NCSSMA Suggestions

The National Council of Social Security Management Associations (NCSSMA) has posted on its website a letter it is sending to Linda McMahon, Social Security's Deputy Commissioner for Operations, setting forth NCSSMA's recommendations for increased efficiency. I will excerpt just a few of these recommendations:

• Eliminate the dedicated account provisions [for children's SSI benefits] and installments [in payments of SSI benefits].
• T16 [Title XVI, or SSI] windfall offset reform; allow payment of retroactive benefits of either T2 or T16 payments.
• Eliminate need for medical CDR [Continuing Disability Review] for age 18 beneficiaries who have a permanent disability or meet a listing.
• Eliminate the Annual Earnings Test for all retirement claims if a cost analysis shows it to be cost neutral in terms of administrative costs involved in explaining it, administering it, overpayment collection activities, etc. versus drain on the trust fund.
• Eliminate the concept of SGA [Substantial Gainful Activity] for post-entitlement purposes, and extend the under FRA [Full Retirement Age] retirement work test to disability benefits.
• Stop medical CDRs on permanent impairments and for all disability beneficiaries over a certain age; and profile only those likely to be ceased.
• Have attorneys collect their own fees, and eliminate attorney fee withholding by SSA. If that cannot be done increase our fees to a more realistic amount.
• Put a dedicated computer in SSA FO [Field Office] lobbies for walk-in customers to get online services.
• Remove local office phone numbers from telephone books and provide the 800# so that this becomes the telephone portal to the agency. Calls could be transferred to local offices when needed.
• Add a field on 800# screens to collect customer's e-mail address. Also include a field for cell phones as this is a rapidly growing mode of communication for the public.

ALJ Quality Assurance Plan Being Planned

Below is an excerpt from "Plan To Eliminate The Hearing Backlog And Prevent Its Recurrence", which was released by the Social Security Administration last week, apparently as a response to the CBS News reports on the Social Security disability problems:

A quality assurance program for the hearing process will provide in line review of the claim file, the scheduling process and decision drafting to ensure that ODAR [Office of Disability Adjudication and Review] is providing timely and legally sufficient hearings and decisions. ODAR has been working with Office of Quality Performance (OQP) to design a process by which a random statistically accurate sample of cases is identified for review. This process is being developed in conjunction with the standardized electronic business process. The Regional Attorneys will be charged with the additional responsibility of overseeing the Quality Assurance (QA) program. They will receive additional staff that will be assigned to the Regional Office, but may be out-stationed to various hearing offices to review claim files at three points in the process. The files will be flagged and reviewed once a hearing has been scheduled and again once a draft of a decision has been prepared. In addition to these two processes the QA process will also involve an in-line review of the Senior Attorney Adjudicator process. QA employees will review the file for certain criteria and make appropriate recommendations to management for correction. In addition, under the direction of the Regional Attorney, they will prepare reports and track trends for training purposes. In some instances they will also be responsible for developing the training.

Basically, if you think that 97% of reconsideration denials are accurate, you would love this idea, because it would bring to Administrative Law Judges (ALJs) the same concept that keeps the allowance rate at reconsideration below 15%.

This would, in theory, cause the backlog of claimants awaiting hearings to go down, because claimants would have a lower rate of success before ALJs and would have less incentive to request hearings.

I do not want to get too excited about this. I have heard of other ideas for a quality assurance program for ALJs before and they never went anywhere. This does seem a bit more fleshed out than prior plans I have heard about, but let me list some of the difficulties that Michael Astrue would have in implementing this:

1. Probably, most high level career people at Social Security will be hesitant to have their fingerprints on this plan, since anyone promoting the idea could be in trouble with a change in the Commissioner's office. That could easily happen next year. Finding anyone willing to manage even part of this might be difficult.
2. Finding people willing to work in an ALJ quality assurance program would be difficult. It was hard to find people willing to work as Federal Reviewing Officers. Those foolish enough to take those jobs are now twisting in the wind. Their jobs are being eliminated by a new Commissioner of Social Security who is uninterested in his predecessor's plan. Somewhere down the road, the same thing may happen to anyone who takes a job in an ALJ quality assurance program.
   
3. This would cost a fair amount of money. It is hard to imagine a Congress controlled, even in part, by Democrats appropriating money for this. It is hard to imagine even one house of Congress passing to Republican control next year, much less both.
4. Social Security is already getting media criticism for denying too many meritorious disability claims. An ALJ quality assurance program would lead to more meritorious claims being denied. Implementation of such a plan would result in an incredible amount of media and Congressional attention.
   
