New Privacy Act Regulations

The Social Security Administration has issued new final rules concerning the Privacy Act, covering, in particular, releases of information to Social Security claimants.

From The NOSSCR Conference -- Lisa De Soto

This is my final set of notes from last week's conference of the National Organization of Social Security Claimants Representatives (NOSSCR). I have written a summary of what I thought the speaker's important points were, with some comments by me in brackets. Lisa de Soto is the head of Social Security's Office of Disability Adjudication and Review(ODAR):

• A bit of Lisa de Soto's biography was given in her introduction. See it in the post just below this. [I have no doubt that Ms. de Soto is a bright woman, but this background is just too offbeat for someone in her position. She has only been at Social Security for five years.]
• ODAR's name may be changed. [Is there anyone who likes the name ODAR?]
• Quick Disability Determinations (QDD), a part of the Disability Service Improvement plan of former Commissioner Barnhart now undergoing a trial in the Boston region, may go national soon. [But is QDD anything different than what is already done to expedite the disability claims of those who are most seriously ill?]
  
• Commissioner Astrue is interested in expanding the Listings of impairments.
• Commissioner Astrue is looking at "collapsing" the Disability Review Board (DRB), which is a part of the DSI experiment, and the Appeals Council. [Nancy Shor said that this might end up being called DRB, pronounced "drab." That acronym does not come tripping gladly off my tongue.]
• ODAR has 750,000 cases pending.
• De Soto regards 400,000 cases pending at ODAR as a normal pipeline of cases, needed to make sure the staff stays busy. [Now you can see why I am doing that survey on what sort of goal ODAR should have on how long it takes for a claimant to get a hearing. De Soto thinks that about nine months is an appropriate goal. The vast majority who have responded to my unscientific poll think that Social Security should be aiming at something below six months. De Soto's inexperience shows here, in my opinion. Until the last six years, ODAR (or the Office of Hearings and Appeals as it used to be called) seldom had a backlog of more than nine months at any time in its history which dates back more than 50 years. I found de Soto's statement disturbing.]
• Until recently, ODAR had 26,000 cases where claimants had been waiting over 1,000 days for a hearing. That number has been reduced to 18,000. [1,000 days is almost three years! This is how low things Social Security has sunk.]
• ODAR is disposing of about 550,000 requests for hearing per year.
• ODAR is getting more FTEs. [FTE means full time equivalents. Basically, she is saying she is getting to hire more employees.]
• De Soto said that the agency was looking at having personnel at Social Security look at cases in which a request for hearing had been filed to see if some could be sent back for another review at the reconsideration level. [She sounded a bit uncertain on this point, but she must have been describing "re-recon." She was not around for re-recon before, so I can understand her haziness.]
• De Soto is looking forward to a contractor providing software that will "pull" exhibits for ALJ hearings. [She is the proud owner of this plan. As I have said before, it will never work. Sit Ms. de Soto at a table. Give her a 500 page ALJ file and let her "pull" the exhibits by hand. Then ask her if she really believes a computer program can do this. Of course, she has never done this and has only a vague idea of what is involved, but she is about to spend several million dollars on the hopeless task of getting a computer to do this.]
• She believes she can pilot autopulling of exhibits nationally in the next 18 months.
• De Soto said that she has some limited ability to work employees overtime.
• De Soto wants to encourage bench decisions.
• De Soto wants to allow decision writes to use short form fully favorable decisions. [If she is talking about true "short form" fully favorable decisions --a simple form allowance with a two or three paragraph rationale that is not even sent to the claimant -- she is talking about something important, since that would really streamline the process. However, true "short form" fully favorables have not been used in so long (Can someone help me? 15-20 years?) that I am surprised that anyone even remembers them. I have trouble believing she actually meant what she seemed to be saying.]
• She wants Social Security's web site to allow secure two way communication between attorneys and ALJs.
• She would like for attorneys to be able to access their clients' files via the internet with appropriate password protection. [In my lifetime?]
• The Office of Personnel Management (OPM) is moving "full steam ahead" on a new ALJ register by the end of this calendar year. However, the tone of de Soto's voice expressed clear skepticism that this would happen. [OPM will get a chance next week to explain their delay in producing a new ALJ register when the House Social Security Subcommittee holds a hearing on the issue. Maybe that will get their attention.]
• De Soto thinks holding hearings on "unpulled" files is appropriate to help out with the backlogs. [But, she said nothing about requiring that ALJs do this.]
• The use of senior attorney decisions is under consideration. Although she could not speak for her "boss," Michael Astrue, "everyone views it favorably." [Was she recommending this before Democrats took control of Congress? Do not tell me that it does not matter who wins elections.]
• The Appeals Council has an average 220 day backlog. She did not think this is a crisis. [So how come if you call the Appeals Council you get a recording telling you not to bother them with questions about the status of your case unless it has been at the Appeals Council for more than three years?]
• She expects to see some initiatives regarding hearing backlogs within the next two weeks -- which would be by the end of next week. [Probably, the hearing scheduled for May 1 before the House Social Security Subcommittee is where these initiatives will be revealed.]
• De Soto thinks that giving claimants a 75 day notice of ALJ hearings would be a good idea. This is part of the DSI experiment, but may go national even if DSI goes down the tubes.
  

