One of my colleagues wrote a letter to his Congressman about the problem of a Social Security hearing office scheduling hearings without contacting attorney offices first. This is contrary to established agency practices which are posted in the agency's HALLEX manual. His Congressman in turn wrote Social Security which sent back the reply below. Click on each page to view it full size.
If you're not involved in the hearing process, you can regard complaints about this as nothing more than attorney whining, but you'd be wrong. The fact that this is happening is a sign of desperation at the hearing offices. They're under so much pressure to schedule hearings that they're deliberately doing something they know will actually take more time in the end. Social Security attorneys have many clients. It's the only way you can make money in this kind of practice. If hearing offices don't call attorneys before scheduling hearings, inevitably any attorney will have conflicts between scheduled hearings. It takes longer to reschedule hearings than it would to make the phone calls in the first place. We're even seeing cases where hearing offices are refusing to reschedule hearings even after they've been notified that an attorney has a conflict with a previously scheduled hearing. Hearing offices that do this have to know that the Appeals Council will remand 100% of such cases but they're doing it anyway.
As you can see from Social Security's response, there's not enough concern at Social Security's Atlanta Regional Office that they intend to do anything about the problem.
By the way, from the letter, it sounds like the law firm was complaining about the Raleigh hearing office but that's not the problem office. Raleigh is still calling. The law firm was complaining about the North Charleston, SC hearing office that serves the Southeastern corner of North Carolina.
This problem isn't limited to North Carolina. It's not affecting every hearing office but it is affecting many nationwide.
I'm trying to think of an analogy to explain why this is so concerning. Let me try this one. Let's say a police officer pulls over a woman who's going down the road at 90 miles an hour. The officer finds a child in the back seat. The driver explains "I was just trying to get my child to school on time." I think you'd understand that the problem wasn't just the speeding. You'd know that something was clouding the driver's judgment and you'd think that whatever was clouding the driver's judgment was probably even more worrisome than the speeding itself.
I'm trying to think of an analogy to explain why this is so concerning. Let me try this one. Let's say a police officer pulls over a woman who's going down the road at 90 miles an hour. The officer finds a child in the back seat. The driver explains "I was just trying to get my child to school on time." I think you'd understand that the problem wasn't just the speeding. You'd know that something was clouding the driver's judgment and you'd think that whatever was clouding the driver's judgment was probably even more worrisome than the speeding itself.
Not calling reps to pre-schedule is beyond stupid. It is contrary stated policy in HALLEX which states that "generally" reps will be called to set up hearings. But worse, it reflects an attitude that we won't call and you can't make us, more fitting to five year olds than adults trying to get a job done in the best way possible.
ReplyDeleteRecently, my home office transferred a large number of cases to offices in the Dallas Region. The scheduling was done out of the Regional Office. There were no phone calls or other contact. We first noticed the hearings scheduled not by receiving a notice but by seeing them listed on our hearing list. As it happened, there were seven cases scheduled when I was going to be away on vacation.
I called the RO and was first told that they do not schedule hearings. When I pointed out that this is contrary to what was listed, I was transferred to a supervisor. That person admitted that they had scheduled the hearings in their office. When I told her they were scheduled without calling inconsistent with HALLEX< she informed me that the HALLEX no longer applied since we were now getting at least 75 days notice of the hearing. I told her first, that the rules had not been changed in regard to contact and that I get really annoyed when people tell me something that is not true. I then pointed out that it doesn't matter how much advance notice you give me, I still cannot be in two places at the same time.
The cases when I would be away were changed by sending them back to my local office. They were then rescheduled by that office with a phone call.
At a meeting a few months ago between the local SS bar and the HOCALJ and staff, they had proposed doing away with notice. The reason given was that some reps did not respond to calls to schedule and this delayed the process. That may be true of some but everyone in the room said it was not true for them. We proposed that the calls continue but that if a rep did not contact the ODAR within 24 hours to complete the schedule, then the problem was on them and ODAR wold just go ahead and schedule as they wished. But it was agreed that punishing those who cooperate because of other's action was not a good idea and that only by working together could all interests, clients, reps, and the Hearing Office be satisfied.
The call to the rep to schedule a hearing is the proverbial stitch in time that saves nine. Some hearing offices would rather do the extra stitching it appears. That's poor judgment, especially considering the already enormous backlog and demand on current SSA staff time.
ReplyDeleteThis is also becoming a problem in Illinois.
ReplyDeleteHow good or bad generally is relations between a hearing office's staff and the paralegals/secretaries at the law offices in their area?
ReplyDelete(Lawyers, don't even try to pretend you actually do work in this area)
This problem with doing stupid things that cost time and money in the short sighted interest of "accomplishing a task" or, more usually, "meeting a goal" is happening throughout ODAR. It's not just a scheduling problem.
ReplyDeleteThis is a huge concern where you practice in more than one ODAR and in more than one area of law and have dockets in State and Federal District Court.
ReplyDeleteMetairie LA is notorious for this. Prior to the 75 day rule, they would often schedule hearings without contacting our office less than 30 days out. Once they did it with less than 20 days notice, after which we of course objected. The Chief ALJ there has a policy where he simply refuses to work with law offices to schedule hearings in an orderly fashion.
ReplyDeleteOur office manager does our scheduling. She goes through great trouble to develop good relationships with the schedulers of the ODARS in which we normally practice. She bends over backwards to accommodate hearings when they call to schedule (it helps having 9 attorneys available to cover hearings). We are the office they call first when they are pressured to schedule hearings because they know we will almost always fit them in. This keeps the calls coming and mostly prevents the hearing notices arriving without a scheduling call first.
