From The NOSSCR Conference -- Nancy Shor

I attended the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) in Baltimore last week. Typically, these conferences run from Wednesday afternoon until Saturday morning. Except for Thursday morning, the conferences have three different continuing legal education sessions going on in separate rooms at any given time. On Thursday morning the whole group meets in one room to hear speakers of more general interest. This was a very large room indeed in Baltimore, since there were over 1,100 people at this conference. For most people who attend, Thursday morning is the highlight of the conference.

The first speaker on Thursday morning was Nancy Shor, the executive director of NOSSCR. Here are some of the points she covered and a few of my comments in brackets:

• Commissioner Astrue will speak at the next NOSSCR Conference in St. Louis in October 2007.
• Social Security's Office of Disability Adjudication and Review (ODAR) plans to detail 5% of all Administrative Law Judges (ALJs) to Falls Church, VA, the headquarters of ODAR, to do video hearings to help clear Social Security's hearing backlog. [Why do they have to go to Falls Church? Why not avoid the extra expense of sending them to Falls Church, by letting them do this from the comfort of their own hearing offices?]
• Social Security plans to offer retired ALJs the opportunity to hold hearings to work on the backlog -- but only in Falls Church. [There seems to be a pattern here. Does someone like the idea of having all ALJs located in just one or a few offices where they can be carefully controlled -- sort of like what happened with Medicare ALJs?]
• The Columbus, OH ODAR office is refusing to process any requests for cases to be approved without a hearing -- on the record reversal is the term of art for these. [That will really help with the backlogs!]
• The no-show rate for ALJ hearings is 30%. This drives a lot of people in ODAR nuts. [I cannot blame them for being upset. No solution is likely, however.]
• Commissioner Astrue is not interested in plans that will take long. He is aware that he has only a limited time as Commissioner and that there is pressure from Congress on Social Security's backlogs.
• Shor thinks that the Federal Reviewing Officers (FedROs) currently being used in a trial of the Disability Service Improvement plan in the Boston region are not likely to be around much longer. She thinks it likely that at some point soon they will be told to finish off the cases they have already, but that no new cases will be sent to them. [So what happens to all these FedROs?]
• Commissioner Astrue has told Shor that he is thinking of ending the Disability Review Board (DRB). She thinks that the name DRB may live on as the new name for the Appeals Council. [Do Appeals Council employees want to say they work at DRB -- pronounced "drab?" ODAR is bad enough. Do not burden Social Security employees with working for "drab!" There is no need to give former Commissioner Barnhart such a silly fig leaf.]
• Shor thinks that some or all of the limitations on submission of evidence contained in the DSI plan may be adopted nationwide. [Note to ALJs and others who think this is a wonderful idea. Adopting this solves nothing. It just allows a few "outlier" ALJs (as another speaker at the NOSSCR Conference called them) to engage in oppressive behavior. A longer notice of hearing would be far more effective. If you have not tried to get medical records out of doctors and hospitals, you do not get it. The problem is much more with medical providers than with attorneys.]
• Commissioner Astrue told Shor in a recent meeting that there were a lot of regulations in Social Security's pipeline which would be coming out soon. When she asked him if this included the proposed regulations that would increase each of the age categories in Social Security's regulations by two years [which does not sound like that big a deal but which would have a devastating effect upon Social Security claimants], he said simply "No." [But will he withdraw those proposed regulations? As long as that proposal is out there, it could be adopted with no advance warning.]
• Shor described her recent meeting with Astrue as mostly a monologue by Astrue. [If you have been reading this blog regularly, that should not come as much of a surprise.

An Interesting Little Tidbit

There was a session at the NOSSCR Conference on the new requirements for attorneys and non-attorney representatives who are eligible for withholding of fees to register with Social Security so that they will receive 1099s showing those fees. We were told that 7,349 attorneys and non-attorney representatives had signed up since the program started a few months ago. It is mandatory only for cases newly taken on since the beginning of the year. I had little idea of what the universe was of attorneys and others who represent Social Security claimants.

CDR Moratorium Lifted

David Traver at the CONNECT Board reports that the Emergency Message below went out recently. I have no idea why anyone at Social Security thought that this could or should be kept secret.

Identification Number EM-07028 SEN

Effective Date: 04/19/2007

Intended Audience: All RCs/CDPs/ARCs/ADs/FOs/TSCs/
OCO-CSTs/PSCs/ODO/OIO/DPBs/OSOS/ODD/OTS/OAS/OQAPA

Originating Office: DCO OPSOS

Title: Medical Continuing Disability Review (CDR) Moratorium Update

Type: EM - Emergency Messages

Program: Title II (RSI); Title XVI (SSI); Disability; All Programs
Link To Reference: DI 13005.001
DI 40502.001G.
EM-06071 SEN
EM-05075

SENSITIVE - NOT TO BE SHARED WITH THE PUBLIC
Retention Date: October 31, 2007

This Emergency Message (EM) obsoletes EM-06071 SEN and provides additional information about the CDR moratorium.

