From a Notice of Proposed Rule Making (NPRM) that the Social Security Administration will publish in the Federal Register tomorrow:
We propose to revise our rules to explain that the agency retains the right
to determine how parties and witnesses will appear at a hearing before an administrative law judge (ALJ) at the hearing level of our administrative review process, and we will set the time and place for the hearing accordingly. ...
We propose that parties to a hearing will not have the option to opt out of appearing by the manner of hearing we choose. ...
This is a proposal. The public can comment on it. Congress can’t prevent its adoption but can certainly weigh in on it. The new Democratic majority in the House could make Andrew Saul pay a price for going ahead with it. Expect a House Social Security Subcommittee hearing on this issue next year.
20 comments:
Refusing a VTC hearing means you won't get an ALJ from a National Hearing Center. So if this regulation takes effect, does that mean that there will be no way to avoid an NHC ALJ?
Yes, soon there will be no way to avoid an NHC ALJ. Although there is no reason that you would want to "avoid" an NHC ALJ, since there is no longer any potential Lucia problem with the NHC ALJs. They are just as effective (and as real) as regular non-national ALJs now.
With this tool in it's tool chest, SSA can finally begin to plan for the future. And the future is the National Hearing Hypercenter (NHHC).
The NHHC will be a unitary permanent multi-tower bureaucratic complex located in the heart of downtown Falls Church, Virginia. The flexibility and efficiency of having all ALJs in the same location, with only one chief judge to manage the entire ALJ corps, cannot be underestimated. The cost savings and hearing scheduling speed will be incredible. Social Security will finally be able to act as one unit, seamlessly transitioning with the ebbs and flows of the global financial economy.
From the heart of the NHHC, ALJs will be flexibly sourced by video teleconference to mobile modular telehearing centers (MMTCs) that will be nominally attached to various Federal Buildings and Social Security offices around the globe. These MTTCs will serve as light footprint lily pads that can be redeployed as needed once the massive Millennial generation begins to enter their "prime disability years." MTTCs will be remotely driven from the "hearing transport floor" of the NHHC by a security guard-vocational expert and will be able to travel wherever to whichever Remote Hearing Zone (RHZ) has hearings for that day. Since they the RHZs will be effectively virtual space, new RHZs can be created easily and old RHZs can be discontinued whenever required. If a new city is born, it will only take a few minutes to set up a new RHZ. If a city dies, the RHZ will simply be deleted from the system.
Truly, the future is bright.
5:06 PM Sounds like management/control type. This NHHC plan can only be to further squeeze out as many denials as possible. Clearly, there has been no effort to get the lowest payers to pay more, only get rid of/encourage higher payers to pay less. This isn't about alleged "quality," it is about control. Control clearly means more denials. By the way, SSA can "save" money by denying the disabled twice. Now and when they get old enough to retire. But, these "savings" are in direct conflict with the entire premise of the agency's alleged purpose.
Immigration, also admin law does most of the hearings by video. Not uncommon.
@8:56
I think 5:06 was being facetious.
This is not simply an issue with finding work for NHC ALJs. This is an issue for even local offices that have low pending workloads. There are some offices across the country that simply have very few cases per ALJ at this time, and they are trying to find work for those judges in any way they can. In some instances, the only way to do that is assign cases from overburdened offices via video, but many of those offices have a 90% opt-out rate that would preclude any assistance.
So it seems there are basically three options available... allow those judges to hear cases outside their jurisdiction via video in an effort to alleviate the wait time and workload for high workload offices; close down the low workload offices and move those judges to other offices that need the help while simultaneously burdening those local claimants who no longer have a local office; or pay for those judges to do travel dockets in other offices, which would significantly increase expenses in the agency as well.
Just because administrative law hearings are done by video doesn't make them right.
"...why don't we just throw him off the cliff and save a bullet..."
ALJ's won't get as many right but who really cares?
