NTEU On The Future At SSA

As reported on the Association of Attorney Advisors board (and yes, that is a rather new board), this is a message from the National Treasury Employees Union (NTEU) to its Social Security attorney advisor members, who write decision for Administrative Law Judges:

March 19, 2007
Folks:
The Importance of Addressing the Backlog

Members of the Subcommittee on Social Security of the House Committee on Ways and Means have made in clear that addressing the backlog at ODAR hearing offices should be of the highest priority. This is a significant change, and one that bodes well for us. SSA is under considerable pressure to deal with the backlog, and there is little doubt that Commissioner Astrue understands the situation and is committed to effectively dealing with it. However, it is equally clear that presently hearing offices cannot effectively deal with the backlog. Congressman Michael R. McNulty, Chairman of the Social Security Subcommittee, and Congressman Sam Johnson, the ranking member of that Subcommittee, sent a letter dated March 15, 2007 to Congressmen John Spratt and Paul Ryan, the Chairman and ranking member, respectively, of the House Committee on the Budget seeking to significantly increase the appropriations to SSA. Prominently cited in that letter was the size and impact of the Hearings level backlog.
Commissioner Astrue: We have a solution to the backlog crisis that could be implemented immediately; that is cost effective; and that has a history of success – an enhanced version the original Senior Attorney Program. We can provide the Agency with an additional 100,000 legally defensible decisions a year without adversely impacting ALJ productivity or the payment rate.

DSI

Commissioner Astrue has stated that he will review DSI in detail prior to deciding which DSI programs will be retained, which will be terminated, and which will be altered. Currently, there are a number of rumors floating around that indicate that the FedRO program will be terminated. While we emphasize that we have no definitive “inside knowledge” regarding the veracity of these rumors, we believe that they may well be true. The implementation of the FedRO program has been a disappointment to many, including NTEU Chapter 224, and it may well be following the path of the Disability Redesign and HPI. In any event DSI was never intended to offer immediate relief to the Hearings level backlog.

As you will recall, we have been a supporter of the FedRO concept - as it was originally formulated in 2003. We have vigorously cautioned against significant changes from the original concept of an independent decision maker located in the field. We have been very disappointed that our warnings were ignored. Simply stated, the FedRO program that was implemented is not the FedRO program we supported. We believe that the FedRO program as presently constituted is seriously flawed, and consequently, we are not surprised by its relative lack of success despite the talent and dedication of the current FedROs. The bureaucratic reengineering of the FedRO concept may simply have been too much to overcome.

As the FedRO program rolled out, it became clear that the original concept, an independent decision maker empowered to review appeals of state agency determinations and render legally defensible decisions, had not been realized, and that the FedRO had been turned into a “federal reconsideration”. Bureaucratic red tape has all but precluded efficiency and substantially increased the cost of the program. In these times of tight budgets funding a new, expensive, and not terribly productive program may be unsustainable. On the other hand, shifting the priorities of the disability program from DSI to eliminating the hearing office backlog certainly should benefit Attorney Advisers currently in the hearing offices.

In addition to cost, we fear that operational errors have significantly limited the effectiveness of the FedRO program. The FedROs were not located locally; rather they were placed in Falls Church, depriving the program of many, many highly qualified individuals, the Agency’s attorneys in the field. The decisional independence of FedROs has been seriously eroded by the influence of the “medical units”, the “quality assurance process” and even the FedRO management structure. Additionally, FedROs have been discouraged from producing high quality, legally defensible decisions and are burdened with an inadequate decision drafting format.

The Future

We again emphasize that we have no definitive knowledge regarding the fate of the FedRO program. Commissioner Astrue could decide to continue it, alter it to enhance its viability, or terminate it. Nonetheless, we believe it is a possibility that it will be terminated. What is the impact of the potential demise of the FedRO program on Attorney Advisers in hearing offices? Obviously, the demise of this program would be a blow to those who hoped to become FedROs in the future. However, whether or not the FedRO program continues, the crisis at the hearing level must be addressed.

Can SSA afford to continue to ignore us? Will SSA continue to ignore its own history or will it finally recognize that the Senior Attorney Program was instrumental in eliminating the backlog of the 1990’s? Will SSA again recognize that we are the solution? We are doing our utmost to make SSA and Congress understand what is in their best interest and the best interest of the claimants and the public at large. Hopefully, SSA will finally listen and implement our improved version of the Senior Attorney Program.