ReplyDelete"Alternative scheduling practices," are those like alternative facts?
ReplyDelete@6:26 & 8:44 are SPOT-ON.
ReplyDeleteManaging ODAR Hearing Offices and treating everyone like 5 year olds, "We won't call, and you can't make me," is not limited to scheduling hearings, but permeates throughout every function and mechanism of ODAR. This started with the roll out of HPI in 2000, when OHA was changed to ODAR. The HPI restructuring created more GS-11 to GS-14 positions, i.e., Paralegal Specialist, GS, and HOD, and this opened the doors to a mass influx of people from Operations and the DO's coming into ODAR as Manager's. This is when Management of every component of ODAR increasingly looked liked a bunch of not necessarily the best qualified adults managing 5 year olds. OHA operated in a more collegial and respectful manner. As more and more Operations and DO people came into ODAR as Managers, this ineffective, inefficient management style from the days of tester year increasingly became dominant and permeated every component of ODAR. It has been worse than ever the past few years. Unfortunately, every time the issue rises for meaningful dialogue, TPTB put an immediate stop to such employee engagement, and pound their fist down even harder with unattainable quotas and punitive manners of enforcing them. After 30 years, I am convinced the only way to change this nightmare form of Management will require a significant change in leadership at the top. Inasmuch as OPM is stressing the importance of employee engagement with effective Agency Management, perhaps this can serve as impetus for a large change of leadership at the top.
Our firm received a letter last month from the Orland Park, IL office that reads: "The Orland Park, IL hearing office is scheduling over 600 cases for hearing every month. In order to provide timely and excellent public service to the claimants, our office must change the method of scheduling. We will schedule the hearings without contacting the representatives first. We must do this in order to meet the requirements of the Uniformity Regulations and provide required advance notice of the hearing. This new procedure will begin with the hearings scheduled for the last week of July 2017.
ReplyDeleteWe recognize that this may cause some initial adjustment. However, based on the new Uniformity Regulations, we will be giving you at least 75 days advanced notice of the hearing. (See 20 C.F.R. 404.938(a) & 416.1438(a)). This will give you ample time to prepare the case for hearing and submit all evidence according to the regulations.
We request your cooperation so that we can best serve the public."
This was signed by the HOCALJ.
Just like nearly every change ODAR has attempted to make over the past several years, this one too will fail miserably.
ReplyDeleteI think ODAR employees, and ALJs in particular, can't complain up the chain of command (or those complaints are simply rejected) that they find the need to show they still have some power and take it out on the claimants and their representatives.
If they don't call, I withdraw. If they like doing things on their own so much, they can do everything from scheduling onward.
ReplyDeleteWhere is the evidence for the statement "It takes longer to reschedule hearings than it would to make the phone calls in the first place"? Is there proof that a sua sponte scheduling system is overall less efficient than a call-every-rep-first system? Because the former is used by every court of record I'm familiar with: The appellate court doesn't call and ask when you'd like your oral argument to be held, the district court judge doesn't ask for your permission before cranking out a scheduling order or calling you in for a motion hearing, etc.
ReplyDeleteIf you have a conflict, you file a motion and ask for relief. It's just a part of practicing law. And you don't even need a motion at ODAR, just a phone call or a letter.
I won't defend the refusal to reschedule hearings when reasonable requests are made, though.
one thing I don't get is how often the schedulers manage to set hearings when the rep is already supposed to be at a hearing either at that hearing office or a different one. SSA folks have told me that the schedulers are able to see this and should be able to avoid it. A scheduler who lives in Florida has at least a general idea of how long it takes to get from, say, Miami to Tampa, and should realize that if a rep is already scheduled for a 10am hearing at one, she isn't going to be able to attend an 11:30 hearing at the other. That scheduler should realize that filling the 11:30 hearing slot with that rep is going to require more work down the road because it will have to be rescheduled.
ReplyDeleteUnless they are *trying* to get claimants to fire their reps and show up unrepresented, or hoping that in some cases nobody will come and they can dismiss the case. 1 in 5 disability hearing requests last year resulted in dismissals, according to the waterfall chart. Some of the folks died before a hearing. Some moved and never left a forwarding address (and a lot told SSA their new address and it never made it into all of SSA's systems). Some probably got better or went back to work. But 1 in 5 is a lot, and a lot more than in years past. Something weird is happening with that.
File a motion with ODAR? That's cute. A motion that never gets any attention, never gets any response, and is not reviewable one way or another - all in the name of 'efficiency'.
ReplyDeleteWe received a call yesterday that Orland Park ODAR has determined that their new system of just scheduling hearings is NOT working and they are going back to making two calls to the reps office. I'm not sure of the impetus for going back to a more reasonable system, but there had been a lot of phone calls and letters from reps to all levels of ODAR. We are thrilled and will continue to work closely with schedulers to help them with their work.
ReplyDeleteYou lawyers are a bunch of babies, needing a phone call to see if you can please come to hearing? Grow up. Get a real lawyer job and see how coddled you really are.
ReplyDeleteIt is also frustrating when the attorneys follow the hearing office's request to send an e-mail with the dates that they are unavailable for a hearing and yet, hearings ultimately still get scheduled for the dates that they were notified about. Another issue we have is having multiple hearings with different judges scheduled on the same day.
ReplyDelete