Lisa De Soto Biographical Information

The National Organization of Social Security Claimants Representatives has posted biographies of many high Social Security officials. The information was almost certainly provided by the Social Security Administration. The biography of Lisa de Soto, who heads Social Security's Office of Disability Adjudication and Review (ODAR), is quite unusual. Take a look.

Lisa de Soto is [was] SSA's General Counsel. [She is now head of ODAR.] She is an experienced attorney who has held a number of senior management positions in the private and federal sector. She specialized in procurement, bilateral and multilateral negotiations, conflict resolution and organizational change. Most recently, Lisa was the Country Director for the U.S. Agency for International Development's Office of Transition Initiatives in Nigeria. Before that, she served as the General Counsel of the U.S. Trade and Development Agency and as Deputy Assistant General Counsel for Contract and Commodity Management for the U.S. Agency for International Development in Washington, D.C. Lisa received her law degree from the University of California at Los Angeles, where she was executive editor of the UCLA-Alaska Law Review.

What a bizarre background for someone in her position! How did she end up where she is?

Another Tidbit From NOSSCR Conference -- Distinguised Service Award

The National Organization of Social Security Claimants Representatives (NOSSCR) has changed the nme of it's distinguished service award to honor the late Eileen Sweeney. Sarah Bohr of Jacksonville, FL was given the award for this year. Ms. Bohr argued and won the case of Sims v. Apfel in the Supreme Court. She has also written a treatise on Social Security law and has been president of NOSSCR.

From The NOSSCR Conference -- Glenn Sklar

Some notes from the presentation by Glenn Sklar, Social Security's Associate Commissioner for the Office of Disability Programs at the conference last week of the National Organization of Social Security Claimants Representatives (NOSSCR), with my comments in brackets:

• Commissioner Astrue is talking about holding public hearings on Social Security issues. [Social Security has held public hearings only very rarely -- but the Food and Drug Administration (FDA) does this a lot. Astrue spent a lot of time dealing with the FDA in the past.]
• Commissioner Astrue is talking about setting up various committees under the Federal Advisory Committee Act, perhaps on various Listings. [I think that the FDA uses advisory committees a lot.]
• Social Security will be publishing a Notice of Proposed Rule-Making (NPRM) to change the mental impairment Listings. There will be "significant" changes. [I have heard nothing to suggest that this should make me tense, but I am getting tense anyway.]
  
• Sklar kept saying that "we're teeing this up" or "we teed that up." He was apparently referring to placing some issue under in-house discussion. I have heard him use this unusual phrasing in the past. [Sklar must be an avid golfer.]
  

From The NOSSCR Conference -- Marty Ford

Marty Ford, the head of the Association for Retarded Citizens (ARC) and the Coalition for Citizens with Disabilities (CCD), a very important umbrella group, spoke last Thursday morning at the conference of the National Organization of Social Security Claimants Representatives (NOSCRC). Here are some points she covered and some comments by me in brackets:

• She wants to see details of Social Security's budget submission. Social Security has been releasing little more that a bottom line number. She would like to know more. [A lot of people are paying a lot more attention to Social Security's budget after the fiasco of this year's budget. There is also an increased realization that it is not just how much money Social Security is getting, although that is most important, but also how the money is being spent.]
  
• The U.S. Comptroller General held a forum two weeks ago on disability policy. She spoke. The Government Accountability Office (GAO) is under the direction of the Comptroller General. [There was no public notice of this "forum."]
• Ford had a meeting with Commissioner Astrue about two and a half weeks ago.
• Ford expects changes in Social Security's Office of Medical and Vocational Experts. [Tell us more.]
• Ford expects Social Security to work on its Listings of Impairments, with more listings added and more old listings updated.
• Ford thinks Astrue wants to "close the record" in Social Security disability cases earlier. [Nancy Shor mentioned concerns about the same thing.]
• Ford expects new Ticket to Work regulations to reach the Office of Management and Budget soon, but does not necessarily expect them to be published soon.
• Commissioner Astrue seemed concerned about the limited time he has to accomplish something as Commissioner. [Nancy Shor said much the same thing.]
  

Was SSA Involved?

From the Washington Post:

White House officials conducted 20 private briefings on Republican electoral prospects in the last midterm election for senior officials in at least 15 government agencies covered by federal restrictions on partisan political activity, a White House spokesman and other administration officials said yesterday.

