acceptable.

By the way, hidden on page 104 is an admission that the Social Security Administration owes claimants over $2 billion as part of the SDW (Special Disability Workload), which is accumulated mistakes in paying benefits made over a long period of time that were discovered by analysis of Social Security's databases. The SDW backlog is being worked down over a long period of time -- many years. It is a labor intensive business that deserves public attention. It should have been done quicker, but the resources have not been available.

GAO Report On Questions To Ask Nominees

The Government Accountability Office (GAO) has produced a long report dealing with the questions that might be asked of nominees to positions in the new Administration for each agency, including Social Security. The part concerning Social Security begins at page 124.

The Social Security part reflects the biases of GAO, which I believe reflect a basically Republican take on Social Security. Some themes:

• Social Security ought to get into the effort to mainstream people with disabilities by denying more of their Social Security disability claims and by somehow forcing those who get on benefits to go back to work.
  
• If there are backlogs at Social Security, it must be because of bad management
• Why can't Social Security close more field offices and reduce its workforce?
• Further resources for Social Security are out of the question, so it's only a question of spreading the pain around.
• And, of course, it's time for Democrats to get on board with cutting Social Security benefits because the trust fund is about to run out of money.
  

I know the list I am giving is a gross exaggeration of the GAO report, but there are assumptions written between the lines of this report and they are not the sort of assumptions that should be made in this political environment. Someone at GAO needs to wake up and figure out that come January 20 the Democrats will control the White House and the Congress.

Deflation And The COLA

The cost of living went down by a record 1% last month. This was too late to figure into this year's cost of living adjustment (COLA) for Social Security benefits and will be factored into next year's COLA computation. It appears that the United States is heading rapidly into a major recession. It is entirely possible that the cost of living will have declined over the year time leading up to next year's COLA computation. This raises an interesting question: Could there be a negative COLA next year that would reduce Social Security benefits?

The answer appears to be no. The statute is 42 U.S.C. §415(i). It talks at considerable length about how to compute an increase in Social Security benefits due to inflation. The word "increase" appears over and over in the statute. I doubt that one could reasonable interpret the statute to allow computation of a negative COLA for Social Security benefits. Still, this appears to me that Social Security should request an interpretation on this from the new Attorney General.

Happy Thanksgiving!

De Soto And Chatel Both Responsible For DSI, Both Going To FEI

Lisa de Soto and Mary Chatel both bear a heavy responsibility for the disastrous Disability Service Improvement (DSI) scheme. DSI was former Commissioner Barnhart's baby and she bears the most responsibility, but de Soto and Chatel were to blame, as well, since they were heavilyinvolved in planning and promoting DSI. Although Martin Gerry, who was also responsible for DSI, was abruptly fired after the current Commissioner took over, de Soto and Chatel, to my surprise, stayed at Social Security. De Soto even remained in a high position.

Both are now leaving Social Security to go to the Federal Executive Institute.

E-Mail From Astrue On Staff Changes

DATE: November 25, 2008

TO: Senior Staff

FROM: Michael J. Astrue /s/
Commissioner

SUBJECT: Executive Personnel Assignments - INFORMATION

Under Lisa deSoto’s leadership for the past three years, the Office of Disability Adjudication and Review has met ambitious goals and made tremendous business process improvements that have set the stage for eliminating the disability backlog. Lisa has accepted an offer from the Federal Executive Institute (FEI) to teach and share her leadership skills with new and aspiring executives from across government for the next two years. While we will miss Lisa’s passion and vision, it is a unique opportunity for her to reflect, learn, and then return to the agency with a broadened perspective. Lisa will begin her Executive-in-Residency with the FEI on January 16, 2009.

Upon Lisa’s departure, David Foster will become the Deputy Commissioner for Disability Adjudication and Review.

On November 24, Jim Winn will become Chief of Staff and Jo Tittel will become Deputy Chief of Staff. LaTina Greene, who has been serving as the Chief of Staff’s Special Assistant, will move to the Office of Central Operations as Deputy Associate Commissioner on January 16, 2009.

In the Office of Retirement and Disability Policy, effective immediately, JoEllen Felice is the Associate Commissioner for Income Security Programs, a capacity in which she has been acting since July 2008.

In the Office of Systems, Pete Malinauskas, Associate Commissioner for Retirement and Survivors Insurance Systems, is retiring on January 3, 2009. Bill Zielinski, currently the Deputy Associate Commissioner for Applications and Supplemental Security Income Systems, will become Associate Commissioner upon Pete’s retirement. The Deputy Associate Commissioner position Bill vacates will continue to be available as an SES Candidate Development Program assignment.

In the Office of Telecommunications and Systems Operations, Gary Augustine has moved from Assistant Associate Commissioner for Enterprise IT Operations and Security to the Assistant Associate Commissioner for Infrastructure Architecture and Security. Marti Eckert, formerly the Deputy Associate Commissioner for Systems Electronic Services, is now the Assistant Associate Commissioner for Enterprise IT Operations and Security. The Deputy Associate Commissioner for Systems Electronic Services will be available as an SES Candidate Development Program assignment.

In the Office of Budget, Finance and Management’s Office of Facilities Management, Betsy Bake has been appointed as Deputy Associate Commissioner for Facilities Management following Nancy McCullough’s retirement earlier this month.

In the Office of Human Resources, Assistant Deputy Commissioner, Feli Sola-Carter, has announced that she will retire at the end of January 2009. Upon Feli’s retirement, Nancy Berryhill, currently the Denver Regional Commissioner, will serve as the Acting Assistant Deputy Commissioner. Martha Lambie, Deputy Regional Commissioner in Denver, then will serve as the Acting Regional Commissioner.

In the Office of the General Counsel, Kristi Schmidt has been appointed as the Regional Chief Counsel in Kansas City. Gwen Jones Kelley has been appointed as the Deputy Associate General Counsel for Program Law. Gwen will continue to serve as the Acting Associate General Counsel for Program Law.

Mary Chatel, currently the Senior Advisor for Program Outreach in the Office of Retirement and Disability Policy, will also begin an assignment with the Federal Executive Institute on December 1, 2008.

Lastly, on January 20, 2009, Tom Hughes, Chief Information Officer, and Mike Korbey, Senior Advisor to the Deputy Commissioner, will depart the agency.

Over the last 6 years, Tom has garnered the agency high scores in security, and he has been a catalyst in developing an IT vision for the 21st century. Greg Pace will serve as the Acting Chief Information Officer upon Tom’s departure.

In addition, during his tenure with the agency, Mike has been an effective advisor to the Deputy Commissioner. I would like to thank Tom and Mike for their contributions to the agency and for their commitment to public service.

Poll

Free Web poll for your Web site - freepolls.com

Schedule C Positions At Social Security

Does anyone have a list of the Schedule C positions at Social Security? These are policy-determining positions that are subject to change when a new administration takes office. Advance approval from the White House is required to appoint someone to a Schedule C position.

De Soto Out?

There is an anonymous report that Lisa de Soto, Social Security's Deputy Commissioner for the Office of Disability Adjudication and Review, is leaving her position to teach at the Federal Executive Institute. David Foster is to replace her. Her last day at Social Security is January 16, four days before Barack Obama's inauguration.

Update: Here is some confirmation that de Soto is out. Apparently, there were a number of other personnel changes as well. Here is some information on David Foster:

Mr. Foster has held high-level positions in the federal government, having served in various capacities at the White House, the Department of Health and Human Services in Washington, DC and the United States Attorney's Office in Alexandria, Virginia. In the private sector, Mr. Foster has worked extensively in the health care field as the head of government relations for biotechnology firms and as counsel for the National Leadership Coalition on Health Care. He also has chaired committees for the American Bar Association, the Federalist Society and the Biotechnology Industry Organization.

