Hearing On Social Security Hearing Office Performance

An announcement from the House Social Security Subcommittee:

Congressman Michael R. McNulty (D-NY), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee will hold a hearing on the performance of the Social Security Administration’s (SSA’s) appeals hearing offices. The hearing will take place on Tuesday, September 16, 2008, in room B-318 Rayburn House Office Building, beginning at 10:00 a.m.

In view of the limited time available to hear witnesses, oral testimony at this hearing will be from invited witnesses only. However, any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by the Subcommittee and for inclusion in the printed record of the hearing.

BACKGROUND

Over the past several years, SSA’s disability claims backlogs have grown to unprecedented levels, with more than 1.3 million Americans currently awaiting a decision regarding their claim. Backlogs are particularly severe for the more than 765,000 Americans who have had their cases denied at an earlier stage of the process and have requested a hearing before an Administrative Law Judge (ALJ). These individuals now wait an average of 532 days for a decision on their appeal. Recognizing the central role that prolonged underfunding and staffing shortfalls have played in the development of these backlogs, in combination with rising workloads, last year Congress provided SSA with $150 million more in administrative funding than the President had requested – the first such increase in ten years.

The Subcommittee has examined the backlog crisis from a number of perspectives, including the need for more administrative funding and adequate staffing, the agency’s ability to hire more ALJs to hear disability appeals, proposals to improve the disability determination process, and initiatives that SSA has undertaken to reduce the backlog. This hearing will focus on the performance of SSA’s hearing offices and SSA’s overall management of these offices.

SSA’s hearing process is an important one for claimants, as new medical and other available evidence is added to their claim and they have the opportunity to meet face-to-face with the judge who is deciding their claim. Approximately two-thirds of those who appeal to the ALJ level are awarded benefits. However, the process is very labor intensive for SSA, typically requiring clerical staff to prepare the case file, obtain evidence and schedule the hearing with all necessary experts and other participants; ALJs to review the case, conduct the hearing, and make a decision; and attorneys or paralegals to draft the decision and accompanying legal rationale for it, based on the judge’s instructions.

According to a recent report from SSA’s Inspector General (IG), the productivity of SSA’s hearing process has improved in recent years. In 2005, SSA produced 421 dispositions per ALJ. By 2007, productivity had increased by 13 percent, to 474 dispositions per ALJ. However, hearing office performance varies significantly between offices. The IG found that productivity was often hindered by a lack of hearing office support staff, a conclusion the IG had also reached in a March 2005 report. Interviews with ALJs and hearing office staff also identified other factors that could affect productivity, including the use of a number of techniques to promote speedier processing (such as spending less time reviewing the case and conducting the hearing). Finally, the IG found that a small number of ALJs – approximately 1 percent – processed fewer than 200 cases per year even though they were employed as full-time adjudicators. At the same time, the IG reported that some judges – about 2 percent – issued more than 1,000 decisions in a year. This could raise concerns about the quality of these decisions.

As concern about the backlog has grown, SSA has undertaken a number of initiatives to improve the productivity of its hearing offices, including hiring more ALJs and support staff; reinstituting the Senior Attorney adjudication program to allow judges to focus on more difficult cases; developing automation improvements; and asking judges to issue 500-700 decisions per year. However, concerns have been expressed that the agency’s plans for hiring support staff are not sufficient to address the large hearings backlog, that planned automation improvements will not meet expectations, and that an overemphasis on speed could degrade quality or compromise program integrity.

In announcing the hearing, Chairman McNulty said, “Earlier hearings have demonstrated that prolonged underfunding has resulted in the loss of staff needed to process disability cases at the Social Security Administration. This has led to an unprecedented backlog of unprocessed claims and untold suffering. The agency must have the resources it needs to eliminate this unconscionable backlog. At the same time, we must ensure that SSA uses these resources as effectively as possible. This hearing will examine SSA’s management of its hearing offices, and explore measures that can be taken to improve productivity without compromising the right of claimants to a fair and impartial decision on their case.”

