Telephone Hearings Predominate -- Is That A Good Thing?

     From a recent presentation by the Commissioner of Social Security:

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    What if I told you that claimants who show up for in person hearings with an attorney win 5% more often than represented claimants who have telephone hearings? I can't tell you that because I don't know. I've seen no stats on this. Maybe there's some difference. Maybe there's not. You'd think that Social Security could generate those numbers but if they've compiled them, they haven't released them. And don't give me aggregate numbers on telephone hearings. We all know that unrepresented claimants with in person hearings lose most of the time because they couldn't find an attorney to represent them and either didn't show up or show up and lose because of the same problems that made it hard for them to find an attorney.

Wait Time To Get Hearing

April 2024 numbers. From Social Security. Click on image to view full size.

 

OHO Hearing Backlog At Its Lowest Level In 30 Years

     Posted by Social Security's Commissioner, Martin O'Malley, on Twitter:

Some good news: I’m proud to report that #SSA hit a 30-year low in the number of pending hearings as of last week, thanks to our dedicated staff! This is a major milestone, and I know we can do even more with sufficient, sustained funding

ERAP -- What Are We Doing?

     Social Security management has a strong lean in the direction of centralizing anything that can be centralized and some that can't. One of the things that they have centralized is the scheduling of Administrative Law Judge (ALJ) hearings. It's called ERAP -- Enhanced Representative Availability Process -- at least insofar as it applies to people like me who represent claimants. I cannot even imagine a sensible reason for ERAP. Let me set out some problems I have encountered with ERAP:

• It's now February. ERAP is demanding that I tell them when I've available for hearings in August! Do you know what your plans are for August? They have just started scheduling for June. I don't know why we need to schedule this far in advance anyway but why do I have to submit my availability well beyond what they need now.  How is this helping anyone. 
• I have been told verbally that if I fail to meet Social Security's deadline that I am considered available for the entire month even if I tell them well before scheduling actually begins for the month in question. Gotcha! Is there any rational reason for this?
• I have been informed that once I submit my availability that I cannot later change it to say that I am unavailable certain days even though Social Security hasn't started scheduling even for the month before the month we're talking about. Gotcha! Not only must I submit availability six months in advance, I'm not allowed to make changes even if the changes don't inconvenience Social Security in the slightest. Do your plans six months out never change?
  
• Despite providing dates that I'm available six months in advance, Social Security still schedules hearings on days I've told them I was unavailable and they still schedule two hearings at the same time. As best I can tell, they don't even consult the dates I've given them. The burden is on me to catch this and get it corrected. When this happens there is usually a significant delay in rescheduling a case.
  
• Attorney who have clients in two of Social Security's regions have impossible problems since those regions can't coordinate scheduling with each other. Somehow we're supposed to solve this problem for the agency.

     What are we doing here? This is an unworkable system for attorneys. My guess is that it may not be much better for ALJs.

    The old system, which involved hearing offices calling attorneys about each hearing was workable. With all the reschedulings because of errors, I don't know that ERAP actually saves time for the agency. The agency is supposed to be serving the public. ERAP is lousy public service.

CCD Comments On Proposed Regs

  

   The Consortium for Citizens with Disabilities (CCD), a large umbrella organization of non-profits who aid the disabled, has filed comments on Social Security's proposed changes in its regulations on manner of appearance at hearings. Their most important comment is to oppose changing the default manner of holding hearings from in-person to telephone. Now, if you don't specify, you get an in-person hearing. The proposed regulation would flip that.

Numbers Please

      The common wisdom is that claimants receive the same decision whether their hearing is in person, over the telephone and by video but do we really know? We think we know that the rate at which claimants were approved did not decline, at least to a significant extent, when the pandemic began and the switch was made to telephone hearings but do we know this for sure? I don't recall ever seeing any numbers from the Social Security Administration. A 2% difference probably wouldn't be enough to be noticeable without numbers from a database but a 2% change is not insignificant for a claimant. For that matter, numbers from the beginning of the pandemic are not the same as numbers from the current environment in which claimants can choose the method, although maybe "choose" should be in quotes since many law firms and other representing claimants -- and not just national firms -- always advise phone or video, mainly because it's more convenient for them. I doubt that the differences between phone, video and in person are great but we ought to get the numbers. 

    I have to say, though, that there will be confounding elements to the numbers, if we ever see them. In person is now the default mode. That's where a claimant ends up if he or she doesn't make a choice but unresponsive claimants certainly get denied at a higher rate than claimants who choose a method for their hearing. Also, the selection of video is one generally made by better educated claimants. Their chances of success may be different than for less well educated claimants who can only do telephone hearings. Yes, many, perhaps most, Social Security disability claimants lack the technical skills to download an app, register with the app and then access the app when the time comes for their hearing. There's also the problem that those who live in small towns and rural areas are more likely to select telephone or video since they have to travel farther for an person hearing than those who live in urban areas. Rural and urban claimants don't necessarily get approved at the same rate. Rural claimants, on average, have lower educational levels and less access to health care than their urban cousins.