Mr. Foster is a magna cum laude graduate of Bowdoin College and received his J.D. from Northeastern University.

Federalist Society. That's reassuring!

Problem Solver Gets More Results! Potemkin Lives!

From television station WSPA in Spartanburg, SC:

When you wait years for the government to approve your disability insurance request there’s no doubt you need that money. One woman who called us said the Social Security Administration took months to send her more than $50,000 in back pay. Our Dianne Derby got the money for her in no time. It’s a 7 On Your Side Problem Solver. ...

She was approved for disability insurance earlier this year but can’t get the Social Security Administration to send her the more than $50,000 in back pay they granted. It’s money she needs after dipping into her retirement for 3 years while waiting for a final answer from the SSA.

“I called and they kept saying ‘Oh it just takes a while’,“ said Ogburn.

Our calls to SSA’s regional headquarters in Atlanta brought forth an apology to Ogburn from spokesperson Patti Patterson and an admission they should have moved faster. “We do try to pay people as quickly and timely as possible,“ said Patterson. “Unfortunately, on some occasions things don’t get processed as quickly as they should. This is an example of that.“

Within days Ms. Ogburn was more than $50,000 richer.

I think I will describe this sort of thing as a "Potemkin", in honor of Grigori Potemkin, a minister to Catherine the Great of Russia. Potemkin allegedly had hollow facades of buildings constructed along the route that the Empress was taking in a newly conquered area of the Crimea to impress her with the value of area.

CCD Recommendations For Transition

Here is an excerpt from Disability Policy Recommendations for Presidential Transition and 111th Congress, a lengthy document produced by the Consortium for Citizens with Disabilities (CCD), the major umbrella organization lobbying on behalf of the disabled in the United States:

The Consortium for Citizens with Disabilities urges the Administration and Congress to consider the following priorities:

• Ensure that SSA is given sufficient funding to make disability decisions in a timely manner and to carry out other critical workloads. SSA must be provided with adequate funds for its administrative expenses to make significant strides in reducing the disability claims backlog, improve other services to the public, and conduct its program integrity activities. Congress also should consider separation of SSA’s administrative budget authority from the Section 302(a) and (b) allocations for discretionary spending in other important programs. The budget would still be subject to the annual appropriations process and Congressional oversight.
• Develop proposals to promote employment among beneficiaries and potential beneficiaries and improve work incentives. However, any proposals should not make changes that would damage the existing Social Security and SSI disability programs. CCD has developed a set of principles to guide the development of proposals. The principles include: no changes to the Social Security definition of disability; no work requirements or time limits in the Social Security and SSI disability programs; and no cutbacks to eligibility criteria for these programs. The Statement also includes a comprehensive discussion of improvements to the disability programs and work incentives that CCD has supported over the years.
• Ensure that proposed changes to the disability claims process protect the rights and interests of people with disabilities and do not elevate speed of adjudication above accuracy of decisionmaking. This is problematic and not appropriate for a non-adversarial process. CCD has numerous suggestions for improving the disability claims process for people with disabilities and many have already been initiated by SSA. We believe that these recommendations and agency initiatives, which overall are not controversial and which we support, can go a long way towards reducing and eventually eliminating the disability claims backlog. The CCD recommendations, which include improved development of evidence at the beginning of the process and technological improvements, are summarized in testimony presented before the House Ways and Means Committee on April 23, 2008.
• Guarantee, if the debate on the solvency of the Social Security Trust Funds is revived, that the impact on people with disabilities is considered and that their interests are protected. CCD has urged that consideration of any proposal be required to include a beneficiary impact statement.
• Improve, simplify, and update the SSI program through legislative, regulatory, and operational changes.

Obama Plan For FY 2009 Appropriations

From the Capitol Insider put out by the Disability Policy Collaboration:

House and Senate leaders have charged the Appropriations Committees to complete action on the nine Fiscal Year Appropriations bills before the January 20 inauguration. President-Elect Obama wants to sign a stimulus package and the remaining FY 2009 Appropriations bills shortly after he takes office. Current appropriations are frozen at the FY 2009 levels under a continuing resolution that expires in early March.

Apfel At University of Maryland

I had earlier posted that former Social Security Commissioner Kenneth Apfel had just left the University of Texas to take a job with an insurance company. Later, I updated that to say that it appeared that the Kenneth Apfel at the insurance company is a different fellow with the same name. An article in the American Association for Retired Persons (AARP) Bulletin reports that the Apfel who used to be Commissioner is now at the University of Maryland.

8,100 Work Year Backlog And Other News

On Friday I attended a continuing legal education session put on by the North Carolina Association for Justice (formerly the NC Academy of Trial Lawyers) which included Ethel Zelenske from the National Organization of Social Security Claimants Representatives (NOSSCR) and several speakers from the Social Security Administration. Here are some news items I picked up.

Ethel Zelenske is the Director of NOSSCR's Government Affairs Office in Washington. She reported that Social Security entered the 2009 Fiscal Year (FY) on October 1, 2008 with an 8,100 man year (or in government terms Full Time Equivalent or FTE year) backlog of work apart from the Office of Disability Adjudication and Review. Note that I did not say man hour backlog, but man year backlog. (Update: This 8,100 man year backlog figure was used earlier by Senator Baucus as the size the workload backup may grow to in FY 2009.)

Zelenske reported that Michael Astrue appears to want to stay in his position as Commissioner of Social Security.

Zelenske brought with her some statistics from Social Security on average Administrative Law Judge (ALJ) dispositions per day per hearing office and average age of pending at each hearing office. You can view these on the separate Social Security Perspectives Blog. Please note that that the average age of pending number is potentially misleading.

Zelenske mentioned that Representative John Lewis of Georgia, an important member of the House Ways and Means Committee, has promised to introduce legislation to raise the cap on fees for representing Social Security claimants and to index that cap for inflation.

Reginald Jackson, Social Security's Acting Deputy Associate Commissioner for the Office of Disability Policy, talked about various policy issues, one of which is that Social Security is updating its medical listings for disability. I inquired about the status of the mental impairment listings. Social Security had obtained approval from the Office of Management and Budget (OMB) for new mental impairment listings in July but has not published the proposal in the Federal Register. Jackson's response was essentially, "Oh, you mean the 12.05 proposal? We were told that was on hold because of the transition to the new administration." Listing 12.05 is for mental retardation. It has become the most controversial of listings. I have no doubt that Michael Astrue intended to make it dramatically more difficult for mentally retarded people to qualify for disability benefits, but realized that he would never be able to get this past OMB as a final regulation in an Obama Administration.

Susan L. Brown, Social Security's eDIB Coordinator, told the group that Social Security hopes to roll out attorney and representative access to the electronic files over the internet nationally by this time next year. Interestingly, she mentioned that attorneys and representatives would be assigned an ID code for access to electronic files. Attorneys and representatives have objected to being required to use their own Social Security numbers as a unique identifier with Social Security, as is now the case. The concern is that this gives their own staff, Social Security staff and even their clients access to this confidential information. An ID number other than a Social Security number would be welcome news for people like me. I would be willing to bet that because they have ready access to my Social Security number several Social Security employees have already looked up my earnings record. They could get fired for it, but human nature being what it is, they have probably already done it.

Dorcas Hardy Remains Active

Former Social Security Commissioner Dorcas Hardy serves on two corporate boards and is President of Hardy and Associates, although it is unclear whether this remains an active business. She served as a surrogate for Republican Presidential candidate John McCain during the recent campaign. She is a member of the Social Security Advisory Board.