FOCUS OF THE HEARING

The hearing will focus on the performance of SSA’s hearing offices, factors that affect productivity, initiatives SSA is taking to increase efficiency and productivity, and other approaches to improving productivity without compromising the quality and impartiality of decision-making or the due process rights of claimants.

Raleigh Field Office Evacuated

The Raleigh, NC Social Security field office was evacuated this morning due to a powdery white substance found enclosed in an envelope. Probably nothing to it, but they have to be careful.

Average Patient On Liver Transplant List Doesn't Come Close To Meeting Listing

The Social Security Administration adopted new digestive system listings last October. The liver is part of the digestive system and is covered in the new listings. One of the ways to meet the liver listings is something labeled as the "SSA CLD" (Social Security Administration Chronic Liver Disease) score. This is computed using a complicated formula. The SSA CLD formula is the same as what is generally known in medicine as the MELD (Model for End-Stage Liver Disease) score.

I have wondered why Social Security wanted to avoid using the term MELD. My guess is that they did not want people thinking that one had to be in "End-Stage Liver Disease" to meet the listing. That just sounds so extreme.

The listing requires a SSA CLD (or MELD) score of 22 or higher to meet the listing. A recent issue of the New England Journal of Medicine has an article on liver disease. You can only read the abstract online, but the whole article includes a table showing that the median MELD score for those on the waiting list for a liver transplant is 15. One short quote from the article: "On average, the risk of death increased by 21% ... per unit increase in the MELD score." Not only must one be in end-stage liver disease to meet the listing on the MELD score; one must be well into end-stage liver disease and at great risk of death.

Where did the listing requirement of a MELD score of 22 come from? Why not 20 or 18 or 15? Did someone try to figure out how many more people would qualify if the MELD score requirement were lower and how much that would cost? Did someone try to figure out how many more expensive liver transplants Medicare would have to pay for if a lower MELD score was used? As it is now, people in end stage liver disease under age 65 are unlikely to live long enough to qualify for Medicare. Was the Office of Management and Budget involved in setting the MELD score requirement? Was someone thinking "Oh, the hell with them. Most of them are alcoholics anyway." You have to wonder how comfortable the physicans involved in creating this listing are with the requirement of a MELD score of 22.

Poll

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New Edition Of My Book Available

West Publishing has released the 2008 edition of my book, Social Security Disability Practice. You can take a look at the table of contents online.

Debit Cards

In case you were wondering what the new debit cards through which Social Security beneficiaries can receive their benefits look like, here you go.

Updated Fee Payment Stats

The Social Security Administration has posted updated data on payments of fees to attorneys and others for representing Social Security claimants. Since the attorney and client are paid at about the same time, this is a useful analog for speedups and slowdowns in benefit payments to claimants. You can certainly see evidence in these numbers that these payments are far from steady.

Payment delays are tough for claimants. The ups and downs also make for a stomach churning ride for those who represent claimants. If you work at Social Security and have ever thought about leaving to represent Social Security claimants, take a close look at these numbers before giving up that regular paycheck. This is one of the reasons that very few Social Security Administration employees leave the agency to represent claimants.

Fee Payments
Month/Year	Volume	Amount
Jan-08	20,559	$75,368,163.45
Feb-08	26,570	$95,228,284.32
Mar-08	23,088	$83,166,027.02
Apr-08	27,296	$98,616,579.78
May-08	29,305	$104,283,373.35
June-08	25,243	$89,786,459.83
July-08	22,238	$77,346,266.77
Aug-08	33,834	$120,819,791.05

Blame The ALJs

Public Radio's Marketplace program ran a piece yesterday on Social Security's backlogs. Commissioner Astrue was interviewed. Listen to the piece online. Here are the parts of the transcript of the piece with Astrue's comments:

Judge Robert Habermann hears disability cases in Roanoke, Va., and is an officer in the judge's union. He says the Social Security Administration is pressuring judges to just ram through positive decisions.

