From a Notice of Proposed Rule-Making (NPRM) that will appear in tomorrow's Federal Register:
I have heard recently that the Appeals Council is seeking "decision-writers." In the past, the category of employees reviewing Appeals Council filings and writing Appeals Council decisions has been called "analyst." Decision-writer is the job title for those writing decisions for ALJs. Hiring decision-writers makes sense if AAJs will soon start holding hearings but I don't see how that will happen, given the length of time it takes to go from the NPRM to final regulation stage. Could the AAJs start holding hearings under the framework of the current regulations?
As a workload matter, this NPRM makes no sense. The ALJs are rapidly working off their backlog. I haven't seen any improvement in the Appeals Council backlog. I think you have to assume that there's something about ALJs that Social Security management doesn't like.
By the way, this NPRM was cleared by OMB back in May. It's been sitting there, waiting for the Commissioner's approval for more than seven months. I don't think it's a coincidence that this gets published just before Christmas when it will get less attention.
... We propose to clarify that an AAJ [Administrative Appeals Judge] from our Appeals Council may hold a hearing and issue a decision on any case pending at the hearings level under titles II, VIII, or XVI of the Act. Just as ALJs [Administrative Law Judges] have the authority to hold hearings on a variety of disability and non-disability claims, we would not limit the kinds of claims that AAJs could hear. AAJs would be required to follow the same rules as ALJs, and the hearings they hold would apply the same due process protections as hearings held by our ALJs. ...This is only a proposal. The public may comment on the proposal. Social Security must consider the comments. If the agency wishes to go ahead with final regulations, they have to submit them to the Office of Management and Budget (OMB) for approval. This is a process that ordinarily takes many months.
I have heard recently that the Appeals Council is seeking "decision-writers." In the past, the category of employees reviewing Appeals Council filings and writing Appeals Council decisions has been called "analyst." Decision-writer is the job title for those writing decisions for ALJs. Hiring decision-writers makes sense if AAJs will soon start holding hearings but I don't see how that will happen, given the length of time it takes to go from the NPRM to final regulation stage. Could the AAJs start holding hearings under the framework of the current regulations?
As a workload matter, this NPRM makes no sense. The ALJs are rapidly working off their backlog. I haven't seen any improvement in the Appeals Council backlog. I think you have to assume that there's something about ALJs that Social Security management doesn't like.
By the way, this NPRM was cleared by OMB back in May. It's been sitting there, waiting for the Commissioner's approval for more than seven months. I don't think it's a coincidence that this gets published just before Christmas when it will get less attention.
12 comments:
Not surprising considering half of Mississippi's annual budget has to be covered by the federal government.
So the Appeals Judge holds hearing and decides case, the case then gets appealed to the Appeals Judge. I got it.
Once we start actually looking at the CDRs we should be looking at maybe the ALJs will have more to do. I do not know why it takes the Appeals Council staff so long to look at a case
Since the pending cases are so low at OHO, one wonders why this is being done? Maybe the agency wants to start consolidating hearing offices. Consolidation of hearing offices makes sense at it would result in elimination of many unnecessary HOD and group supervisor jobs.
I have an idea why they'd want alj. One is they have no union and don't have same independence as an alj. Another and perhaps most likely is that the appeals council is used to denying everything (90 percent vs 40 to 60percent for alj. Even with a different standard they would likely be so used to denying they d keep denying.
The ac analysts are similar to a decision writer and likely would not need a title change. An analyst reviews case before alj or appeals officer and makes a decision and sends it to alj appeals officer to review including if it is a decision, which is rare but sometimes happens. Sometimes an will request a different action after review. A decision writer is told the outcome by alj before writing the decision. They have a different union. An analyst also tops out at gs 13 although very hard to get, where decision writer tops out at gs 12. So they could have analysts write decisions without much change but they might hire decision writers to save money. But with a hiring freeze who knows.
Before the hiring freeze the ac backlog had decreased quite a bit, almost in half for denials but the ac loses 80 to 90 percent of the analyst hires so the a backlog could increase with hiring freeze
Until the AC can semi-competently perform their own job duties, perhaps we should hold off on increasing their responsibilities. This is the same body that has reversed decisions for things like finding a claimant meets listing 9.00.
Congress shot down this scheme back when the house majority was red.
Do you really want your disability hearing to be presided over by someone whose performance is rated by SSA and whose bonus depends on making the agency happy? Because that describes AAJs. Every claimant and claimant's representative should be very worried about this. The NPRM, of course, does not mention this important distinction between AAJs and ALJs.
The Administrative Procedure Act actually requires appointment of ALJs for these formal hearings. Period. The CFR cited in the NPRM is in violation of the APA, and claimant reps should file such written objections as soon as the AC snatches their case.
The alleged AC Administrative Appeals Judges are mere agency employees (not judges) and receive ratings and bonuses from the agency, and can be threatened with not receiving continued good ratings or bonuses in the future. These circumstances are prohibited by statute for ALJs. Therefore, when the agency employees at the AC, who are not ALJs, hold the formal hearings on the record and adjudicate the case, it violates the claimants' due process rights.
The hearing office ALJs have been efficiently and steadily reducing hearing backlog notwithstanding the ALJ attrition rate over the past 2 years. There is absolutely no good or justifiable reason for agency employees to be holding de novo hearings at an administrative appellate level by an agency administrative appellate body.
3:08 PM
The vast majority of ALJ hearings are informal. The Social Security Act does not have a statutory requirement that ALJs hold hearings. Instead, the Act requires that "the Commissioner shall give. . . reasonable notice and opportunity for a hearing . . . [.]" 42 USC 405(b)(1). The Commissioner, under the Act, is also empowered to promulgate regulations to carry out their duties and obligations under the Act, and it is in that regulatory scheme that the right to an ALJ hearing comes from.
@7:18. Do you really think that most ALJ's competently perform their job duties?
I think the idea is having OHO decision writers do Appeals Council analyst work, since the positions are somewhat fungible with a bit of training. Just having the resources follow the backlog -- I wouldn't read into it any more than that.
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