New York Times Editorial Mentions Social Security Backlogs

From today's New York Times editorial page:

As the sun sets on the Bush administration, the survival rite known as burrowing is under way. Burrowing is when favored political appointees are transformed into civil servants and granted instant tenure on the federal payroll. ...

Barack Obama the candidate smartly appealed to demoralized federal workers, writing campaign letters promising to reverse many of the Bush administration’s worst practices. ...

The promises extend to such trouble spots as staff shortages that have created a shameful backlog in Social Security disability claims ...

It’s encouraging that the president-elect recognizes that to make the changes he’s promising — and deliver a government that will protect and help its citizens — he will need energized, rather than alienated, federal workers. ...

There has been no sign so far of burrowing at Social Security that I know of. I have noticed a job opening at Social Security for the Assistant Deputy Commissioner for Disability Adjudication and Review, however. It will be interesting to see who gets that job.

Fee Payments

Below is a table showing the payments of fees to attorneys and others for representing Social Security claimants this year. These statistics are a useful analogue for how quickly or slowly Social Security is paying benefits to disabled claimants after a favorable decision. Notice the unevenness in the payments.

Fee Payments
Month/Year	Volume	Amount
Jan-08	20,559	$75,368,163.45
Feb-08	26,570	$95,228,284.32
Mar-08	23,088	$83,166,027.02
Apr-08	27,296	$98,616,579.78
May-08	29,305	$104,283,373.35
June-08	25,243	$89,786,459.83
July-08	22,238	$77,346,266.77
Aug-08	33,834	$120,819,791.05
Sept-08	25,239	$89,167,725.69
Oct-08	31,296	$111,938,127.61

No Free Parking For ALJ

From the Indianapolis Star:

The meter always read "expired." But the champagne-colored Toyota sedan never seemed to get a ticket.

A placard on the dashboard said simply "federal judge official business." No name. No authorizing signature. No date. No contact information. Nothing to suggest the car's owner had special permission not to feed the meter.

No tickets were ever issued, though, because until October there were so many different parking passes in circulation Downtown that meter enforcers could not verify whether the permit was legitimate.

It wasn't.

After a bit of digging, it turns out the car belongs to administrative law judge Reinhardt F. Korte, who is one of 13 administrative law judges assigned to Indianapolis by the Social Security Administration to hear disability cases.

SSA spokeswoman Carmen Moreno said neither Korte nor any of the other dozen administrative law judges were authorized to get free parking. They also aren't authorized to use a pass.

Korte, 63, said through Indianapolis attorney John Forbes that he acquired the permit from a now-retired judge, William Vaughn, sometime around 2006 and assumed it was OK to use. After The Star's inquiry, Korte called the Office of Inspector General to inquire himself, Forbes said, and stopped using the pass.

Attempts to reach Vaughn were unsuccessful.

"We hold our employees to a high standard of conduct,'' Moreno said, "and are disappointed with the actions of this individual."

Moreno said the agency was looking into Korte's actions. She said she couldn't discuss the results of any investigation because of privacy laws.

Chater Teaching In San Francisco

Former Commissioner of Social Security Shirley Chater is Visiting Professor at the Institute for Health and Aging at University of California, San Francisco, where she received a masters degree many years earlier.

"7 On Your Side" Gets Results

From television station WSPA in Greenville, SC (which must be 7 on the dial):

Since our story “Denied for Disability” aired earlier this month so many of you have asked for our help with your disability claim. Well we have good news for applicants who have waited more than 2 years for their hearing. In the last few weeks Greenville’s hearing office has made decisions on a record number of cases and nearly 1000 more have been moved to other offices to get processed faster. Dianne Derby has more in this follow up to a 7 On Your Side Problem Solver “Denied for Disability”. ...

[W]hen we talked to the SSA for a story that aired earlier this month they said they would be transferring cases to faster hearing offices. At the time they said Greenville was close to last place out of more than 140 hearing offices in the country taking more than 2 years on average to process cases.

Here’s the big news…since our story aired Greenville processed so many cases they jumped to second place. Plus they’ve moved nearly 1000 cases waiting more than 2 years to other hearing offices.

Apfel Now With Transatlantic Holdings

Kenneth Apfel, who was Commissioner of Social Security from 1997 to 2001, is now Executive Vice President and Chief Actuary of Transatlantic Holdings. Until recently, Apfel held the Sid Richardson Chair in Public Affairs at the Lyndon Johnson School of Public Affairs at the University of Texas. The University of Texas website still shows him there but he must have left since his UT e-mail account is no longer working. This change may also explain why Apfel is not on the Obama transition team for Social Security.

Update: The Ken Apfel at Transatlantic Holdings probably is not the Ken Apfel who was Commissioner of Social Security since the Ken Apfel at Transatlantic Holdings worked for AIG from 1981 to 2004. How many Ken Apfels are there in the world?

A Request For A Contractor -- Or For a Magican

The Social Security Administration has posted this request for information from possible contractors:

SSA is interested in developing a prototype of a fully automated system that would allow SSA electronic access to information contained in claimants’ personal health records [PHR] once SSA provides authorizations to release that information it receives from claimants. The PHR prototype would require prior authorization from claimant to release information to SSA electronically in Continuity of Care Format. This system would use the standards that the Health Information Technology Standards Panel (HITSP) approved for other purposes, and apply those standards to the process of obtaining data from the PHR. The prototype will also need to provide the technical process for electronically transmitting authorizations to release medical information between a PHR and third party entities, such as SSA, based on the approach demonstrated in the Nationwide Health Information Network effort and the medical evidence gathering and analysis prototype with Beth Israel Deaconess Medical Center in Boston, Massachusetts.

This will be workable by about 2020, I would guess.

Martin Gerry Working For Ticket To Work Contractor

Martin Gerry was former Commissioner Jo Anne Barnhart's right hand man at Social Security. Gerry tried to hang on after Barnhart left, but was abruptly fired by Barnhart's replacement, Michael Astrue, at about the same time Astrue decided to drop Disability Service Improvement, Barnart's and Gerry's ill-fated grand plan to rescue the Social Security disability programs. Gerry's firing included being marched out of the building by security guards.

From the Washington Times:

About 70 percent of the estimated 14 million Americans with severe disabilities are unemployed. Martin Gerry's job is to find ways to reduce this unemployment rate.

Mr. Gerry is executive managing director of a newly created institute within the national nonprofit agency NISH — Creating Employment for People with Severe Disabilities. A severe disability is classified as a physical or mental impairment that seriously limits one or more functional capacities. ...

Established in 1974, NISH provides job opportunities through federal contracts for people with severe disabilities.

The NISH Institute on Economic Empowerment will conduct research to see how job opportunities can be expanded and improved for people with severe disabilities. As director, Mr. Gerry will lead a team of six in establishing the institute and developing research priorities.

He said one of the main challenges of his job will be determining those priorities.

NISH is a major subcontractor in the Ticket to Work program, which aims to put Social Security disability recipients back to work, but which is mostly wasting money.

Robert Nickerson Added To Obama Transition Team For Social Security

President-elect Barack Obama's transition website now lists Robert Nickerson as part of the transition team for Social Security. Nickerson was a Special Assistant to the Commissioner of Social Security in 1996 and a Confidential Assistant to the Commissioner (what a title!) in 2000. I can find no sign of what he has been up to since 2000.

Barnhart Now Teaching At Harvard

I am starting a "where are they now?" series on former high Social Security officials. I am not suggesting any of these folks for new jobs at Social Security.