Making It Official

     The Social Security Administration has posted a Notice of Proposed Rule-Making (NPRM) in the Federal Register to make official the availability of telephone and video hearings in Social Security cases.

Phone And Video Hearings Not Going Away

     Not that there was any doubt, but Social Security has decided to make telephone and video hearings a permanent option.

    This is extremely convenient for "national" firms representing disability claimants.

Kafkaesque Indeed

 

Kafka

    Mark Betancourt has written a piece for Mother Jones magazine titled Inside The Kafkaesque Process For Determining Who Gets Federal Disability Benefits.

     The use of the term “Kafkaesque” may be more apt that Mr. Betancourt realizes. Frans Kafka’s day job was in the related field of what would today be called workers compensation claims.

Trying To Cram Telephone/Video Hearings Down The Throats Of Claimants?

     Yesterday I received word through the National Organization of Social Security Claimants Representatives (NOSSCR) that the number of hearings Social Security has scheduled for July and August is down more than 30%. We are told that they will try to schedule more hearings if we'll agree to hearings being held without receiving the notice period required by the agency's regulations and agree that the hearings be held either by telephone or video. 

    I've got three questions:

• Why has the agency scheduled so many fewer hearings this summer? It's not like they're run out of cases to schedule.
• If the problem were merely scheduling, why is it necessary to put pressure on claimants to accept telephone and video hearings? If you're doing in person hearings, you're doing in person hearings.
  
• Will there be a continuing effort to cram telephone and video hearings down the throats of destitute claimants by scheduling those hearings far more quickly?
  

A Report On Social Security's Operating Budget

     The Congressional Research Service of the Library of Congress produces reports to aid Congress in carrying out its duties. They've recently issued a report titled Social Security Administration (SSA): Trends in the Annual Limitation on Administrative Expenses (LAE) Appropriation Through FY2021 that's worth a look. It tells you everything you ought to know, even though for most people the subject, like the title of this report, seems dreadfully boring.

    Let me first explain this LAE business. Since most of Social Security's administrative budget comes from the Social Security's trust funds rather than general revenues, technically the agency doesn't get an appropriation but instead is given a limit on how much it can draw from the trust funds for its administrative expenses -- a Limitation on Administrative Expenses or LAE.

    The main story that I take from this report is that Social Security's workload has gone up while its LAE has gone down. That's not good for those who have to deal with the agency.

    Let's talk about the workload first.  Here's a chart showing the number of claimants drawing benefits from 2010 on:

You can see that since 2010 there's been a big increase from 58 million receiving benefits to 70.2 million receiving benefits. 

    Here's a chart showing what's happened to the LAE, apart from the amount specifically dedicated to program integrity, in constant dollars since 2010:

Notice that in price indexed dollars, the LAE went down from about $13 billion in FY 2010 to around $11 billion in 2021. I think that excluding program integrity funds gives the most accurate picture of what the agency can spend actually answering the telephone, taking and adjudicating claims and processing claimants on and off benefits. Note that Social Security didn't receive significant additional funding for the Covid-19 pandemic, which certainly disrupted its operations and increased its expenses so things are actually worse than they appear.

    Any rational person looking at this history shouldn't be surprised by what has happened since 2010 -- increased backlogs in answering the telephone, taking claims, adjudicating them and processing claimants on and off benefits. The severity of the resulting problems have been somewhat disguised since the agency's hearing backlog has gone down since 2010. That's highly visible but everything else has gone to hell and that's mostly invisible except to those who actually have to deal with the agency, which is almost everyone eventually, but not that many people at any onetime. Be glad if all you have to do is to file a retirement claim. The agency prioritizes them since they're easy. For everything else, get ready to wait and wait and wait.

    Social Security is a mess. The inadequate LAE is why it's a mess. Why has there been so little outcry from Congress?

OHO Caseload Analysis Report

     The report shown below was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It contains basic operating statistics for Social Security's Office of Hearings Operations (OHO).

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Draft Senate Appropriations Bill

Senator Leahy

      Patrick Leahy, the Chairman of the Senate Appropriations Committee, has released a draft Fiscal Year (FY) 2022 appropriations bill (see page 293) covering Social Security. The top line number in his version is virtually the same as the bill that has already passed the House of Representatives, a $1 billion increase for Social Security over FY 2021.

     As is normally the case, the draft report on the bill, an explanation of the bill which isn't officially enacted, contains recommendations for the Social Security Administration. These aren't binding but agencies take them seriously. Here's what's in the draft Senate bill for Social Security:

Delayed Disability Payments.—The delayed payment of Social Security Disability Insurance claims can create a significant burden on claimants. The Committee requests a briefing within 90 days of enactment on the issues that can result in delayed payments, and the polices SSA has implemented, or has considered, to streamline the disability payments’ process. 

