Don't Know How To Make The DRB Work? -- Hire A Contractor

Under the Disability Service Improvement (DSI) experiment currently underway in Social Security's Boston Region, the Appeals Council is being replaced by a Disability Review Board (DRB). Claimants will no longer be able to request review by the Appeals Council after they are denied by an Administrative Law Judge (ALJ). This plan has been criticized on the grounds that it would lead to a dramatic rise in Social Security cases being appealed to the Federal Courts. Social Security's response has been that the agency would avoid such a dramatic effect upon the Federal Courts by having the DRB identify cases that are likely to be appealed to Federal Court and then reversed or remanded. The DRB would correct errors in those decisions without the claimant requesting review. When questions have been raised about how this could be done, Social Security's responses have been vague.

We now know why Social Security was so vague on how the DRB would prevent a huge increase in Federal Court filings in Social Security cases. They had nothing more than a vague notion of how they could do this. Social Security has issued a "presolicitation notice" indicating that the agency is seeking a contractor to develop a computer system to screen ALJ decisions for cases that are likely to be appealed to Federal Court and then reversed or remanded.

It is entirely possible that a contractor can develop a system that will work. It is also entirely possible that this will fail miserably, most likely because Social Security's databases do not contain enough data fields to predict results in such a complex situation and it would be too expensive to add those data fields. Even though there is no proof that this computer system will work, Social Security has already enshrined the DRB in regulations. All Social Security can do now is hope a contractor can pull a rabbit out of a hat.

Here is the text of the notice:

The purpose of this notice is to advise interested parties that the Social Security Administration (SSA) intends to release a Requests for Proposals (RFP) for the services of a contractor to develop an automated, Section 508 compliant, profiling/screening tool (software) for identifying Administrative Law Judge (ALJ) disability decisions to FedBizOpps and will upload the solicitation document when issued.

The Social Security Administration (SSA) has a requirement for the services of a contractor to develop an automated, Section 508 compliant*, profiling/screening tool (software) for identifying Administrative Law Judge (ALJ) disability decisions that are likely to be appealed to federal district court and remanded or reversed by the court. The contractor may also recommend the purchase and/or modification of an existing Commercial Off-the-Shelf (COTS) software package for the profiling/screening tool if an existing product can be identified.

On March 31, 2006, SSA published the final rules establishing a new disability determination and administrative appeals process effective August 1, 2006. Under the new rules SSA is gradually phasing out the Appeals Council?s review of disability claims and replacing it with a review by a Decision Review Board (DRB). The DRB will focus on identifying decision-making errors as well as policies and procedures that will improve decision-making at all levels of the disability determination process.

SSA intends to select ALJ decisions for review by the DRB in several different ways, including the use of computer-based predictive screening tools. It is envisioned that a sophisticated computer-based profiling/screening tool could be developed to help identify unfavorable ALJ decisions that contain characteristics associated with federal district court appeals and remands or reversals. The profiling model will be developed using data recorded at the time of the initial level determination, ALJ decision, Appeals Council review, and the court action. This information includes the applicant?s age, education years, primary impairment, reason for the court remand, etc. The methods for selecting cases for DRB review are expected to evolve over time as more data are available and SSA gains more experience and knowledge in the use of computer-based tools. Any software will make use of current SSA databases and systems architecture already available, if applicable.

COLAs Announcement

You have already heard about the costs of living adjustment (COLA) for Social Security benefits, but that is not the only COLA that Social Security computes. The agency has published in the Federal Register the full list of COLAs for 2007. Here is a summary:

1) A 3.3 percent cost-of-living increase in Social Security benefits under title II of the Social Security Act (the Act), effective for December 2006;
(2) An increase in the Federal Supplemental Security Income (SSI) monthly benefit amounts under title XVI of the Act for 2007 to $623 for an eligible individual, $934 for an eligible individual with an eligible spouse, and $312 for an essential person;
(3) The student earned income exclusion to be $1,510 per month in 2007 but not more than $6,100 in all of 2007;
(4) The dollar fee limit for services performed as a representative payee to be $34 per month ($66 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2007;
(5) The dollar limit on the administrative-cost assessment charged to attorneys representing claimants to be $77 in 2007;
(6) The national average wage index for 2005 to be $36,952.94;
(7) The Old-Age, Survivors, and Disability Insurance (OASDI) contribution and benefit base to be $97,500 for remuneration paid in 2007 and self-employment income earned in taxable year beginning in 2007;
(8) The monthly exempt amounts under the Social Security retirement earnings test for taxable years ending in calendar year 2007 to be $1,080 and $2,870;
(9) The dollar amounts (``bend points'') used in the primary insurance amount benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2007 to be $680 and $4,100;
(10) The dollar amounts (``bend points'') used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2007 to be $869, $1,255, and $1,636;
(11) The amount of taxable earnings a person must have to be credited with a quarter of coverage in 2007 to be $1,000;
(12) The ``old-law'' contribution and benefit base to be $72,600 for 2007;
(13) The monthly amount deemed to constitute substantial gainful activity for statutorily blind individuals in 2007 to be $1,500, and the corresponding amount for non-blind disabled persons to be $900;
(14) The earnings threshold establishing a month as a part of a trial work period to be $640 for 2007; and
(15) Coverage thresholds for 2007 to be $1,500 for domestic workers and $1,300 for election workers.