Jo Anne Barnhart, who was Commissioner of Social Security from 2001 to 2007, is now an Adjunct Lecturer in Public Policy at the John F. Kennedy School of Government at Harvard. She has an office and a Harvard e-mail address, so this must not be just an occasional thing.

NCSSMA Meets With DCO And Commissioner

The Annual Meeting of the National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel, included some high level meetings. Here are some excerpts from the minutes of a meeting with Linda McMahon, Social Security's Deputy Commissioner, Operations (DCO) in late October:

Although there were very high hopes that we would get $50 million above the President’s budget, Linda believes we will be extremely lucky to get the President’s budget, and we could be in a yearlong Continuing Resolution (CR). [It sounds like she had trouble believing that Barack Obama would be elected President. Notice below that Commissioner Astrue was quite a bit more optimistic.] Any new President will walk into a budget deficit, but the Agency will continue to make its case. Overtime has already been allocated for the first quarter of this fiscal year, split evenly between FOs [Field Offices] and the PCs [Program Centers].

Linda reiterated that during the CR, Operations would only be allowed to hire 1 individual for every 3 losses. They are waiting until December to see where losses occur. The first priority is the 800 number. There will be limited field hires for critical situations. We were able to do some advance hiring for 2009 in 2008.

The Commissioner ... is interested in providing resources to ODAR [Office of Disability Adjudication and Review] who in the past received less attention in terms of hiring, systems, etc. Congress is focused on the challenges faced by ODAR and is sensitive to decreasing the backlogs. If the problems ODAR faces are not fixed, then credibility for the entire Agency is lost. Another challenge is a shifting of workloads as hearings are moved from ODAR to Operations to effectuate them.

Commissioner Astrue also met with the group. Here are some excerpts from that meeting:

In FY 2008, due to attrition and experienced ALJs being used to train the new judges, the Agency actually had about 46 fewer Administrative Law Judges (ALJs). The best ALJs were taken offline to help not only with training the new ALJs but also with the hiring process. ...

Despite all the distractions of hiring and training, we were able to improve productivity because of the commitment of employees. We have locked ourselves into ODAR facility decisions that were more suitable years ago. There are parts of the country that have lighter workloads and parts that are heavier. In particular, in the Atlanta and Chicago regions, the number of facilities is less than adequate.

Under the Continuing Resolution, there is a 1 for 3 replacement hiring rate in the field offices, and 1 for 2 in the DDSs because turnover rates are higher and salaries are lower. The replacement hiring rate in ODAR will be 1 for 1. The new Agency Strategic Plan sets some extremely tough goals for them. ODAR gets the lion’s share of the credit for reducing disability workloads. ...

He feels there is a reasonable chance of exceeding the President’s budget in FY 2009. In the past when Congress has not fully funded the Agency, performance has deteriorated. ...

The Commissioner indicated it took him 11 months to realize there was no focal point to improve notices, to ensure they were up to date, and to prevent them from adding to the workload burdens. He looked at some ODAR notices which were terrible, so he personally made recommendations for rewriting these.

Newspaper Article Helps Another Claimant

The Milwaukee Journal-Sentinel is reporting that David Hintz, whose case was featured in a story in August on Social Security backlogs, has been approved for Social Security disability benefits. He had a hearing scheduled within a month after the article in the paper.

Hearing On Compassionate Allowances For Brain Damage

Commissioner Astrue held a public hearing today on his compassionate allowance scheme. This hearing concerned traumatic brain injuries and strokes and featured speakers from the Department of Defense and the National Institutes of Health.

Traditionally, Social Security has been anything but compassionate or quick in making disability determinations in brain damage cases. Social Security's standard practice is to delay decisions in these cases for months and months in hope of improvement and then to be oblivious to anything other than the most obvious effects of brain damage. Frontal lobe damage, which has its effects primarily upon personality, is completely ignored in most cases. State of the art neuropsychological testing is treated as unimportant.

Peter Orszag To Head OMB

Alexis Simendinger at the National Journal's Lost in Transition Blog is reporting that President-elect Obama has chosen Peter Orszag to be his Director of the Office of Management and Budget (OMB). OMB has considerable power over the Social Security Administration, and not just through its power over the budget. No regulations get published the Federal Register without OMB approval. Orszag was once an economic adviser in the Clinton White House and has more recently been the director of the Congressional Budget Office.

Orszag co-authored a book calling for raising the retirement age for Social Security benefits, increasing the Social Security wagebase and reducing Social Security benefits for high wage earners.

Federal Court Vacancies

There are 12 vacancies on the Courts of Appeals and 25 at the District Court level. There are four vacancies on the 15 member Fourth Circuit Court of Appeals alone. One of the vacancies on the Fourth Circuit dates back to 1994! There will be many more vacancies over the next four years. Politics aside, the federal courts need more judges right now.

Barack Obama's appointments to the federal bench will have a significant impact, with Social Security being one of the ways they will have an impact. Their impact may be particularly important when it comes to class actions.

Something Fishy About These Numbers

Click on each of the thumbnails to see a November 5, 2008 report that the National Organization of Social Security Claimants Representatives (NOSSCR) obtained from the Social Security Administration on backlogs of claimants awaiting hearings on their Social Security disability claims at each of the hearing offices, each of Social Security's regions and nationally.

Compare the state of the national backlog over time:

• January 25, 2007 -- 508 days
• May 25, 2007 -- 523 days
• July 28, 2007 -- 528 days
• August 31, 2007 -- 523 days
• November 30, 2007 -- 500 days
• February 29, 2008 -- 511 days
• May 30, 2008 -- 523 days
• June 27, 2008 -- 529 days
• July 31, 2008 -- 530 days
  
• September 3, 2008 -- 532 days
• November 5, 2008 -- 476
  

Does this improvement seem too good to be true? How could there be a 56 day reduction over the course of just 63 days? Is it possible that there has been some fiddling with the method by which these numbers are generated? Just looking at the numbers for the office I am most familiar with, Raleigh, I see a reduction in processing time from 509 days to 497 days yet there has been no surge in productivity locally that I have noticed. If anything, my impression is that things continue to slowly get worse here. I hope this report is true, but this needs an explanation.

Integrated Disability Process

Take a look at this letter from the National Association of Disability Examiners (NADE), an organization of personnel who work at state Disability Determination Services (DDS) agencies and make initial and reconsideration determinations on disability claims. The letter was sent to Ruby Burrell at Social Security central offices. It concerns a proposal called the "Integrated Disability Process." I do not think that I have heard of this "Integrated Disability Process" previously. This may be a significant plan, but it is hard to tell exactly what is in the works, since we can only read a response to the plan, rather than the plan itself. It is also hard to tell how far along they are on this.

Here are a few excerpts to give you an idea of what may be afoot -- and note that it gets more interesting as you go along:

We advise that caution be used when placing weight on the TPs [Treating Physicians] MSS [Medical Source Statements], as these can sometimes be overly restrictive and in some instances fraudulent. Increased program costs will be the result of incorrect decisions driven by these types of MSSs. Some States have commented that, in many cases, TP MSSs appear to be exaggerated because many TPs want their claimant’s to receive benefits or they do not want their patients to believe that it was the TPs report that kept them from receiving benefits. ...

We support a standardized form for the MSS. This form should include in its format adequate space for individual comments/input as well as a statement that the source himself feels that the MSS he is providing is consistent with his medical findings. ...

The requirement of obtaining a MSS at the reconsideration level seems to be based solely on the ALJs’ ‘discomfort’ in making a decision without a MSS in file. This is based not on fact but rather a belief amongst ALJs that having an MSS makes their decision legally defensible. This change will inevitably result in an increase in processing time, as fruitless efforts to obtain an MSS from uncooperative providers are pursued. ...

