Gerry Gone?

There is a report on the CONNECT board that Martin Gerry is leaving his current position as Deputy Commissioner for Disability and Income Security Programs. The surprise may be that he tried to continue in this position after Jo Anne Barnhart's term as Commissioner of Social Security ended. Gerry was brought in by Barnhart and appeared to be her right hand man. With a new Commissioner who appears to be unimpressed with the Disability Service Improvement (DSI) plan championed by Barnhart and Gerry, it has seemed unlikely for at least a month that Gerry could survive in such a prominent position for long.

An Image From 1968

FOIA Amendments Pending

Congress is taking action on the many problems that have arisen over the years with the Freedom of Information Act (FOIA). Many agencies are essentially stonewalling the public with lengthy delays in responding to FOIA requests. Social Security may not be the worst offender, but it has had its moments. Two problems that come to mind are Social Security's refusal to provide statistics showing the reversal rates of individual Administrative Law Judges by name and Social Security's assertion that it could not find any report on the experiments it did in the past on dispensing with Appeals Council review.

The bill that has made the most progress is H.R. 1309, which has been reported out of Committee in the House of Representatives. Here is a link to the Committee report.

NAMI And ARC And Disability Policy Collaboration On Social Security Budget

Nearly identical press releases from the National Alliance on Mental Illness (NAMI), the Association for Retarded Citizens (ARC) and Disability Policy Collaboration:

People with mental illness who apply for Social Security disability benefits (SSDI) or for Supplemental Security Income (SSI) benefits are currently waiting longer and longer for decisions on eligibility. This is especially the case for claimants that are forced to file appeals to overturn a denial of benefits to which they are entitled.

As revealed in Congressional hearings and news articles, some people have lost their homes and families while they wait for decisions. Others use up all their resources and cannot afford critical medications and treatments, resulting in increased disability and even death. In some places, the wait is almost 900 days, or almost two and one-half more years!

Insufficient funding has also resulted in other reduced services, including delays in processing earnings reports and the inability to respond to reports of lost checks or answer questions from beneficiaries or the public.

The problem has reached crisis proportions and will continue to get worse for people with disabilities. The President’s budget proposal for Fiscal Year 2008 indicates that average waiting times will continue to grow, even if the Social Security Administration (SSA) is funded at the level of his request ($9.6 billion).

The solution is simple: the SSA must be given enough funding to get disability decisions made in a timely manner. As required by law, the Commissioner of Social Security submitted a budget request separate from the President’s request. This request indicates that the agency needs $10.44 billion in administrative funding for FY 2008 for its administrative expenses, known as SSA’s Limitation on Administrative Expenses (LAE). This is almost $1 billion more than the President requested.

Action on the FY 2008 budget has already begun. If SSA is going to receive the funds it needs to reduce the backlogs of disability decisions and improve other services, it is imperative that the House and Senate Budget Committees include enough funding for SSA in the FY 2008 Budget Resolution. The House and Senate Budget Committees will mark up their Budget Resolutions in early to mid March.

Action Needed

Contact your representatives in the House and Senate and urge them to contact the leadership of the House and Senate Budget Committees to encourage them to authorize additional resources for the Social Security Administration (SSA) under the Limitation on Administrative Expenses (LAE). This funding is vital to reducing the backlog of Social Security claims and speeding up response time.

It is important that every Member of Congress urge the Chairman of their respective Budget Committee to include sufficient funding in the Budget Resolution to appropriate funds for SSA’s Limitation on Administrative Expenses at the level requested by the Commissioner of SSA: $10.44 billion for FY 2008.

At Least Part Of DSI About To Be Terminated?

On January 19, Social Security solicited proposals from potential contractors to develop a "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." This was Request for Proposal SSA-RFP-07-1011.

This would be an essential part of former Commissioner Barnhart's Disability Service Improvement (DSI) plan. DSI had been criticized on the grounds that removing Appeals Council review would swamp the District Courts with Social Security civil actions. To respond to this criticism, Barnhart came up with the idea of the "profiling/screening tool" that would allow cases that would be appealed and reversed to be identified and dealt with by the Decision Review Board.

Social Security posted this late yesterday:

Request for Proposal SSA-RFP-07-1011 is hereby cancelled in its entirety.

Basis: The agency no longer requires the solicited services.

One possibility is that Social Security has decided that it can produce the necessary software in-house. Another possibility is that Social Security thinks it can somehow get by without the "profiling/screening tool" or wants to delay its procurement. The more likely possibility is that the DSI plan to terminate the Appeals Council is being abandoned which means that all of DSI is in serious trouble.