The previously undisclosed briefings were part of what now appears to be a regular effort in which the White House sent senior political officials to brief top appointees in government agencies on which seats Republican candidates might win or lose, and how the election outcomes could affect the success of administration policies, the officials said.

Bush "A Little Defeatist"

From the Dow Jones Newswire:

President Bush conceded this week that he's likely to fall short of his goal of reforming the nation's Social Security program.

"That's going to be hard," Bush said in an interview Tuesday with PBS's Charlie Rose. "I wish we could get it done. I'm not sure it's going to happen... I'll keep pushing, but I don't think it's going to happen. It's a little defeatist. I don't see it happening yet is a better way to put it."

Direct Deposit Of Fees For Representing Claimants And Law Firms Representing Claimants

At a session at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) last week, I learned that 18% of fees for representing claimants are already being paid by direct deposit, which is surprising since currently only those in solo practice can qualify and most of the solos are leery of direct deposit.

We were also told that Social Security hopes eventually to allow law firms to get direct deposits for attorneys they employ and, indeed, that Social Security will recognize law firms as representing claimants. Currently, Social Security only recognizes individual attorneys and some non-attorney representatives, but no entities.

From The NOSSCR Conference -- Nancy Shor

I attended the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) in Baltimore last week. Typically, these conferences run from Wednesday afternoon until Saturday morning. Except for Thursday morning, the conferences have three different continuing legal education sessions going on in separate rooms at any given time. On Thursday morning the whole group meets in one room to hear speakers of more general interest. This was a very large room indeed in Baltimore, since there were over 1,100 people at this conference. For most people who attend, Thursday morning is the highlight of the conference.

The first speaker on Thursday morning was Nancy Shor, the executive director of NOSSCR. Here are some of the points she covered and a few of my comments in brackets:

• Commissioner Astrue will speak at the next NOSSCR Conference in St. Louis in October 2007.
• Social Security's Office of Disability Adjudication and Review (ODAR) plans to detail 5% of all Administrative Law Judges (ALJs) to Falls Church, VA, the headquarters of ODAR, to do video hearings to help clear Social Security's hearing backlog. [Why do they have to go to Falls Church? Why not avoid the extra expense of sending them to Falls Church, by letting them do this from the comfort of their own hearing offices?]
• Social Security plans to offer retired ALJs the opportunity to hold hearings to work on the backlog -- but only in Falls Church. [There seems to be a pattern here. Does someone like the idea of having all ALJs located in just one or a few offices where they can be carefully controlled -- sort of like what happened with Medicare ALJs?]
• The Columbus, OH ODAR office is refusing to process any requests for cases to be approved without a hearing -- on the record reversal is the term of art for these. [That will really help with the backlogs!]
• The no-show rate for ALJ hearings is 30%. This drives a lot of people in ODAR nuts. [I cannot blame them for being upset. No solution is likely, however.]
• Commissioner Astrue is not interested in plans that will take long. He is aware that he has only a limited time as Commissioner and that there is pressure from Congress on Social Security's backlogs.
• Shor thinks that the Federal Reviewing Officers (FedROs) currently being used in a trial of the Disability Service Improvement plan in the Boston region are not likely to be around much longer. She thinks it likely that at some point soon they will be told to finish off the cases they have already, but that no new cases will be sent to them. [So what happens to all these FedROs?]
• Commissioner Astrue has told Shor that he is thinking of ending the Disability Review Board (DRB). She thinks that the name DRB may live on as the new name for the Appeals Council. [Do Appeals Council employees want to say they work at DRB -- pronounced "drab?" ODAR is bad enough. Do not burden Social Security employees with working for "drab!" There is no need to give former Commissioner Barnhart such a silly fig leaf.]
• Shor thinks that some or all of the limitations on submission of evidence contained in the DSI plan may be adopted nationwide. [Note to ALJs and others who think this is a wonderful idea. Adopting this solves nothing. It just allows a few "outlier" ALJs (as another speaker at the NOSSCR Conference called them) to engage in oppressive behavior. A longer notice of hearing would be far more effective. If you have not tried to get medical records out of doctors and hospitals, you do not get it. The problem is much more with medical providers than with attorneys.]
• Commissioner Astrue told Shor in a recent meeting that there were a lot of regulations in Social Security's pipeline which would be coming out soon. When she asked him if this included the proposed regulations that would increase each of the age categories in Social Security's regulations by two years [which does not sound like that big a deal but which would have a devastating effect upon Social Security claimants], he said simply "No." [But will he withdraw those proposed regulations? As long as that proposal is out there, it could be adopted with no advance warning.]
• Shor described her recent meeting with Astrue as mostly a monologue by Astrue. [If you have been reading this blog regularly, that should not come as much of a surprise.