Slide #25-27: there may be a benefit in rewriting SSR 96-2p and eliminating the ‘controlling weight’ provision. There is no similar concept in other governmental or private agencies. Removing the concept of a controlling opinion would allow for more equity in the consideration of other opinions. ...

There is some support for the concept of DDSs conducting selected face-to-face interviews by highly trained DDS staff before the case goes to ODAR. This could provide some cost benefit savings for many cases involved in the more costly appeals process at the ODAR level. We would welcome additional discussion on this proposal.

By the way, NADE, what a way to feed into the stereotypes that others have about DDS personnel! Really, I did not think you would be that concerned about a few more claimants being approved.

NADE Newsletter

The National Association of Disability Examiners (NADE), an organization of the personnel who make initial and reconsideration determinations on Social Security disability claims, has issued its Fall 2008 newsletter, complete with a summary of a speech that Commissioner Astrue made at a NADE Conference.

A Few Thoughts About Dr. Susan Daniels

Dr. Susan Daniels, who worked at the Social Security Administration during the Clinton Administration, has been appointed by the Obama transition to be a lead in their planning team for the Social Security Administration.

I have already noted that the disastrous Re-engineering and Hearing Process Improvement initiatives happened on Dr. Daniels' watch at Social Security, but those were not the only bad things that happened then. Two of the most viciously anti-claimant regulatory changes ever made at Social Security also happened then. The obesity listings were eliminated and the examples that had been in section 201.00(h) of the grid regulations were eliminated. You think this sounds technical and unimportant? Trust me, there are tens of thousands of people who never got Social Security disability benefits because of those changes. There was never any justification for either. Neither has been forgotten. Both still rankle. I remain astonished that these changes happened while a Democrat was in the White House.

I do not want to go on and on about a person whose role is likely to be over in about two months, but just try to find one example of Dr. Daniels speaking out about the enormous backlogs that have developed at the Social Security Administration. Where was she when she might have done some good?

Dr. Daniels is no well-respected elder statesperson. She should not have gotten this appointment. Any nomination of Dr. Daniels to serve in any official capacity at Social Security would be controversial. She does not even have any business on the Social Security Advisory Board and I think the SSAB is so worthless that it ought to be abolished.

Obama Transition Names Agency Review Team Leads For Social Security

President-elect Obama's transition office has announced the "team leads" for the Social Security Administration Review Team. It is not clear from the announcement whether this is the entire team. My guess is that there will be more. Here are the people announced today:

Dr. Susan Daniels is currently self employed, with the firm Daniels and Associates. From 1988 to 1991 Daniels served as Associate Commissioner in the Rehabilitation Services Administration in the U.S. Department of Education. From 1991 to 1994 she was Associate Commissioner of the Administration on Developmental Disabilities in the U.S. Department of Health & Human Services. Daniels served as Deputy Commissioner for Disability and Income Security Programs at the Social Security Administration from 1994-2000, where she helped pass The Ticket to Work and Work Incentive Improvement Act.

Jim Roosevelt is president and chief executive officer for the Tufts Health Plan and formerly served as senior vice president and general counsel. Before joining Tufts Health Plan, Mr. Roosevelt was the associate commissioner for Retirement Policy for the Social Security Administration in Washington, D.C. He has also served as chief legal counsel for the Massachusetts Democratic Party and is co-chair of the Rules and By-laws Committee of the Democratic National Committee. Mr. Roosevelt spent 10 years as partner at Choate, Hall and Stewart in Boston. He is past chairman of the board of trustees for the Massachusetts Hospital Association, past president of the American Health Lawyers Association and past chairman of the board of trustees for Mount Auburn Hospital. Currently, Mr. Roosevelt serves as chairman of the board of directors for Massachusetts Association of Health Plans, and as a member of the board of directors at America's Health Insurance Plans, Emmanuel College and the Kenneth B. Schwartz Center. He is also co-chair of the board of directors for the Tufts Health Care Institute.

Addendum: Can someone refresh my recollection? To what extent was Dr. Susan Daniel involved with the Re-engineering and Hearing Process Improvement debacles? There were plenty of extenuating circumstances, but the Clinton Administration is hardly remembered as a golden age for the Social Security Administration. The fact that Dr. Daniel lists the failed Ticket to Work program as if it were a shining achievement is hardly reassuring.

The Audacity Of Hope

In 1981 the Social Security Subcommittee in the House of Representatives published a staff report with the title "Social Security Hearings and Appeals: Pending Problems and Proposed Solutions." This is not available online. The report began "The backlog of social security administrative law judge hearings is rapidly reaching crisis proportions."

Click on the attached page from that report showing the situation at that point and compare it to the current situation. If the situation in 1981 was a near crisis, how should the current situation be described?

The current Commissioner of Social Security tells us things are getting better because they are getting worse at a slower rate than they used to. His goal is to slowly, slowly work towards a situation in which it would take about a year to get a hearing. before an Administrative Law Judge. He believes that this would constitute normality, even though he was working at Social Security at the time this report was produced in 1981. I do not think many people believe that the Commissioner even has a plan to reduce the backlog at all, but his plan, even taken at face value, would take us to a place that would be much worse than what seemed intolerable in 1981.

The late Senator Daniel Patrick Moynihan coined the phrase "defining deviancy down" to describe permissiveness in criminal justice. Commissioner Astrue is trying to define adequate service down at Social Security in a dramatic manner.

Barack Obama titled his second book, The Audacity Of Hope. I think we should take this title seriously. We should aspire to levels of service at the Social Security Administration comparable to what they were before Ronald Reagan was elected President. Anything less seems to me lacking in both audacity and hope.

We have a political situation that has not been present since at least 1964 -- a Democrat elected President with a strong mandate and a heavily Democratic Congress. Don't tell me that we cannot aspire to really do something about the mess at Social Security.

What Would You Say To The Transition Team?

A team from the Obama transition will be visiting the Social Security Administration soon to talk with the Commissioner and other high level officials. If you had a chance to talk with the Obama transition team, what would you say?

Personnel Announcement For Transition

The Obama Transition Team has started to announce some of the people who will be doing agency reviews. Tom Perez will be heading up the agency reviews for Justice, Health and Human services, Veterans Affairs, and Housing and Urban Development, the group that seems most likely to include Social Security. Here is a little information about Perez:

He is Secretary of the Maryland Department of Labor, Licensing and Regulation under Governor Martin O’Malley. He worked in a variety of civil rights positions at the Department of Justice, including Deputy Assistant Attorney General for Civil Rights under Attorney General Janet Reno. He also served as Director of the Office for Civil Rights at the U.S. Department of Health and Human Services under Secretary Donna Shalala, and as Special Counsel to Senator Edward Kennedy. From 2001 until 2007, he was Assistant Professor of Law at the University of Maryland School of Law, and is an adjunct faculty member at the George Washington School of Public Health.

No word yet on who will be on the "parachute team" that will be landing on Social Security in the near future.

Class Actions

After Republicans took control of Congress in 1994, they quickly passed the Legal Aid Act of 1995, which banned federally funded legal aid organizations from bringing class actions. My recollection is that the Republicans threatened to cut off all funding for legal aid in order to get President Clinton to sign the bill. This had the unfortunate effect of almost completely ending class actions against the Social Security Administration. In the 1980s and 1990s class actions had a major beneficial effect upon Social Security.

