New Regulation Proposed -- And Others Still Hanging

The Office of Management and Budget (OMB), which is part of the White House, must approve all proposed regulations before they are published in the Federal Register. The Social Security Administration just filed the following proposal with OMB:

We proposed to improve the operational efficiency of field offices by reducing the number of individuals who must be interviewed, face-to-face, in the office. Specifically, we will eliminate the requirement to re-interview individuals who became a representative payee (rep payee) for more than one beneficiary. Current policy requires a face-to-face interview for all proposed rep payees. This regulation will eliminate the requirement for that interview where an individual is already serving as a rep payee for another beneficiary.

Let me add a couple of "by the ways" which are probably more important. First, OMB cleared -- with changes -- new proposed mental impairment listings on July 9, 2008. Normally, once OMB clears a Notice of Proposed Rule-Making (NPRM), it appears in the Federal Register within a few days, but not this one. I wish I knew why. Second, another NPRM to "recognize entities as representatives, mandate the use of Form 1696 to appoint or revoke the appointment of a representative, define the roles of a principal representative and a professional representative, require professional representatives to file Form 1696 electronically, and require a representative to keep paper copies of certain documents that we may require" has been pending at OMB since May 30, 2008. The OMB's own rules require that they take action on this within 90 days. The 90 days are up tomorrow.

Woman Thrown Out Of Social Security Office Because Of T-Shirt

From the Los Angeles Daily News:

A routine trip to the Social Security office Monday turned into 30 minutes of shock, disbelief and irritation for Lapriss Gilbert, who was forced to leave the federal building by a guard who objected to her "lesbian.com" T-shirt.

As she headed for a line to pick up a Social Security card for her son, Gilbert was stopped by a guard who said her T-shirt, naming an educational and resource Web site for gay women, was offensive.

She said the guard, who works for a private company hired by the Department of Homeland Security, demanded that she leave the building or face arrest. ...

Lori Haley, a federal spokeswoman for the office of Immigration and Customs Enforcement - which is under the Homeland Security umbrella - said the guard was out of line.

"We believe that the actions of the contract security guard were inappropriate and unacceptable - we have notified his company, Paragon, of our position in the matter," Haley said.

Good News For Three More

The Atlanta Journal-Constitution reports that three disability claimants who were the subject of an article that the paper ran on backlogs at Social Security have been approved.

Good News For One Claimant

I posted a couple of weeks ago about a report on WSPA-TV in South Carolina about Social Security backlogs. WSPA's "7 On Your Side" now reports that Jennifer Satterfield, who was the subject of the report, has now been approved for Social Security disability benefits.

OK, that is one down. Now, how many hundreds of thousands of other claimants are waiting for their decisions?

Proposed Regulations On ALJ Hearings Withdrawn

The Office of Management and Budget (OMB), which is part of the White House, must approve most proposed regulations before they are published in the Federal Register. Yesterday, OMB posted a notice that proposed Social Security regulations described as follows were withdrawn.

We propose to amend several regulations and provide new regulatory language to address inefficiencies in the hearings process. The amendments include provisions clarifying that claims denied by state Disability Determination Services and other adjudicators for “failure to cooperate” are technical denials rather than medical determinations, and providing flexibility in setting the time and place of hearings. We also intend to propose new regulatory provisions that will allow ALJs to dismiss a request for a hearing where a claimant has abandoned his or her claim and to specify regulatory standards that require ALJs to clearly articulate their rationale when issuing decisions on remanded claims.

Does anyone know what happened here?

Results Of Last Week's Unscientific Poll

On the whole, what would best express your feelings on the productivity of Administrative Law Judges (ALJs)?

ALJ productivity is lousy. They should be forced to work harder. (14)	11%
ALJ productivity could be better if they worked harder. (23)	18%
ALJ productivity seems OK to me. (5)	4%
There may be a bit too much pressure on ALJs to issue decisions. (7)	6%
There is far too much pressure on ALJs to issue decisions. This has led to corners being cut and bad decisions. (18)	14%
There is a problem with ALJ productivity but it is due to a lack of adequate support staff. (58)	46%

Total Votes: 125

New Attorney Fee Regulations Proposed

Tomorrow's Federal Register will contain new proposed regulations concerning fees for attorneys and others who represent Social Security claimants. Here is the summary:

We propose to revise our rules regarding payment of representative fees to allow representatives to charge and receive a fee from third parties without requiring our authorization in certain instances. We also propose to eliminate the requirement that we authorize fees for legal guardians or court-appointed representatives who provide representational services in claims before us if a court has already authorized their fees. We are proposing these revisions to reflect changes in representatives’ business practices, and in the ways in which claimants obtain representation, and to make more efficient the way we process representative fees.