No one normal "judges" a disability case based on how the claimant looks like - in person or on a screen. Much less how the representative looks like, in either case... Also no demonstrative evidence is commonly used in disability cases which would preferably have more effect in person. Finally, quality of video streams - including audio - has greatly improved in recent years and is not an obstacle to a full and fair hearing whatsoever. Sure, many would prefer to continue with Kafka's Austro-Hungarian 19th century style hearings but sorry, we're in the 2nd decade of the 21st century. We FaceTime, we text, we stream movies, shows, concerts... many claimants - even some with quite limited education or language issues - are quite savvy with online endeavors per their own admission in function reports, clinical interviews, testimonies... And now it's a problem having them appear via video (like they do often with their mental health providers, VA providers, or aliens in removal proceedings as someone earlier hinted, or individuals in involuntary mental commitments hearings in some states...)? Really?! This is just another tool to get cases of allegedly disabled people processed faster - and get them benefits if benefits are deserved under the law. And if not - get them to look for other directions in life. As long as due process rights are not violated - and they are not - there's nothing anyone can complain about it here. There will be a day when all hearings will be via video and that day is not nearly as far as some would hope.
@4:13PM If you are an ALJ, my guess would be that your pay rate is probably in the 20s. If you are not, and are just an SSA insider, you have no clue what you are talking about. Yes, decisions need to be based upon the evidence in the case and not what the claimant looks like at the hearing, EXCEPT, meeting someone in person can at times help to put the evidence in the record into a greater context than it is in a vacuum. And I am sorry, video just isnt the same as in person.
Case in point, I had a client today with an extremely bad tremor. The records just say he has a tremor but what else can you say in a record. The Judge was able to observe my client throughout the course of the hearing and the extent of his tremor, something that a video judge would not have been able to do because the set up barely gets the claimant in the shot and its usually so zoomed out all you know is that they are in the room. And video judges rarely look at the screen anyway.
If you don't think there is a difference between video and in person, you obviously don't really care about the person appearing before the ALJ to begin with, its just another piece to grind thru the mill.
4:13 PM. These "other directions in life..." What are you referring to?
OK, so you don't like in person hearings you don't like video hearings, you don't like reconsiderations and you don't like the back log. So basically what you want is to complete an application and get paid. IT DOES NOT WORK THAT WAY!!!
Choices, you can whine and moan and do nothing. Most Likely.
Or, you can develop a new strategy for dealing with video. You cant just sit on your but and blame everyone else, you have to come up with a way to get the point of your client across. How, not my problem, it yours, that is what you are paid for.
What is going to happen. Not a thing.
7:38 PM, other directions mean back to work (or continue to work, something that quite a few already do - p/t or f/t, admittedly or under the table), continue enjoying retirements (from the military, state or local govt job, private retirement, collecting early Social Security retirement, etc.), refiling if and when impairments worsen (or they get to grid out), keep doing nothing (as some in their 40s or 50s did for years - no earnings, or only spotty, here and there, non-SGA earnings over many years predating alleged disability onset date), keep taking care of the family as lifelong homemakers, apply for or continue w a claim or claims filed with other governmental or private entities (Worker's Comp, VA, short- or long-term disability, etc.)... not to mention ones who are in and out of prison and look for some income "in between" incarceration periods. Or whatever else they consider "other directions in life." Note all this applies to ones who are not found legally disabled as that term is defined in federal law.
5:13 PM, you're entitled to your opinion as much as I'm - or anyone else around here - entitled to my/his/hers. But for as long as you had only one perspective to the issue based on experience as a rep (with apparently some ALJS who like to really "zoom-in" and/or not look at the claimants at all - which they, I bet, tend to do when they hold in-person hearing too), you're regrettably the one who has no clue what s/he talking about. Peace.
@12:56PM which is apparently earlier @4:13PM
I gave one example, as just that, one example. I have done hundreds of VTC hearings and have NEVER had an ALJ zoom in once. I can count one one hand the times that an ALJ has adjusted the camera at all.
If SSA is going to force claimant's into VTC hearings, they better be ready to pony up some funds to spend on VTC sites, particularly the remote sites. I anticipate, because I will be one of them doing it, that conscientious representatives will be raising issues relating to the lack of privacy within some remote sites. Paper thin walls where every word of a claimant's most private details can be heard by anyone sitting in the waiting area or the hearing room next door.
I also expect that issues will be raised as to the inability of claimant's with hearing and visual impairments to adequately participate in VTC hearings. Likewise, the quality of audio from experts testifying via phone is often so poor that it is near indecipherable. These are all issues that will likely be raised more often in objection to a particular hearing.
