AAJ Hearings To Remain A Possibility As CRA Resolution Fails

      In the twilight days of the Trump Administration, Social Security adopted new regulations allowing Administrative Appeals Judges (AAJs) to hold hearings on disability claims. Previously, only Administrative Law Judges (ALJs) were able to hold such hearings. AAJs have only handled cases pending on review at the Appeals Council. This has been concerning since AAJs, unlike ALJs, have not been thought to enjoy decisional independence.

     The Congressional Review Act (CRA) permits Congress to disapprove "midnight" regulations adopted as an Administration is leaving office. CRA resolutions may not be filibustered. A CRA resolution was introduced to disapprove the AAJs regulations. The problem with CRA resolutions is that they must be acted upon within a certain number of days. The computation of when the days start to run is a little tricky but, apparently, the time ran out yesterday but no action was taken on the CRA resolution on the AAJ regulations.

     I would be surprised to see any AAJ hearings scheduled in the near future. There's no plausible justification since there are enough ALJs to handle the current workload and Democrats control the White House, Senate and House of Representatives. Further out, who knows?

Opposition To AAJ Hearings

      A press release:

Today, Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) released the following statement after the Trump Administration announced it would finalize a rule on December 16, 2020 to change the Social Security Administration’s appeals process by replacing independent and impartial Administrative Law Judges with internal agency lawyers: 

“For nearly two years, we’ve sounded the alarm that this change would erode due process for Social Security and Supplemental Security Income applicants and beneficiaries and threaten their access to their earned benefits. The rule puts unqualified agency staff in control of deciding appeals hearings and contradicts the congressional intent of the law governing such proceedings. We condemn this political decision that will go into effect just as the Trump Administration is on its way out the door. It is our hope that the Biden Administration rights this grievous wrong and ensures that all those who are eligible can access their disability, retirement, and survivors’ benefits.”

     No mention of the Congressional Review Act. 

Regs On AAJ Hearings To Go Into Effect On December 16

      Monday's Federal Register will contain new final regulations from Social Security on Hearings Held by Administrative Appeals Judges of the Appeals Council. You can read the regulations today. The effective date is December 16. I do not expect that these regulations will be implemented during the Biden Administration. It is possible that they will be disapproved under the Congressional Review Act. Neither a filibuster nor the Senate Majority Leader can prevent a Congressional Review Act vote.

     The explanatory material published contains this sentence (emphasis added): "Because AAJs and ALJs have similar levels of training, will follow the same set of policies, and have equivalent decisional independence, we anticipate that when AAJs are used at the hearing level, they will provide the same level of service and fairness as ALJs do." I can't say that I take that statement at face value. In fact, if true, I don't know what the point of these regulations is.

Regs To Allow AAJs To Hold Hearings Approved

      In August Social Security asked the Office of Management and Budget (OMB) to authorize final regulations to allow Administrative Appeals Judges (AAJs), who currently only handle cases at the agency's Appeals Council, to hold hearings in place of the Administrative Law Judges (ALJs) who currently hear them. ALJs would still be allowed to hold hearings even under these regs. It's just that AAJs could start doing it as well. Those regs have just been approved by OMB. This must have been considered a very high priority matter. OMB rarely acts that quickly on regs.

     You may think, AAJs, ALJs, what difference does it make? They're all judges, right? Not really. Unlike ALJs, AAJs enjoy zero decisional independence. There would be nothing to prevent Social Security from imposing quotas on AAJs, telling them they could approve benefits for no more than, let's say 25% of the cases they hear. They can't do that with ALJs. I don't know what point there could possibly be in these regs unless you wanted to remove that decisional independence.

     To be honest, there is something that might prevent Social Security from imposing quotas on AAJs and that is public opposition. My feeling has long been that if ALJs didn't exist, Social Security would have to invent them. As problematic as they can sometimes be, ALJs add a necessary legitimacy to the process. Take them away and you'd soon have a crisis and the AAJs themselves would be screaming the loudest about their lack of decisional independence. I doubt that the people behind these regs realize that. A maximalist, public opposition is a sign I'm on the right track, attitude is part of this Administration's DNA.

     Social Security will make these regs final by publishing them in the Federal Register. Unless they're even more bloody minded than I think, I expect they'll wait until after the election to publish these. 

     They can't make ALJs disappear immediately. Even if you told ALJs they could either become AAJs or be riffed, which would be the harshest way of doing this, it would take months if not years to accomplish.

     If Trump is re-elected, expect to see a big controversy over implementation of these regs. Don't expect knee-jerk support for this from Congressional Republicans. Republicans apply for Social Security disability benefits. In fact, rural areas, where the GOP is strong, produce a higher rate of disability claims than urban areas where Democrats are strong.

     If Trump loses, this will go away, one way or another. The most likely way is the Congressional Review Act that allows Congress to hold an up or down vote on regs adopted in the last few months before a change of Administration. Even the current Senate might well vote these regs down. If that fails a Biden Administration could refuse to implement the regs and could eventually go through the rulemaking process to repeal them.

    

Regs On AAJ Hearings Advance

      Yesterday, the Social Security Administration sent over to the Office of Management and Budget (OMB) proposed final regulations on Hearings Held by Administrative Appeals Judges of the Appeals Council. If approved by OMB, these will be published in the Federal Register and go into effect.

     Under the Congressional Review Act, the incoming Congress could overturn these regulations by a simple majority vote in each House of Congress. In the alternative, should Joe Biden become President, his Administration could refuse to implement the regulations and go through the longer process to undo them administratively.