Hearing Backlog Ideas That Can Be Implemented Quickly -- Installment II

Re-start re-recon and senior attorney decisions

Re-recon was never Social Security's term, but no one remembers what term Social Security was using. Re-recon was the term most people were using. When re-recon was last used, during the Clinton Administration, once a Social Security disability claimant was denied at the reconsideration (often called "recon") level and asked for a hearing, the case was quickly examined to see if it fit into one of several categories of cases that were frequently allowed by Administrative law Judges (ALJs). If the case fit into one of these categories, such as claimants over 55 or claimants suffering from chronic mental illness, the case was diverted to one of several special units where it was reviewed to see if the claim should be approved. The review was something like a new reconsideration review, hence the term re-recon. The re-recon review was done quickly. If the claim was approved, the case was over and done with in a month or two without any ALJ ever having to look at the file. If the case could not be approved at re-recon, the file was sent on for a hearing, with no delay for the claimant. I would give a guess that re-starting re-recon could reduce the number of cases requiring ALJ review by around 5% and the vast majority of the cases would have been approved by ALJs anyway. Social Security should have statistics showing what effect this had the last time it was done. This could be implemented in about six months to a year, without the need for new regulations.

Senior attorney decisions could be implemented more quickly since those personnel are already in place. Once case files reach ODAR, which is the office where ALJs work, they are routinely reviewed to see if the case can be approved without the need for a hearing. These are called on the record reversals, or ORRs or OTRs. Usually, it is a staff person rather than an ALJ, who does the ORR initial review at ODAR. Once a staff person identifies a case that he or she thinks is a good candidate for ORR, he or she must get an ALJ to sign off on the ORR. Most of the time the ALJ does agree with the ORR, but there are some ALJs who seem to believe that virtually no case is appropriate for ORR and some other ALJs seem unwilling to take the time to review these case files, which may not be as unreasonable as it might sound when you consider ALJ workloads. In the senior attorney program, which was also employed during the Clinton Administration, Social Security's senior attorneys reviewed case files for potential ORRs, much the same as now, but instead of taking potential ORRs to an ALJ for action, the senior attorney was able to take action on his or her own to approve the claim. Like re-recon this can be criticized as paying down the backlog, but the vast majority of the time these claims would be approved by ALJs later anyway. ALJs do not like senior attorney decisions because they feel it reduces their status. Under the circumstances neither objection seems important. My estimate is that re-starting the senior attorney program would reduce the number of cases requiring ALJ hearings by 5-10%. Again, Social Security should have numbers showing what the results were the last time this was done.

The problem with restarting the senior attorney program is that the regulations which allowed senior attorney decisions have lapsed, meaning that an official re-start of the program would require new regulations which would require the approval of the Office of Management and Budget, which could take months, but the re-recon regulations are still on the books. There is nothing in those regulations that prevents the re-recon regulations from being used as authority for senior attorney decisions. Using this authority the senior attorney program could be restarted in less than three months, although, again, the complaints about it would continue for years.

Hearing Backlog Ideas That Can Be Implemented Quickly -- Installment I

The only real solution for Social Security's humongous hearing backlog is many more warm bodies to get the work done. That will happen, but not immediately. There are some things that can be done now, however that will help to some extent. I had posted these ideas earlier in a very long post. I thought I ought to split it up into bite sized chunks. Here is the first installment

Hold hearings on cases without "pulling" exhibits

When case files come into ODAR, they are a mess. There are duplicate copies of medical records. Medical records may have been requested from a single provider on several occasions, meaning that the records from that provider are spread out at several places in the file. Even when all of the records from a single provider are in one place, they may not be in chronological order. Even if they are in chronological order, the order will go forward in one set of records and backwards in another. The files are jumbles. A staff member "pulls" out the relevant medical evidence and places it in some order. The exhibits are marked with numbers. This is extremely helpful for all involved and should never be abandoned permanently. However, staff shortages have made pulling exhibits a bottleneck. Many ALJs would like to hold more hearings but cannot because files have not been "pulled."

Some hearing offices have abandoned "pulling" exhibits as a general matter. The exhibits are "pulled" only if a claim is to be denied. This is inconvenient for all concerned and can lead to confusion and misunderstandings, but there is no doubt that it improves productivity. Social Security seems to have no fixed policy on this. My opinion is that instructing ALJs to hold hearings routinely on unpulled files would improve ODAR productivity by at least 10%. This is a temporary expedient that should be abandoned quickly after the crisis is over. This could probably be implemented in less than three months, although the complaints about it would continue for years after it was over.

Buffalo News Editorial On Backlogs

The Buffalo News has an editorial on Social Security backlogs. The article is only available online to subscribers or to those who pay a fairly ridiculous fee. Here are a couple of excerpts for free:

If you have been disabled and are applying for Social Security Disability benefits, don’t count on a quick resolution of your claim. In the Buffalo and Rochester regions, once a claimant has been denied on an initial application, it may take as long as 22 to 26 months before a SSD or SSI hearing is held. ...

Congress needs to wake up to the fact that the SSD processing delays can have devastating effects upon claimants who, like our clients, dutifully paid into the Social Security system for years and are now desperately in need of benefits. People’s lives are at stake.

It’s time for our elected officials to act. It’s time to remove the hiring freeze. It’s time to gear up the review offices and speed up the hearing process. It’s time to ensure that our citizens are justly protected by the SSD safety net. For justice delayed is justice denied.