Effective immediately, the CDR moratorium is lifted. Regional guidance will be provided concerning the numbers and flow of cases to the DDSs according to each state's needs. For workload monitoring purposes, it is very important for field offices (FOs) to pay close attention to staying within the established quotas. Once this information has been provided from the RO, FOs may release and DDSs may process all types of CDRs, based on Regional targets. Effective immediately, FOs should discontinue using the CDR Moratorium Exception Flag.

FO Instructions
Offices should adhere to the following CDR priority processing order:

· Follow regional directives on targeting specific CDR types.
· Age 18 medical CDRs that were selected September 1, 2006 or earlier. (We are required by law to review these CDRs timely; therefore, it is very important for FOs to continue to process these CDRs.)

· All other CDRs on a normal first-in-first-out (i.e., greatest overall age) basis.

NOTE: FOs should continue to hold all Certified Electronic Folder (CEF) CDRs, including Age 18 redetermination (CEF) CDRs, as per the instructions in EM-05075 SEN .

PC Instructions
The PCs may now initiate the previously held (and newly determined) "DO CDR" cases. These cases should be initiated on the Disability Control File (DCF) and released to the FOs.

Direct all program-related and technical questions to your RO support staff or PC OA staff. RO support staff or PC OA staff may refer questions or problems to their Central Office contacts.

May 1 Social Security Subcommittee Hearing

Announcement from 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 to examine the Social Security Administration’s (SSA’s) ability to hire Administrative Law Judges (ALJs) to address the growing disability claims backlog. The hearing will take place on May 1, 2007 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:

Nationwide, more than 700,000 people are currently awaiting hearings on their Social Security and Supplemental Security Income disability claims appeals. Because of this large backlog, severely disabled individuals often must wait years to get the benefits they need for basic economic survival.

A significant contributor to this backlog is a shortage of SSA ALJs to conduct the hearings. According to the Social Security Advisory Board, from 1999 to 2005 the number of disability claims hearings pending nationwide more than doubled, while the number of ALJs on duty remained about the same.

A number of federal agencies employ ALJs, but SSA is the largest employer. The Office of Personnel Management (OPM) is responsible for developing qualification standards for ALJs, conducting examinations for ALJ candidates, and developing a register of candidates from which agencies can hire.

The Social Security Administration’s hiring of ALJs in recent years has been limited by several factors. First, administrative funding shortfalls have limited SSA’s ability to hire across all positions, including ALJs. In addition, litigation filed in 1997 disrupted federal hiring of ALJs for several years. In August 2003, OPM announced that it would develop a new examination for ALJ candidates. Until this examination was developed and a new register created, SSA and other federal agencies could hire only from a register from the late 1990s. OPM issued new final regulations on the ALJ program in March, 2007, but a new examination has not yet been announced. Therefore, a new and up-to-date ALJ register is not yet available for SSA to use in hiring.

Focus of the hearing:

The hearing will focus on the importance of having an adequate number of ALJs to address the growing disability claims backlog; barriers to SSA’s hiring of ALJs; and the steps that must be taken to remove these barriers. In particular, the Subcommittee will explore the need to develop an updated register of ALJ candidates, the steps involved in this process, and the time frames in which it will occur.

In announcing the hearing, Chairman McNulty stated, “The Social Security Administration needs Administrative Law Judges to help clear the backlog, so that persons applying for disability benefits can get the support they need as soon as possible. This Subcommittee is committed to ensuring that SSA has the resources to hire ALJs and that relevant government agencies move rapidly to eliminate other barriers to ALJ hiring.”

When To Expect News From Commissioner Astrue

Clearly, Commissioner Astrue is working on some plan to address Social Security's hearing backlog situation. When can we expect this? Here are the clues I have heard.

Astrue's confirmation hearing was on January 24, 2007. At the time, he was asked how soon he would be able to come back for another hearing to talk about his plans for Social Security's backlogs. He said three months. I do not think it was ever specified whether this was three months from that date or three months after the date he assumed office -- which was February 12.

On February 14 Astrue appeared before the Social Security Subcommittee of the House Ways and Means Committee. They clearly wanted to hear from him again soon, although no time frame was mentioned.

Representatives of the National Council of Social Security Management Associations (NCSSMA) met with Astrue on March 1. At the time, he told them that Congress expected him to report back to them with ideas by April 15.

Nancy Shor, the executive director of the National Organization of Social Security Claimants Representatives (NOSSCR) said at the NOSSCR Conference last week that she had met with the Commissioner the week before and that he had talked about having some plan within a week -- which would have been last week, if you are following the timeline in this sentence..

Lisa DeSoto, the head of Social Security's Office of Disability Adjudication and Review (ODAR) mentioned at the NOSSCR conference that she expected Commissioner Astrue to have a plan within a couple of weeks, which would mean next week.

Thus far, neither the Senate Finance Committee nor the House Social Security Subcommittee has scheduled another appearance for Astrue. However, it appears that we should expect each to be scheduling a hearing soon, almost certainly before the middle of May. That is when Astrue is likely to unveil his plan. However, if you want to see a preview, take a look below at my summary of the highlights from the NOSSCR conference. I will give more detailed summaries from that conference when I have time.