There was an op ed piece in the New York Times back in April calling for an end to the ban on federally funded legal aid organizations bringing class actions. There was a piece in The Nation in January calling for the same thing. I do not think that the friends of legal aid have forgotten about this issue or regard it as closed. I hope that this will get a hearing in the new Congress.

Veterans Day

Federal Register Items

Social Security has adopted new rules that say that "any [representative] payee who previously satisfied the payee investigation criteria, including a face-to-face interview, and currently serves as a payee generally need not appear for another face-to-face interview when subsequently applying to become a payee unless we determine within our discretion, that a new faceto- face interview is necessary."

The proposed rules that I have discussed here and here that would take away the right of an Administrative Law Judge (ALJ) to schedule his or her hearings and let the Social Security Administration do the scheduling are the the Federal Register today. This may sound technical, but it is a big deal.

Finally, Commissioner Astrue has scheduled a public hearing for November 18 in Fort Myer, VA on his Compassionate Allowance plan and it is clear that he is planning to hold the hearing himself. In and of itself, the public hearing, like the Compassionate Allowance plan itself, is trivial but scheduling this is an indication that Michael Astrue is not leaving his position as Commissioner in the immediate future.

An Allegory On The Plan For Higher ALJ Productivity

In case you missed it, take a look at what I am referring to.

Automation Updates

The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel, has posted a summary of a recent meeting their board had with officials from Social Security's Office of Automation Support (OAS). This gives a good deal of information about the current status of information technology updates at Social Security.

Byrd Stepping Down As Chair Of Senate Appropriations Committee

Senator Byrd is stepping down as chairman of the Senate Appropriations Committee to be replaced by Senator Inouye, according to Reuters. Senator Byrd's health has been declining.

Comments On Proposed Representation Regulations From Organizations

Here are links to comments filed on the proposed regulations on representation of claimants coming from important organizations:

• National Association of Disability Representatives (NADR)
• National Organization of Social Security Claimants Representatives (NOSSCR)
• Consortium for Citizens with Disabilities -- Social Security Task Force

Today is the deadline for filing comments. You can post your comments online.

Proposed Rules On Scheduling Hearings Coming Out Monday

The Social Security Administration is having a set of proposed regulations entitled "Setting the Time and Place for a Hearing before an Administrative Law Judge" published in the Federal Register on Monday. Here is Social Security's summary:

We propose to amend our rules to clarify that the agency is responsible for setting the time and place for a hearing before an administrative law judge (ALJ). Consistent with our regulations at lower levels of the administrative process, we propose to use “we” or “us” in the rules setting the time and place for a hearing. These changes will ensure greater flexibility in scheduling hearings both in person and via video teleconferencing and will aid us in our effort to increase efficiency in the hearing process and reduce the number of pending hearings. The number of cases awaiting a hearing has reached historic proportions, and efforts toward greater efficiency are critical to addressing this problem.

The notice says "We expect that we will need to exercise this authority in only those situations where an ALJ is not scheduling the number of hearings that we consider sufficient." However, this limitation is not an enforceable promise. The apparent intent here is to centralize the scheduling of hearings, at least for some ALJs, giving those ALJs no control over their docket. Each ALJ involved will get their hearing schedule for a month and they will jolly well hear those cases or else. As the notice puts it "... through this proposed rule, we could ensure that those ALJs who do not process a sufficient number of cases have enough of them docketed for hearings to drive down and eliminate the backlog by 2013."

Incidentally, the proposal estimates huge costs for going ahead with this -- as claimants have their hearings quicker and get on benefits quicker.

In my opinion, the idea that this is the solution for Social Security's backlog problem is absurd. The problem is lack of personnel. ALJs are already hearing too many cases. The quality has already been badly affected. Trying to go ahead with this is just going to cause quality to decline even further and create a huge number of practical problems.

Restrictions On Sending Evidence To CE Doctors

When a Social Security Administrative Law Judge (ALJ) sends a claimant out for a medical examination at Social Security's expense, called a Consultative Examination (CE), typically the ALJ sends some part of the claimant's medical records along as background information. I have heard from a well placed source that ALJs across the country have recently been told informally that they are limited to a certain number of pages of medical records they can send to the CE physician. Some have been told that they are limited to ten or twenty pages. This is problematic since ten or twenty pages may not be nearly enough to give the CE physician enough background on the claimant.

Comments On Proposed Representation Regulations

Here are links to some of the longer comments filed on the proposed regulations on representation of claimants:

• Max Rae
• James Allsup (I'm not sure about his claim that Allsup is the largest non-attorney entity representing Social Security claimants. That title may belong to Binder and Binder.)
• Cynthia Berger
• Sheryl Mazur
• Mike McNulty, Chairman, House Social Security Subcommittee Very interesting!
• Disability Group, Inc.

Today is the deadline for filing comments. You can post your comments online.

Waiting In South Carolina

From WSPA in Greenville-Spartanburg, SC:

It’s a monstrous problem, one we hear about dozens of times each day here at News Channel 7. Viewers in our area filing for Social Security Disability insurance benefits and waiting years for answers. ...

“My life has changed dramatically since that one fateful day back in January of ‘06,” said Penny Knight.

That’s when Knight says she lost consciousness from a violent seizure.

“I know that my body is contorting and something is happening,” she said.

She says it’s all due a head injury she got during a car wreck more than 20 years ago. Knight says she used to stock shelves 6 days a week and was on her feet 10-12 hours each day. She says she can’t do that anymore because the of seizures and depression. In 2006, she applied for disability benefits with the Social Security Administration and was denied. She appealed and has been waiting two-and-a-half years for a hearing in front of a judge.

“It is a waiting game and a paper pushing game,” said Knight.

When 7 On Your Side got involved Knight got a hearing within weeks and a final answer a week later.

Amazing how quickly things happened for Ms. Knight after. a television reporter called Social Security just before an election. Now, if a few hundred thousand other people could just get the same treatment, things would be great!

Trouble Brewing In California

California Governor Arnold Schwarzenegger has announced that all California state employees will be furloughed for one day each month for the next year and a half. Note that I said "all" California state employees. (See the attached letter. Click on each page to see it full sized.) This includes the California Disability Determination Services (DDS) unit that makes decisions at the initial and reconsideration levels for Social Security disability claims, even though the California DDS is funded by the Social Security Administration. This could make backlogs much worse in California. It is an enormous headache for Social Security.

California is not the only state with severe budget problems. My state, North Carolina, has a huge shortfall and a state constitution that requires a balanced budget. California may not be the only state to use generalized partial furloughs of state employees.

Obama Wants Bigger Budget And More Employees For Social Security

From Joe Davidson's Federal Diary column at the Washington Post:

"The only thing the unions are looking for Obama to do is be fair," said John Gage, president of the American Federation of Government Employees. "We understand that he's not going to be in lock step with our positions on everything."...

Gage released a series of letters from Obama that outline his positions on various federal labor related issues. The letters, Gage said, can serve as "a baseline for accountability with the new administration."...

Social Security Administration: Obama said there was a critical need to increase funding for the agency because its staffing has fallen as its beneficiary population has increased.

Gage may have released the letters to the Washington Post, but I cannot find them on the AFGE website.

Update: The letter from President-elect Obama is available through Federal Times. Here is the text:

October 20, 2008

John Gage
National President
American Federation of Government Employees, AFL-CIO
80 F Street, NW
Washington, DC 20001

Dear President Gage,

I am writing to respond to the concerns you raised with my staff regarding the challenges facing the Social Security Administration (SSA), and the issue of Social Security privatization.