This seems aimed at helping Allsup and others who represent Social Security claimants at the behest of long term disability insurance companies.

Interesting that this will appear in the Federal Register only a few days after it cleared the Office of Management and Budget, while the new proposed mental impairment listings are still awaiting publication when they cleared the Office of Management and Budget on July 9.

Update: Here is a link to the proposed regulations as published in the Federal Register.

Data Quality Act

The Data Quality Act requires that each agency:

...issue guidelines ensuring and maximizing the quality, objectivity, utility and integrity of information ... (including statistical information) disseminated by the agency ... [and] establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines ..."

The Office of Management and Budget has issued regulations interpreting this Act.

There are many questions about the meaning of the Data Quality Act. It is far from clear that it could be used to make a court challenge to a proposed regulation. No one has even tried to use it to attack an existing regulation, such as Social Security's "grid regulations", which justify denials of disability claims based upon data that everyone concedes is ridiculously out of date and unreliable. However, the Data Quality Act certainly will be useful if, or more likely when, Social Security produces studies upon which it will finally update or replace the grid regulations.

Union Seeks More Work At Home Options

From the National Council Digest, a publication of the American Federation of Government Employees local which represents a large portion of Social Security's workforce:

Will more Social Security employees ever be able to work from home?

Witold Skwierczynski, the President of Council 220, thinks it’s a possibility and one that could be discussed during the next round of contract nego-tiations.

“If employees put that high on the list of their preferences, it will be high on the list,” he told the DIGEST.

The contract doesn’t expire until August, 2009 but the Union is already preparing for the next set of labor/management negotiations.

“It would appear that the current Commissioner of Social Security is not inclined to expand tele-work (or working at home) to employees who work in field offices and teleservice centers,” Skwierczynski said. “Hopefully a new Administra-tion which will take office in January will have a different attitude when this issue is addressed in contract negotiations next year.

Social Security Legislative Proposal On ALJs

An anonymous person posting on the ALJ (Administrative Law Judge) Discussion Forum has revealed what appears to be the text of a legislative proposal from the Social Security Administration. Here is the purported text:

A BILL

To amend the Civil Service Reform Act of 1978 to enact changes related to actions against administrative law judges.

Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

Short Title.--This Act may be cited as the "Civil Service Reform Act Amendments of 2009".

TITLE X—PROVISIONS RELATING TO ADMINISTRATIVE LAW JUDGES , SEC. 101 ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES.
(a) Section 7521 of the Civil Service Reform Act (5 U.S.C. 7521) is amended—
(1) in subsection (a), by striking "An" and
inserting "Except as provided in subsection (c), an";
(2) in subsection(b), by striking "this
section" and inserting "subsection(a)"; and
(3) by adding at the end the following new
subsections:
"(c) To ensure the integrity and impartiality of the position of administrative law judge, an agency may immediately discipline any administrative law judge appointed under section 3105 of this title without prior good cause established by the Merit System Protection Board when an administrative law judge:
"(1) is indicted or convicted of a crime for which a sentence of imprisonment may be imposed under state or Federal law;
"(2) is disbarred or suspended from the practice of law by any State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution;
"(3) is found by a state or Federal court, or by an administrative tribunal charged with enforcing discrimination laws, to have discriminated against an individual in a protected class, showed disrespect to an individual in a protected class, committed discriminatory physical or verbal conduct against a protected class member, or committed sexual harassment; or
"(4) is indicted or convicted of a misdemeanor involving fraud, theft, assault, physical violence, prostitution, solicitation, sexual misconduct, or an offense involving narcotics or is found civilly liable for engaging in one or more of these activities. "(d) An administrative law judge disciplined under subsection(c) is entitled to the protections provided employees under section 7513 of this title.",
(b) Effective Date.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to agency actions filed on or after such date.

Some of this is worthy of consideration (getting rid of an ALJ quickly if he or she is convicted of a felony sounds like a good idea), but it seems far too broad to me. Summarily firing someone just because of an indictment? Did anyone else notice what happened in the Duke Lacrosse Case? Most people who are indicted are guilty, but not all. What is "administrative tribunal charged with enforcing discrimination laws"? Could that be the Appeals Council? What does "showed disrespect" mean?