ROBERT HABERMANN: It solves a lot of problems by just paying the case. The individual claimant is out of the system. In other words, there are no appeals.

Haberman says those positive decisions could stack up to billions of dollars in wasted taxpayer money.

MICHAEL ASTRUE: Well I've heard that as a union line, but that's just not true. ...

MICHAEL ASTRUE: We've had judges who decided no cases in a year. And we've had judges that have fairly chronically decided double digits -- 40 cases a year.

In fairness, the transcript makes it clear that Astrue also told the reporter that Social Security needed more money to hire more Administrative Law Judges (ALJs), but it appears that Astrue gave about equal weight to more money and ALJ productivity.

First Impressions

I have started looking at the proposed new regulations on representation of claimants. My first impression is generally unfavorable.

The most important thing I was looking for in the proposal is simplification of the process when an attorney leaves my firm and is replaced by another attorney. Currently, this process requires the filing of several forms which Social Security often fails to enter into its computer system. It is a mess. This proposal will not help. The same forms must be filed with the same potential for problems. If anything, the process could become more problematic. Here is Social Security's summary:

Any entity seeking direct payment of fees must maintain, and provide to us upon our request, a signed statement from each of the entity’s attorneys and eligible non-attorneys who represent claimants before us. The statement must state that the attorney or eligible non-attorney is performing representational services on behalf of the entity. The statement must also assert that any fees should be paid directly to the entity and that the representatives receive any compensation directly from the entity. Any request for direct payment of fees made by an entity must include an attestation that the entity is in possession of this signed statement from each attorney or eligible nonattorney who has performed any representational services for the claim in question.

This raises the specter of a disgruntled departing attorney withdrawing his or her "signed statement" while asserting that he or she worked on each of the firm's cases, whether that was true or not. If that happened, the firm would become ineligible for direct payment of fees for any of its cases. This would be a nightmare. There would be considerable potential for blackmail by a disgruntled departing attorney.

Without much more clarification, I would not register my firm as an "entity" with Social Security.

Here is an interesting nugget that I do support:

We propose to revise our list of prohibited actions to include three additional items: refusing to comply with any of our regulations, violating any section of the Act for which a criminal or civil monetary penalty is prescribed, and assisting another individual whom we have suspended or disqualified.

Update: Here is the link to the NPRM in the Federal Register.

Proposed Regulations On Representatives Coming Monday -- Read Them Today

The Social Security Administration has filed a 99 page Notice of Proposed Rule-Making (NPRM) to be published in the Federal Register on Monday, but you can read it today. Here is Social Security's brief summary:

We are proposing several revisions to our rules on representation of parties. These proposed rules would recognize entities as representatives, define the concept of a principal representative, and authorize principal representatives to sign and file a claim for benefits on behalf of a claimant. These proposed rules would also mandate the use of Form SSA-1696 to appoint, revoke, or withdraw an appointment of a representative, and to waive a fee or direct payment of the fee. We propose to define the concept of a professional representative and require professional representatives to use our electronic services as they become available, including requiring professional representatives to submit certain requests for reconsideration or a hearing before an administrative law judge (ALJ) electronically. Finally, we propose to require representatives to keep paper copies of certain documents that we may require. We are proposing these revisions to reflect changes in representatives’ business practices and to improve our efficiency by enhancing use of the Internet.

Note that this is a proposal. The public can comment on the proposal. Social Security is supposed to consider the public comments. As a practical matter, this proposal cannot become official regulations until there is a new President. The new President, through the Office of Management and Budget, can refuse to approve the proposed regulations or demand changes as a condition for approval, not that I expect this proposal to be that controversial. I have not had time to study the proposal.

Update: Here is the link to the NPRM in the Federal Register.