Everyone's pay went up except for attorneys who represent Social Security claimants. Their pay will go down by $2 a case.

Candidates Oppose Private Accounts

From the American Association of Retired Persons (AARP):

President Bush's plan for private accounts as part of the Social Security program is a dead issue, if a recent survey of 45 heated Congressional races is an indicator. It found only one candidate out of 20 in 10 of the closest Senate races indicated support. It was even worse in 35 of the top House races where only two candidates voiced support for private accounts. An earlier election poll by AARP found 72 percent of older American voters also oppose the idea.

And yet, President Bush is preparing a new push for private accounts after the election?

Bush Still Believes In Social Security Privatization

Bloomberg reports that even today, with every sign of impending electoral disaster for his party, President Bush still intends to pursue his vision of Social Security reform as one of his top priorities after the election.

And it is not just the print media that Bush is talking to about privatization. Here is a video of Bush talking about Social Security phaseout. It is hard not to see all of Bush's recent Social Security appointees as being part of a plan for achieving this goal.

Recess Appointment To Social Security Advisory Board

President Bush has used a recess appointment to get Jeffrey R. Brown on the Social Security Advisory Board. Brown is well known as a proponent of Social Security privatization. There was a hearing quite some time ago on Brown's nomination. Here is what Senator Max Baucus, the ranking Democrat on the Finance Committee had to say at the time::

Members of the Board are chosen to serve on the Advisory Board based on their expertise in the field of Social Security. In fact, the authorizing statute requires members of the Board to be chosen based on their " and experience." Jeffrey Brown meets this high standard. He is a professor of finance at the University of Illinois. And he is a former senior economist at the White House Council of Economic Advisors. Mr. Brown is a widely published scholar in the field of Social Security privatization. His work includes articles in academic journals, and op-eds in major newspapers advocating a privatized Social Security system. I do not agree at all with the privatization policies he supports. But I have tremendous respect for his intellect and experience. He has the ability to be a valuable member of the board. I am, however, troubled that Mr. Brown is not accompanied by a Democratic nominee today. A Democratic slot remains open on the board. And in order to retain balance on the board, the Democratic position needs to be filled along with the Republican slot that the President has nominated Mr. Brown to fill. In nominating an individual to fill the Democratic slot on the Social Security Advisory Board, the White House must consult with Democrats in Congress. There are many highly qualified individuals ready to serve on the board in the open Democratic slot. I look forward to working with the White House and the Senate Democratic leader to fill that position as soon as possible.

Thus, it appears that Brown was not confirmed because of President Bush's refusal to appoint a Democrat who opposed privatization to the Social Security Advisory Board.

Why would Bush give Brown a recess appointment now? On the face, it makes little sense. A recess appointment is only good until the end of the Congress. This Congress ends in less than three months. Why bother with a recess appointment now? The only guess that comes to mind to explain this recess appointment is that a near majority on the Social Security Advisory Board wants to issue a report strongly endorsing privatization, but lack the votes. Brown may be needed on the Board to issue the report. This is only speculation, but it is not speculation that the President intends to pursue privatization again in 2007. This has been loudly trumpeted. It is hard for anyone to take it seriously, but Bush appears to be determined to go back at it in 2007. Given that, it is hard not to interpret anything President Bush does that concerns Social Security as being connected with his desire to privatize.

This recess appointment can only make Senators look harder at Michael Astrue's nomination as Commissioner of Social Security.

Delays In Utah

The Salt Lake City Tribune reports on Don Uchida, the director of Utah's disability determination agency. Uchida is unhappy with his agency's performance. He blames it, in part, on a 30% annual turnover of employees. The interesting part is that Uchida had to go through the process of filing a claim for disability benefits for his adult daughter who is autistic. He found it tough going.

Social Security Beneficiaries By County

Social Security has published statistics showing the number of Social Security beneficiaries by type and by county of residence. Sound like an enormous bore? Maybe, but it is also vital information for an attorney who wants to figure out where potential Social Security disability clients might live -- and no, you cannot figure that out just by considering population. Wealthy, populous counties may have few claimants, while smaller, poorer counties may abound with Social Security disability claimants.

Baltimore Sun Discovers Social Security Budget Problem

You would hardly know that Social Security's headquarters are in Baltimore if your only source of news was the Baltimore Sun. Despite the fact that Social Security has to be one of Baltimore's larger employers, the Baltimore Sun hardly ever mentions the agency. Although the newspaper has not yet discovered that President Bush has nominated Michael Astrue to be the new Social Security Commissioner, the newspaper has finally discovered that Social Security has a budget problem. Of course, the article does not get it right, saying that the agency is only hiring one new employee for each three who departs, when SSA is actually hiring just about no new employees. The article also suggests that the threat of furloughing SSA employees is merely a negotiating ploy to get more money, when it is a stark necessity, and that SSA faces budget problems due to its own inefficiency, when the agency has cut its work force by about 33% over the last 20 years while its workload has soared.