First, I strongly agree with you that there is a critical need to increase funding for the SSA administrative expenses account to address the serious challenges facing the agency. Due to prolonged underfunding, SSA has reduced staffing levels even as its workload has increased. SSA agency staffing will soon reach its lowest level since 1972 even though SSA's beneficiary population has nearly doubled since that time.

An unfortunate result of underfunding is an unprecedented backlog in SSA disability claims. As of August 2008, about 767,000 people were awaiting a hearing before an Administrative Law Judge on their Social Security disability claims, compared to about 312,000 cases pending in October 2000. There has also been an increase in Field Office waiting times.

Second, I want assure you that I will continue to strongly oppose Social Security privatization. As you know, I have spoken out many times against President Bush's Social Security privatization plan, including a major speech in the midst of the 2005 privatization debate at the National Press Club. I also voted in 2005, 2006 and 2007 against amendments supported by Senator McCain and other Republicans that aimed to privatize Social Security.

Thank you, John, for everything you and your members do for America.

Sincerely,

Barack Obama

Tomorrow Is Deadline For Comments On Proposed Representation Rules

The deadline for posting comments on the proposed new rules on representing claimants before the Social Security Administration is this Friday.

You can post your comments online.

A Perfect Record

From a press release:

In the spirit [state?] of Michigan where the personal injury Law Office of Mayer B. Gordon represents Social Security Disability Claimants, slightly over 50% of Claimants were granted Social Security disability benefits in the year 2007. This is in sharp contrast to Mayer B. Gordon's amazing recovery rate of 100% for his Social Security Disability Clients. ...

The Law Office of Mayer B. Gordon found a solution for their clients. A whopping 77% of Claimants never have to appear for Social Security Disability Hearings. For this fortunate group of 77% the waiting time is slashed significantly. When asked how he achieves these outstanding results on behalf of his clients, Mr. Gordon stated: "I created the culture, but I can't fully take the credit. I have the hardest working, most knowledgeable and dedicated staff in the country." Kathy Sterbling, my paralegal with 30 years of experience, spearheads our team. They treat each and every client with courtesy and respect. This is the way they would like to be treated. We handle Social Security Disability cases with the same care that we put into multi- million dollar medical malpractice, birth injury, auto injury or any other personal injury cases that we have handled over the past 30 years". Mr. Gordon went on to explain that his staff went to great lengths to collect, develop and correlate medical data on each client which they submit to the Social Security Hearings office in brief form, well in advance of the hearing date. This requires dedication to the clients they serve and old fashioned hard work.

Some years ago a woman called me. She said that she had a Social Security disability claim and was looking for representation. She had a question for me. Her question was whether I had ever lost a Social Security disability case. I told her I had. She said that she wanted to hire me. She gave as her reason the fact that she had talked with another attorney and he had boasted to her that he had never lost a Social Security disability case. She said she knew that he could not have represented many Social Security disability claimants. She decided that she had better look for someone with more experience.

Comments On Representation Rules -- Two Days To Go

The deadline for posting comments on the proposed new rules on representing claimants before the Social Security Administration is this Friday.

Thus far, there have been few comments. Here are links to a few worthy on notice:

• Chamberline, Edmunds law firm
• Barkan Neff law firm
• Utah Association for Justice

You can post your comments online.

Social Security Wants To Plan Massive Database Makeover

I cannot begin to understand all of this, but it appears that Social Security is seeking a vendor to do a study on how the agency can reorganize its massive system of databases. I would imagine the study contract alone would be a big one and the contract to do the actual work would be humongous. Can anyone with more knowledge help me out here?

Open Forum: What Do The Election Results Mean For Social Security

At this writing, it is certainly looking as if Barack Obama will be the next President of the United States and that Democrats will have larger margins in the Senate and House of Representatives.

What do you think this means for Social Security? Share your views, opinions and guesses by commenting on this post.

Vote!

OMB Clears Proposed Rules On Setting Time And Place For ALJ Hearings

The Office of Management and Budget (OMB) has just cleared proposed regulations concerning setting the time and place for hearings before Administrative Law Judges (ALJs). Here is the brief summary given by OMB:

The amendments include provisions clarifying that claims denied by state Disability Determination Services and other adjudicators for “failure to cooperate” are technical denials rather than medical determinations, and providing flexibility in setting the time and place of hearings. We also intend to propose new regulatory provisions that will allow ALJs to dismiss a request for a hearing where a claimant has abandoned his or her claim and to specify regulatory standards that require ALJs to clearly articulate their rationale when issuing decisions on remanded claims.

Revised Rules On Overpayments

Social Security has published a final rule in the Federal Register. Here is Social Security's summary:

These rules amend our title II regulations to explicitly provide that we apply an underpayment due an individual to reduce an overpayment to that individual in certain cases. Our title XVI regulations already state this policy. Additionally, these rules reflect our procedures for collecting overpayments when a payment of more than the correct amount is made to a representative payee on behalf of a beneficiary after the beneficiary's death. These rules clarify that we collect overpayments in this situation from only the representative payee or his estate but not from the representative payee's spouse or from the spouse's estate.

Complaints About Dover Hearing Office

Wayne Gilchrest, who represents Delaware in the House of Representatives, has been complaining about service at Social Security's hearing office in Dover, specifically: requests for excessive and redundant medical evidence, unwarranted dismissals, improper handling of terminal illness, medically critical, and dire need claims and inappropriate comments at hearings.

Social Security's Office of Inspector General (OIG) was asked to investigate. OIG's report has been posted. They really did not investigate the Dover hearing office, instead concentrating upon Social Security's handling of the Congressman's complaints and agreed that the agency could handle the complaints better.

I am not familiar with the situation in Dover. I do know that the Social Security Administration has difficulty handling rogue (to use a term in the news) Administrative Law Judges (ALJs). They want to insure good public service but they do not want to interfere with ALJ independence.

SSI Stats Released

Social Security's Office of Policy has released its monthly compilation of statistics concerning the Supplemental Security Income (SSI) program.

There were 7,355,596 recipients of SSI in September 2007. This had risen to 7,509,397 in September 2008, an increase of 2.1% in a year. The number of recipients on account of age actually dropped over this time period, while the number of disability benefit recipients increased by 2.4%, undoubtedly due to the aging of the baby boomer generation.

Cert Petition Denied In Manning

The Supreme Court has denied the petition for a writ of certiorari in Manning v. Astrue, having to do with the issue of whether attorney’s fees awarded under the Equal Access to Justice Act must be paid to the plaintiff directly, where it may be attached by the government for outstanding debts, or to the plaintiff’s attorney. This means that the Supreme Court will not hear the case.

NOSSCR Meeting With SSA Concerning Proposed Representation Regulations

Social Security has posted the following summary concerning a recent meeting about the proposed new regulations on representation of claimants:

Meeting Notes: Revisions to Rules on Representation of Parties NPRM

Location: Social Security Administration
6401 Security Boulevard
Woodlawn, Maryland 21235

Date: October 28, 2008, 3:00-4:30 PM

Participants from Social Security Administration (SSA): JoEllen Felice, Nancy Webb, Everett Jackson, Marg Handel, Zeenat Kolia, Vivi Maddox, Paul Kryglik, Amy Rigney, Joann Anderson, Diana Andrews, and Joshua Silverman

Participants from National Organization of Social Security Claimant Representatives (NOSSCR): Nancy Shor, Ethel Zelenske, Cynthia Berger, John Heard, and Marcia Margolis

Summary:

SSA presented an overview of the NPRM as described in the preamble

Access Registration

NOSSCR asked whether every employee in an entity would need to complete access registration. SSA responded that only an entity’s employees that want to access the electronic folder and employees that perform representational services would need to complete access registration. These would likely included attorneys and paralegals. SSA will consider revising the language in proposed §§404.1713(b) and 416.1513(b) to clarify this policy. NOSSCR requested clarification in other regulatory sections mentioning access registration.