5. What do you think that attorneys who represent Social Security claimants are going to do if a quality assurance program reduces the ALJ reversal rate dramatically? Do you think we would just slink away? No, we would litigate. The last time that the Social Security Administration faced a huge wave of litigation was in the early 1980s when the Reagan Administration tried to cut off disability benefits for several hundred thousand claimants. As best I can recall, the Social Security Administration faced something like 30,000 civil actions a year at that time. Social Security attorneys are far more numerous and far more sophisticated than they were 25 years ago. We could easily give the Social Security Administration a lot more than 30,000 civil actions a year; many times that number, in fact. Could the Social Security Administration handle that? Could the federal courts? It did not take long in the early 1980s for the federal courts to figure out who brought on that spate of litigation and to take forceful action to bring the Social Security Administration to heel.
   
6. It is hard to imagine any way of implementing a quality assurance program in a way that would not violate the Administrative Procedure Act, unless you make it a government representative program. A government representative program would certainly need regulations and that would take well past the end of the Bush Administration. I have trouble imagining any of the leading Presidential candidates, both Republicans or Democrats, approving such regulations.
   
7. The Equal Access to Justice Act (EAJA) allows prevailing parties to obtain reimbursement for their attorney fees. There has long been a mistaken belief that Social Security's administrative hearings are exempt from EAJA. Actually, there is no explicit exemption for Social Security. EAJA applies to "adversary adjudications" and adversary adjudications are those in which an agency takes a position. Social Security's hearings have been non-adversial, so EAJA has not applied. This plan is for personnel in Social Security's Office of General Counsel to look at case files before ALJ hearings. For what purpose would they look at the case files other than to "advise" ALJs on how they should decide cases? That sounds a lot like taking a position on the outcome of the case. Take a look at the figures I posted recently about attorney fee payments in Social Security cases last year. EAJA for Social Security administrative hearings could cost the Social Security Administration hundreds of millions of dollars a year -- and no agency gets an appropriation to cover EAJA fees.

The one thing that this proposal tells us for sure is that Commissioner Astrue is not planning to bow gracefully to pressure from Congress and the media to do something to help Social Security disability claimants. He seems ready for a fight.

New HOCALJ In Orlando

I have just learned the Kevin Duggan, who has been an Administrative Law Judge (ALJ) in Charlotte, NC, has been named the Hearing Office Chief Administrative Law Judge (HOCALJ) in Fort Lauderdale, FL.

Help From A Newspaper

From the Post-Tribune of Merrillville, IN:

Dear Fixer: In mid-April, the Social Security Administration deposited $11,620 in my checking account by mistake. They insisted it was mine. I said it wasn't.

In June, they took away all my Social Security payments, plus part of my husband's. I also have to pay my Medicare separately.

After months of trying to resolve this, I received a bill -- for $23,202! I've called a lawyer and my congressman; so far no results.

Darlene Land, Cedar Lake

Dear Darlene: The Fixer has wanted to wait to see if they would screw up again and accidentally deposit $23,202 in your account. That would be one way to take care of this bill.

Instead, we got in touch with Antonio Henderson at Social Security. Henderson was able to get that enormous bill off your back -- at least most of it. But not before running into a little more red tape.

For starters, you said -- even after you paid back much of the $11,620 that was given to you in error -- you were billed $15,111. You also were notified that Social Security would withhold payments until September 2011.

After more investigating, the people at the Social Security Administration agreed you owed them only another $5,000 -- an amount you say should be lower, but at least you're getting closer. They've also agreed to resume sending your regular Social Security checks.

Well, she did call a lawyer before contacting the newspaper and there is probably a lot more to the story than is in this newspaper article, but I still have to wonder if this lady is getting the help she needs. Where did this remaining $5,000 overpayment come from? Is it possible to get the remaining $5,000 overpayment waived? Will she be getting the regular monthly checks only because she agreed to a repayment schedule for an overpayment that she does not understand and which might be waived if she asked? Is she getting the regular monthly checks only because Social Security is still trying to straighten out this mess? Is the problem really solved or just deferred?

In fairness to the newspaper, claimants often seem to omit key pieces of information when they talk with me about overpayments, especially information about their fault in causing the overpayment.

Office Closure In Florida

From the South Florida Sun-Sentinel:

HALLANDALE BEACH - When Al Cunningham, a disabled Vietnam veteran, needed help from the Social Security Administration, he drove the 2.27 miles to the agency's office.