4:13/12:56. I think you have shown a window into how you view claimants. You see them as lazy, unscrupulous bums and even criminals. Or, are you suggesting that, given no other real option , they should resort to crime? What about those who none of the above apply to? Homelessness? Did you ever consider that the reason many claimants have "spotty," inconsistent, less than SGA work records is BECAUSE of disability? I have had disabilities since the age of 12 and multiple since the age of 17. I worked for 30 years, until I simply could not work anymore. I was fired from jobs soon after having a seizure. I was let go at the end of a company "probation" period , due to "lack of agility," because it would have been difficult to get rid of my later (union rules). In fairness , I really wasn't capable of doing that job. That was nearly 25 years ago. I have medical records and employee records showing my impairments since then. Still, SSA claims I didn't "prove" I am disabled. So, what "other measures" would you recommend for someone like me? By the way, the last time I was able to work regularly was when the Giants beat the Patriots in the Super Bowl (Feb.2012) and at all was the Olympics in Sochi.
I think the ultimate goal is to close many hearing offices and get rid of the excessive management jobs at OHO hearing offices. When mgt. folks are teleworking three days a week one has to ponder what exactly they are doing all day to help lessen the backlog. So, it will be a good thing to get rid of the excessive management jobs at OHO hearing offices. It's long overdue.
2:38pm - as I understand it, the ALJ does not have the ability on his end to “zoom in” on the claimant - only to zoom in on themselves. They would have to ask someone who is actually in the room with the claimant to use that remote control to be able to zoom in or change the view of the claimant.
@7:33
Yes, we can control everything on the other end, including zoom and direction of the camera. I know because I do it often. The real issue is that at least half of the corps isn't capable of dialing the remote site on their own, let alone operating the equipment to adjust the camera.
Bottom line, it is going to happen. The question is how to make it work to better enhance the process for all of the affected parties. The ALJ union is in a position to bargain over the effects in the workplace; reps and claimants should avail themselves of the opportunity to make reasoned comments during the open period; and for all of us to become knowledgeable about the best way to utilize this technology.
No we do not get much demonstrative evidence but in my decade as an ALJ I've had a person raise their hand for administration of the oath and saw their hand was deformed. There was not a single mention of the deformed hand in the record because it has been 40 years since anyone treated him for it after a childhood accident. He worked for years with a deformed hand and since it wasn't the reason he stopped working, he didn't mention it in the record. Even in person it wasn't that noticeable.
I had a gentleman tell me he couldn't pick up anything heavier than a plate and fork. I noticed his hands were dirty. He had changed a tire on a three quarter ton pickup on the way to the hearing with no assistance. Now is that dispositive in and of itself? Absolutely not but it does shed some light on the conservative treatment that seemed out of alignment with his claimed limitations.
While speaking to the mother of a teen who had hyperactivity that was reported to be poorly controlled on medication, the teen fidgeted constantly and played with the tissues he had pulled out of the box but I soon noticed he only did so when I turned to look at him. Dispositive? Not at all but the counselor at school didn't believe his hyperactivity was genuine while (oddly enough) the state consultative examiner did believe it was genuine, watching him sit quietly until I looked his way certainly helped me believe the expert with the longer relationship.
I've seen the outline of a full mechanical knee brace under the claimant's pants and developed testimony about it because they were using it longer than they had been told to.
Not unusual when holding a hearing, especially for someone from a rural area, for them to walk up and shake my hand following the hearing and thank me for listening to them because no one had ever sat face-to-face to hear their story.
When I have to explain to someone that I can't award benefits based on a remote date last insured when there are no medical records from any period close to that time, I think it is better to do it in person.
If you have a dandy case based on the record, unless its new stuff that came in since recon, odds are that case has already been paid and doesn't come to hearing level.
Hearing level is a blend of cases that do not fit the requirements of the program and cases that need further consideration of new evidence and the whole picture.
I'd guess the VTC/in-person difference really makes a notable difference one way or the other in about 1% of cases and probably isn't cost-efficient for the agency given that I think it is roughly neutral in outcome (ie. someone who might not have been awarded via VTC but is in person is offset by the person who is awarded in a VTC hearing but might have been denied in person).
I understand the desire to save money given that Congress doesn't like paying for the program in the first place and that is going to win out over getting a small fraction of cases right that you would have gotten wrong. Perfect outcomes are an impossibility, it is all a matter of our tolerance level for getting some percentage wrong and in the case of video vs in person, the difference is probably not big enough to make the case to retain status quo, even though the rule change would only impact about a third of the hearings at the very most.
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