Proposal To Have AAJs Hold Hearings

     From a Notice of Proposed Rule-Making (NPRM) that will appear in tomorrow's Federal Register:

... 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.

Proposal To Have AAJs Holding Hearings

     Social Security has asked the Office of Management and Budget (OMB) to approve proposed regulations that would allow Administrative Appeals Judges (AAJs) to hold hearings. The AAJs currently handle cases at the Appeals Council. When you combine this with the recent proposal that video hearings could be forced upon claimants you get an idea of what Social Security has in mind -- the end of Administrative Law Judge hearings. There would be some huge building housing AAJs working away in cubicles holding only video hearings. The AAJs would be subject to intensive review to make sure they tow the party line. Even though Social Security's centralized operations are the most troublesome parts of the agency in my opinion, Social Security management loves centralization. Few people in upper Social Security management have worked in the field. They just distrust field operations. They like putting their eggs in big baskets. 

    Really, does anyone think that the centralized payment centers, the teleservice centers and the Appeals Council are the most efficient parts of Social Security?

I Have Some Questions

     I had time over the weekend to watch the hearing held last week by the Senate Committee on Homeland Security and Government Operations on Social Security's plan to bring in some Administrative Appeals Judges (AAJs) to hold some hearings now being held by Administrative Law Judges (ALJs). The Committee members asked thoughtful questions but I have some questions that I wished they had asked:

1. Will AAJ decisions be subject to quality assurance reviews either before or after the decision is issued? 
2. What productivity does Social Security expect from these AAJs, especially considering the travel they will be doing?
3. Will all the AAJs be located in the Falls Church, VA area where the Appeals Council is located or will some be located around the country?
4. Hearing non-disability cases, especially those other than overpayment cases, takes unusual knowledge. Will there be extraordinary training for these AAJs? Do not assume that even experienced Social Security attorneys have this knowledge because they don't.
5. Social Security indicates that geographic limitations imposed by ALJ applicants make it difficult for them to hire. Many applicants may want to work in some offices while few, if any, want to work in other offices. However, a new, much larger register is due out in about a year. Presumably, there will then be multiple candidates for each office with an opening. Why not just hire ALJs now where you can and then hire later for the other offices for which you currently lack candidates? It's not like there's an oversupply of ALJs anywhere.
6. Social Security says that currently 30% of claimants opt out of video hearings. Isn't that still going to require AAJs to do a lot of traveling, doing one hearing at one location, then getting on a plane to another location to do one more hearing?
7. Will the opt out figure stay at 30% if Social Security goes ahead with this plan? Social Security has a history of short-sighted thinking on this issue. They thought that requiring claimants to opt out of video hearings shortly after filing a request for hearing would result in fewer claimants opting out of video hearings but the exact opposite happened. I expect there are many attorneys now who don't bother opting out of video hearings since they think it unlikely that Social Security would try to schedule video hearings for their clients. Go ahead with this plan and attorney behavior may change. Maybe I'm wrong on this but I correctly guessed that requiring claimants to opt out of video hearings shortly after filing a request for hearing would result in more claimants opting out of video hearings.

The "Augmentation Strategy"

     From the statement of Teresa Gruber, Social Security's Deputy Commissioner for Disability Adjudication and Review, to the Senate Committee on Homeland Security and Governmental Affairs yesterday:  

The cases targeted for the augmentation strategy represent only 3.6 percent of our hearings pending and the non-disability cases often involve issues that ALJs [Administrative Law Judges] do not typically encounter.

A small number of AAJs [Administrative Appeals Judges] and staff will specialize in adjudicating the non-disability issues, thus freeing up critical ALJ resources to handle disability hearings. But I want to be clear. Although the augmentation strategy is consistent with the Act and our regulations, this is a temporary initiative aimed at addressing a current need – bringing wait times down to 270 days. It allows us to use highly qualified adjudicators, whom we have thoroughly vetted, as we continue with our extraordinary efforts to hire more ALJs. The augmentation strategy is not part of a plan to replace ALJs in our hearings process.

The augmentation strategy is based on longstanding agency regulations. Since the beginning of the Social Security hearings process in 1940, our regulations have authorized the members of the Appeals Council to hold hearings. Under our current regulations, the Appeals Council has the authority to remove a pending hearing request from an ALJ, hold the hearing, and issue the decision. Moreover, nothing in our existing regulations precludes the Appeals Council from holding a hearing in a case that is before it on request for review or on remand from a Federal court.

When a claimant is dissatisfied with an ALJ hearing decision, she can appeal to the Council. Thus the second set of cases are a subset of cases already before the Council – cases where the Council could have completed action on the appeal but have generally remanded back to the ALJ. Under the augmentation strategy, the Council will complete the action on the case and issue the final decision, thus preventing an additional workload from returning to the hearing offices and freeing ALJs to hold hearings on other cases. The sole objective of this strategy is to increase capacity to hold more hearings and issue decisions so that we can, collectively, reduce the time people and their families are waiting for a decision.

     How can hiring AAJs to do non-disability hearings possibly help more than hiring ALJs? The AAJs will have to spend a large part of their time roaming around the country, far more than ALJs who are already located around the country. I would guess that their productivity will be half that of ALJs. I know that Social Security complains that the Office of Personnel Management (OPM) won't give them a bigger roster from which to select ALJs yet there are hundreds of names on the roster now and a new roster is coming. Why take as extreme a step as Social Security is planning? How is this going to look in a few years when a study is done comparing productivity of ALJs and AAJs?