Disability Hearing and Initial Claims Backlogs.—The Committee commends SSA for the progress it has made reducing the average disability hearing processing time and the disability hearing backlog. The Committee recommendation combined with investments in recent years will help SSA stay on schedule to eliminate the backlog in fiscal year 2022 and further reduce the average disability hearing processing time. At the same time COVID–19 has created significant challenges for SSA, and has contributed to a growing backlog of initial disability claims. The Committee recommendation will support additional hires for Disability Determination Services to help address the growing backlog and an estimated increase in initial claims. The Committee requests a briefing within 60 days of enactment, and quarterly thereafter, on its progress towards reducing initial disability claim and hearings processing times and backlogs. 

Field Offices Closures.—The Committee remains concerned about decisions to permanently close field offices and the impact on the public. The Committee encourages SSA to find an appropriate balance between in-person field office services and online services for beneficiaries. While the SSA’s Inspector General reviews decisions to close field offices, the Committee directs SSA to take every action possible to maintain operations at the offices under review. 

Occupational Information System [OIS].—The Committee is aware that SSA continues to operationalize OIS using BLS ORA data, O*NET, and other DOL-derived occupational statistics. The Committee commends SSA’s progress in implementing OIS, and directs SSA to provide an update in writing to the Committees on Appropriations and Finance within 60 days of enactment detailing the status of implementation, to what extent OIS is fully operational, a timeline for moving from the Dictionary of Occupational Titles entirely to OIS, and an action plan to accomplish said timeline.

     This is almost completely different from the House version which discusses the regulations allowing Administrative Appeals Judges to hold hearings, judicial independence of ALJs, backlogged claims processing, the attorney fee cap, telework and telephone hearings. The differences between the two draft reports will be sorted out in the legislative process so there will be one final report on the bill.

     The current continuing resolution that keeps Social Security and other agencies running ends in early December. I don't think that appropriations have been as contentious this year as most. I hope we can get something passed by that early December deadline.

More On Budget

     From CNBC:

President Joe Biden’s 2022 budget could give the Social Security Administration a $1.3 billion — or 9.7% — boost in funding. ...

The money would allow the Social Security Administration to pursue a host of improvement efforts, Social Security Administration Commissioner Andrew Saul said in the agency’s budget overview. ...

The money could help reduce the hearings backlog, bringing the annual average processing time for a decision down to 270 days in fiscal year 2022 from 386 days in fiscal year 2020 , according to the Social Security Administration’s estimates.

It could also help increase the number of initial disability claims completed by 720,000 – to 2,757,000 in fiscal year 2022 from 2,037,000 in fiscal year 2020.

The 800 number wait times could also drop to 12 minutes in 2022 from 16 minutes in 2020. ...

More than $5 billion of the proposed $14.2 billion budget would go to payroll costs for frontline employees who work at the administration’s field offices, 800 phone number and processing centers, according to the Social Security Administration.

Additionally, more than $2.7 billion would be earmarked for disability determinations, including existing staff, new hires and other expenses at state disability determination centers. The administration plans to maintain the 10% increase in staff — or 1,300 additional employees — that it took on in the 2021 fiscal year.

More than $2.1 billion would fund the modernization of the administration’s IT infrastructure.

Another $1.7 billion would pay for the expansion of the anti-fraud disability investigations program, as well as the completion of program integrity reviews.

More than $1.1 billion is slated for payroll costs for employees in the hearings division.

 In addition, $96 million would be dedicated to additional outreach for Supplemental Security Income, or SSI benefits. The goal would be to contact vulnerable people who are eligible for benefits, such as adults and children with disabilities, and the homeless.

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?

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.

    

Glitches With Some Telephone Hearings

      I don't know how widespread the problem is but I'm hearing of serious technical problems with Social Security's telephone hearings affecting several hearing offices in North Carolina and one in South Carolina. This could be just a regional thing. I hope that whatever is causing it gets fixed soon. My general impression, however, is that the audio quality on these telephone hearings has gone down over time.

I'll Have To Put On A Suit!

      I understand from the National Organization of Social Security Claimants Representatives (NOSSCR) that Social Security is hoping to offer video hearings to claimants from their homes or their attorneys' offices starting as early as November.

What A Mess

     Can Social Security start holding in person hearings prior to the release of a vaccine for Covid-19? Many disability claimants are immunocompromised because of medication they're taking. Even if everything else is reopening, it may be inadvisable for them to attend a hearing. And it's not just the claimants. Some of the Administrative Law Judges (ALJs) who hold the hearings are immunocompromised as are some of the attorneys, vocational experts and hearing reporters who attend the hearings. Many others are at additional risk from Covid-19 because of their age. I really want to get back to in person hearings but can they be held with reasonable safety for all the participants?

Another Question Or Two

     Some claimants whose cases have already been scheduled for a hearing by Social Security are declining the offer of a telephone hearing. That leaves a hole in the schedule of an Administrative Law Judge (ALJ). Are hearing offices trying to fit the cases of other claimants who haven't already been scheduled into those holes? I think the answer is generally no so my next question is, why not? 

     Let me spell out what may be obvious to many readers. I'm pointing out a possible flaw of centralized scheduling -- inflexibility.