Mandating Electronic Services

NOSSCR said they were excited and supportive of online access, and they appreciated the need for strict authentication procedures.

Use of Form SSA-1696 for Revocation of Representative

NOSSCR said that claimants should not need to file this specific form to revoke the appointment of a representative; rather, claimants should still be allowed to submit any writing revoking the appointment of a representative. They said that SSA should make it easy for a claimant to revoke the appointment of a representative.

Principal Representative Filing an Application for Benefits for a Claimant

NOSSCR supported SSA’s intention to allow applications to be filed online, but they asked SSA to clarify: 1) what protections claimants had from fraud if their principal representatives filed an application online for them, and 2) what protections did a claimant have to monitor a representative’s follow-up action through the appeals process. SSA answered that: 1) a representative will need to certify to the accuracy of the information in the application, 2) the representative will attest that he reviewed the application before filing it with SSA, and 3) SSA will send a copy of the application to the claimant and ask the claimant to review it for accuracy. Unlike the current electronic filing of an application in which SSA proactively contacts a claimant to verify the accuracy of the information, SSA will assume that an application is correct unless a claimant says otherwise. Click-and-sign will have a passive acknowledgement system when no third-party is involved in the filing of an application. Currently SSA asks whether third-parties assist in the completion of online applications.

NOSSCR asked whether SSA intended a different procedure for represented and unrepresented claims. SSA answered that there is no difference in the online application for represented or unrepresented claimants.

NOSSCR asked whether SSA will give information to claimants about fees when a third-party helps a claimant complete an application. NOSSCR was concerned that applicants may not know that they could file claims on their own for free. SSA said that they would consider this.

NOSSCR expressed concern that less-educated or those without English language fluency might not understand the significance of failing to contact SSA if they notice a mistake in an application filed by a representative.

Notices to Claimants

NOSSCR expressed concern that claimants would not received notices under proposed §§404.1715(b) and 416.1515(b). SSA said that claimants would receive notices, and that SSA would consider revising the regulatory language.

Professional Representatives

NOSSCR asked whether a claimant could file his own appeal if he is represented by a professional representative. SSA answered that a claimant could file. NOSSCR requested that this be made clearer in the final rules.

Paper Copies of Applications

NOSSCR asked whether a representative could print a paper copy of the electronic application before it is submitted to SSA. SSA said they would consider this suggestion.

Requiring Professional Representatives to Use Electronic Media

NOSSCR expressed reservations about requiring professional representatives to use electronic media. NOSSCR offered several examples of situations in which computer errors or unforeseen circumstances could affect the ability of a representative to file on time. NOSSCR noted that while the Federal court system contains the ability to have an affidavit in such circumstances, SSA did not propose any such ability. NOSSCR expressed concern that the proposed rules would create a new category of litigation about why a representative could not file timely, particularly because failure to use electronic services is a sanctionable action. NOSSCR suggested making the electronic services aspirational rather than mandatory or including provisions for waivers in certain instances.

NOSSCR also said that the NPRM’s use of “medical factors” in several proposed regulatory sections was inaccurate because initial disability claims involve more issues than that. NOSSCR expressed concern that the proposed rules would create separate procedures for medical and non-medical appeals.

Rules of Conduct

NOSSCR felt that some of the proposed language was vague. As an example, NOSSCR asked whether “assisting” in proposed §§404.1740(c)(12) and 416.1540(c)(12) included the situation when a disqualified a representative transfers his client files to another representative in good standing. NOSSCR suggested adding the word “knowingly” in those proposed sections. NOSSCR also asked whether disbarred attorneys were to be included in proposed §§404.1740(c)(12) and 416.1740(c)(12).

End of Appointment of a Representative

NOSSCR asked whether proposed §§404.1712(c)(7-8) and 416.1512(c)(7-8) meant to end the appointment of an entity representative if shareholder changes occur. NOSSCR also asked why representation should end if an entity reorganizes but there is continuity to for a claimant.

Fee Petitions

NOSSCR asked whether the proposed §§404.1720-.1732 and 416.1520-.1532 meant to only apply to fee petitions or also to fee agreements. SSA replied that the proposed rules only apply to fee petitions where mentioned in the text. NOSSCR asked whether these changes are significant changes to current business practice. SSA responded that these textual changes are not a significant change from the current business practice.

Representational Services

NOSSCR asked what is meant by the undefined phrase “representational services.” SSA replied that they will consider placing examples of representational services in subregulatory instructions. NOSSCR replied that the definition should appear in the regulatory text. SSA responded that it might be difficult to say every example in the text, but that SSA means to include actions like: appearing at a hearing, giving legal guidance, signing legal arguments, and signing an application. SSA might not consider collecting evidence or interacting with the electronic records folder to be representational services.

Filing Fee Petition

NOSSCR asked for clarification about the use of “electronic media we prescribe or at one of our offices” in proposed §§404.1725(a) and 416.1525(a). SSA responded that they intend to develop new electronic services and will publish a notice in the Federal Register when representatives must use the electronic services. Until a service is available, SSA may consider allowing a paper business process.

End of Appointment of a Representative

NOSSCR asked whether the “final determination or decision” in proposed §§404.1712(b)(3) and 416.1512(b)(3) means the receipt of an award notice. NOSSCR asked whether a representative would need to submit a new Form SSA-1696 if an award notice contained a computation error. SSA responded that a new Form SSA-1696 would probably be needed. NOSSCR responded that the proposed process is inefficient to fix a payment amount because there are issues that commonly arise with Supplemental Security Income program, such as income and resources and living arrangements issues. NOSSCR suggested changing the regulatory text to specifically mention “60 days after receipt of award notice.” SSA said that they would consider this change.

Form SSA-1696

NOSSCR asked how long a representative would need to keep a paper copy of the Form SSA-1696 under proposed §§404.1740(b)(3)(iii) and 416.1540(b)(3)(iii). NOSSCR also asked whether a representative could keep a scanned copy. SSA replied that NOSSCR should provide written comment.

NOSSCR asked whether the Form SSA-1696 would be multiple pages. SSA confirmed this.

Contact Person

NOSSCR asked who was the “contact person” in 73 FR 51964? SSA explained that an entity needed a contact person with whom SSA could communicate. NOSSCR asked whether the contact person was the same as the principal representative. SSA replied that they are not the same. A principal representative can be an entity, and in such a case the entity would need to identify a contact person who works for the entity with whom SSA can communicate.

Direct Deposit Registration

NOSSCR suggested that SSA collect attorneys’ state bar association identification numbers when attorneys register to help save time. NOSSCR also suggested that SSA request letters of good standing from state bar associations for the states in which an attorney is licensed to practice to help alert SSA if there was an ethics or other problem. NOSSCR suggested dealing with the problem early rather than relying solely on the sanctions process after a problem occurs.

Direct Deposit

NOSSCR asked whether SSA would be able to remove an overpayment directly from a representative’s account. SSA said that a representative would be given notice and the opportunity to respond before SSA would collect money from a bank account.

NOSSCR noted that some representatives have commented on the NPRM that they cannot ascertain for which claimant a payment is made when SSA pays by direct deposit. NOSSCR reported that many banks don’t understand how to transfer the accounting information of a claimant’s payment to a representative. NOSSCR suggested that SSA prepare an official fact sheet to educate banks on how to transfer this information to representatives. SSA responded that this information is already available on www.ssa.gov, but that SSA would consider preparing a fact sheet.