2007 Trustees Report Press Release

News Release

Social Security Board of Trustees Issues Annual Report

Long-Range Financing Challenges Continue

The Social Security Board of Trustees today released its annual report on the financial health of the Social Security Trust Funds. The 2007 Trustees Report shows slight improvement in the projected financial status of the Social Security program from last year.

In the 2007 Annual Report to Congress, the Trustees announced:

• The projected point at which tax revenues will fall below program costs comes in 2017 -- the same as the estimate in last year’s report.

• The projected point at which the Trust Funds will be exhausted comes in 2041 -- one year later than the projection in last year’s report.

• The projected actuarial deficit over the 75-year long-range period is 1.95 percent of taxable payroll -- .06 percentage point smaller than in last year’s report.

• Over the 75-year period, the Trust Funds would require additional revenue equivalent to $4.7 trillion in today’s dollars to pay all scheduled benefits. This unfunded obligation is about $100 billion higher than the amount estimated last year.

“Social Security provides valuable economic protection to workers and their families. We owe it to the American public to continue to offer the best possible support for older Americans, people with disabilities and their families in the coming decades,” said Michael J. Astrue, Commissioner of Social Security. “The Trustees Report is an important tool for those in the legislative and executive branches who will have to make the very difficult decisions about how best to ensure Social Security remains viable for the long term.”

Other highlights of the Trustees Report include:

• Income including interest to the combined Old-Age and Survivors, and Disability Insurance (OASDI) Trust Funds amounted to $745 billion ($626 billion in net contributions, $17 billion from taxation of benefits and $102 billion in interest) in 2006.

• Total expenditures from the combined OASDI Trust Funds amounted to $555 billion in 2006.

• The assets of the combined OASDI Trust Funds increased by about $190 billion in 2006 to a total of $2 trillion.

• During 2006, an estimated 162 million people had earnings covered by Social Security and paid payroll taxes.

• Social Security paid benefits of $546 billion in calendar year 2006. There were 49 million beneficiaries at the end of the calendar year.

• The cost of $5.3 billion to administer the program in 2006 was a very low 1.0 percent of total expenditures.

• The combined Trust Fund assets earned interest at an effective annual rate of 5.3 percent.

The Board of Trustees is comprised of six members. Four serve by virtue of their positions with the federal government: Henry M. Paulson, Jr., Secretary of the Treasury and Managing Trustee; Michael J. Astrue, Commissioner of Social Security; Michael O. Leavitt, Secretary of Health and Human Services; and Elaine L. Chao, Secretary of Labor. The two public trustees are John L. Palmer and Thomas R. Saving.

The 2007 Trustees Report will be posted at www.socialsecurity.gov/OACT/TR/TR07/ by Monday afternoon. [It is now posted]

Hearing Backlog Poll

Free Web poll for your Web site - freepolls.com

Report On SSI Disabled Recipients Who Work

Social Security's Office of Policy has issued a report on SSI disabled recipients who work. Some highlights:

Geographic Distribution

Among the states, the percentage of disabled workers varied from a low of 2.9 percent in Mississippi to a high of 18.8 percent in North Dakota. In general, the percentage of disabled workers was higher in the northern states than in the southern states.

Demographic Characteristics

The majority of these disabled workers were male (53.5 percent). Almost half (49.1 percent) had unearned income; 43.4 percent were receiving Social Security benefits. Comparable figures for all disabled recipients in December 2006 were 45.8 percent male, 38.2 percent with unearned income, and 30.5 percent receiving Social Security benefits.

Diagnosis

Disabled workers are more likely to have certain impairments than other disabled recipients. Almost two-thirds (66.4 percent) of the workers had a mental disorder, including 40.5 percent who were diagnosed with mental retardation. By comparison, 58.1 percent of all disabled recipients were diagnosed with a mental disorder, including 21.6 percent with mental retardation.

Section 1619

The greatest use of work incentive provisions was by participants under section 1619—roughly 30.5 percent of disabled workers. This included 5.0 percent under section 1619(a) and 25.6 percent under section 1619(b).

Other Work Incentives

Use of other work incentive provisions continued to have a smaller, but measurable, impact. In December 2006, about 2.7 percent of the SSI disabled workers had some of their income excluded under one of these provisions—plans to achieve self-support (PASS), 0.5 percent; impairment-related work expenses, 1.6 percent; or blind work expenses, 0.7 percent.

Plans to achieve self-support permit an SSI recipient to set aside income and resources to help obtain the training or education necessary for certain specified occupational goals. In December 2006, 409 PASS participants had earnings, which averaged $792 per month. However, exclusions under a PASS are not limited to earnings. Of the 1,583 disabled recipients with a PASS, 69.4 percent did not have any earnings reported for December 2006. For this group, the PASS excluded unearned income such as Social Security benefits. Out of all PASS participants, 435 had a PASS that excluded only resources.