His five-minute trip just got a lot longer.

The agency closed its Hallandale Beach office Jan. 1 and combined it with a larger one 11 miles away at 500 N. Hiatus Road in Pembroke Pines.

The move will save the Social Security Administration $4.61 million a year, regional commissioner Paul Barnes said. ...

Carlos Simmons, president of the Hallandale Beach Community Civic Association, said the closing was "not a good thing. A lot of the elderly folks used that office."

Hallandale Beach Mayor Joy Cooper said she's gotten several calls from upset residents.

"We're opposed to [the consolidation]," said Cooper, whose city offered Social Security administrators a "free satellite office" to continue service. ...

U.S. Rep. Kendrick Meek, D-Miami, whose district includes Hallandale Beach, Pembroke Park and West Park, tried but was unable to stop the office's closing.

Michael Astrue, an agency official, told Meek in a Dec. 18 letter that combining the offices "will enable us to streamline our processes and provide a more effective and efficient way to serve the public."

Cleveland Editorial

From the Cleveland Plain Dealer:

After nearly four years, Social Security disability applicants can be forgiven for being cynical about the latest pledges to end the backlog that keeps their cases in limbo.

This time, however, there is a ray of hope that the reforms will work. The Social Security Administration has a bigger budget from Congress and a newly rediscovered sense of urgency about the plight of the 14,090 applicants in Northeast Ohio who have been waiting for months, in some cases years, for a resolution.

The delays are inexcusable. They heap bureaucratic agony on once-proud working people laid low by crippling diseases or accidents. Some people lost their homes, their medical insurance or their very lives before a judge awarded them a disability payment.

The latest reforms could unclog this blocked spigot. And other remedies are in the works that focus on technology and personnel. More judges will be added to the Social Security bench, and current judges are giving priority to the oldest cases and using videos at hearings or not holding hearings at all - simply relying on the documents before them.

Judges should make sure to use the no-hearings solution carefully, so fraud doesn't flourish in the system. But with thousands awaiting a decision - and a possible tidal wave of dis-abled baby boomers not far down the road - the Social Security Administration has to stop making promises and start delivering on them.

Fee Payments

The Social Security Administration has released updated data on payments of fees to attorneys and others for representing Social Security claimants. Payments were way down in December 2007.

As I mention each time I post this data, it should be of interest not merely to those who represent Social Security claimants. Attorneys and other who represent Social Security claimants are paid at about the same time as the Social Security claimants themselves. When we see a slowdown in payments to those who represent Social Security claimants, we are seeing strong evidence of a slowdown in payments to the claimants themselves. No only do claimants have to wait and wait for adjudication of their claims, they often have to wait for payment after a favorable decision.

Fee Payments
Month/Year	Volume	Amount
Jan-07	15,331	$55,149,991.81
Feb-07	19,301	$69,731,683.72
Mar-07	26,505	$94,396,916.02
Apr-07	26,889	$96,650,134.82
May-07	24,429	$86,625,391.60
June-07	27,716	$99,357,038.71
July-07	21,807	$78,273,082.88
Aug-07	28,607	$101,523,346.40
Sept-07	21,409	$75,663,579.78
Oct-07	21,903	$79,209,567.01
Nov-07	27,096	$97,365,979.66
Dec-07	17,991	$63,943,231.30

Charities Help Alleviate Misery Caused By Delays At Social Security

From The Ledger of Lakeland, FL:

It was early October when the power company cut off Justin Barber for not paying his bills, plunging the Auburndale man ever deeper into despair over his worsening health.

A severe case of sleep apnea has prevented Barber from holding a job for the past few years, and his only means of income has been the charity of relatives, friends, his church and the occasional assistance of Polk County Social Services. ...

Now in its 39th year, the Heart program also helped Barber catch up on rent, keeping him from losing his modest apartment. The program is for people who have fallen on hard times because of sickness, injury or loss of job and have exhausted other forms of assistance.

The Heart program relies solely on donations an d the many resources of United Way of Central Florida, which screens applicants and assists in helping them complete applications that are forwarded to a committee of social services experts for consideration. ...

While applicants are considered on a case-by-case basis, the one constant is that they are people whose circumstances are temporary.

Such is the case with Barber, who has applied for Social Security disability benefits and is awaiting his second determination

His case is a good one, according to experts on Social Security eligibility, and Barber is optimistic of his chances. Meanwhile, however, he has only food stamps and the generosity of others to keep him from being put out onto the streets.