- Jim Hill

OPM Item On ALJs in FR

The Office of Personnel Management (OPM) has posted something -- I am not sure what to call it -- in the Federal Register (FR) about the selection process for Administrative Law Judges (ALJs). The Social Security Administration employs far more ALJs than all other federal agencies combined. I have no idea where this "final rule", as OPM puts it, leaves us, but it definitely is not really the final step towards hiring more ALJs.

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

Raise the length of time a claimant has to request reconsideration or a hearing from 60 days to six months.

This is my idea. It was not tried as a means of decreasing backlogs during the Clinton Administration or at any other time, as far as I know. However, the time limit for appeals was six months until the mid-1970s. I do not know why it was changed then.

Because of the common tendency towards procrastination, going back to a six month time limit would temporarily reduce the number of reconsideration requests and requests for hearings, since it would increase the average length of time between a denial and an appeal. A good guess is that this would increase this average length of time by one to two months at each level, which would produce a temporary but dramatic reduction in the number of reconsideration requests and requests for hearings. This would be a nice breather for Social Security.

This change might also result in less churning. Many claimants are denied at the initial level, become discouraged or make an unsuccessful attempt to return to work, miss the 60 day cutoff to file an appeal and have to start all over again. It would be better for them and would mean fewer new claims for Social Security if they could just file an appeal.

However, this regulatory change does encourage procrastination and that is not a good thing. I would not suggest it if there were not such a backlog.

This change could be done in three to six months, assuming there is no unusual holdup at the Office of Management and Budget, which has to approve changes in regulations -- and this one takes a change in regulations.

Proposed Regulation Change

From today's Federal Register:

We propose to revise the threshold billing amount that triggers annual onsite reviews of medical providers who conduct consultative examinations (CEs) for our disability programs under titles II and XVI of the Social Security Act (the Act). The proposed revision would raise the threshold amount to reflect the increase in billing amounts since we first established the threshold amount in 1991. This proposed revision is intended to restore the level of oversight originally required by our rules.

A Dead Man's Social Security Number

From the Rapid City Journal:

Steven Litz, no age listed, Rapid City, faces federal charges of false representation of Social Security number and false statement in application for disability benefits after an investigation by the Social Security Administration.

According to federal court documents, Litz is accused of using a Social Security number that was not his to apply for disability benefits on May 18, 2005, in Rapid City. Litz allegedly claimed his name was Ronald Vincent Amen. Litz applied for more than $1,000 worth of benefits, documents show.

More Personnel Changes

The information below was posted on the CONNECT board. It appears to be an e-mail sent to Social Security personnel. I am unable to evaluate what this might mean on a policy basis. I can say that it is a major promotion for Andrew Biggs, whose nomination to become Deputy Commissioner at Social Security was recently rejected by the Senate. Biggs is a huge proponent of Social Security privatization. There has been no previous sign that Biggs has any real interest in the day to day policy issues faced by Social Security, particularly in the area of Social Security's disability programs. The information about Jim Winn leaving the Disability Review Board (DRB) to return to his old job suggests that the DRB may not be around much longer.

The following Senior Executive Service assignments are effective immediately:

In the Office of the Commissioner, Office of Executive Operations, David A. Rust will be appointed as the Executive Secretary. David previously served as the Agency’s Associate Commissioner for Disability and has been with the Department of Agriculture since he left SSA in 1989.

In the Office of Policy, Andrew Biggs will be appointed as the Deputy Commissioner for Policy. In addition to his new assignment and to ensure continuity within the organization, Dr. Biggs will continue in his former capacity as the Acting Associate Commissioner for Retirement Policy until I name a replacement. Larry Love will resume his full-time responsibilities as Counselor to the Commissioner.

Manny Vaz, Regional Commissioner in Boston, will replace Martin Gerry as Deputy Commissioner for Disability and Income Security Programs on an Acting basis for the next several months. During this interim period, Susan Harding will serve as the Acting Regional Commissioner in Boston.

Jim Winn, Associate General Counsel for Program Law, who most recently has been serving as the Acting Executive Director for the Disability Review Board, will return to his position in the Office of the General Counsel.

DSI Prospects Poll

Free Web poll for your Web site - freepolls.com

More Job Openings In Woodlawn

This may be coincidental, but there are now job openings at Social Security's central offices in Woodlawn, MD for Associate Commissioner for Research, Evaluation and Statistics and Deputy Associate Commissioner for Personnel. Some of this may be ordinary turnover, but it sounds as if the new Commissioner is making personnel changes.

What I would wonder about if I worked in Woodlawn is whether Larry Dye's new role as Social Security's Liaison to the White House is to pack Social Security with Bush loyalists. If so, there may be little job security at the upper reaches of Social Security.