Four Nuggets From The "Plan To Eliminate The Hearing Backlog And Prevent Its Recurrence"

Here is a nugget from the recently released "Plan To Eliminate The Hearing Backlog And Prevent Its Recurrence."

A Steering Committee at the Senior Executive Level of the Social Security Administration was formed to facilitate implementation of the Commissioner’s plan to address the hearing backlog. The first meeting was held on June 7, 2007 with weekly meetings through August and bi-weekly meetings since August. Committee members include:

• Frank A. Cristaudo, Chief Administrative Law Judge (co-chair)
• Mary Glenn-Croft, Assistant Deputy Commissioner for Operations (co-chair)
• Jim Winn, Acting Deputy General Counsel, OGC
• Jerry Berson, Assistant Deputy Commissioner, OS
• Diane B. Garro, Assistant Deputy Commissioner, OLCA
• Phil Gambino, Assistant Deputy Commissioner, OCOMM
• Alan Lane, Assistant Deputy Commissioner, OQP
• Milt Beever, Associate Commissioner, OLMER
• Glen Sklar, Associate Commissioner, ODP, ODISP
• Eileen McDaniel, Associate Commissioner for Management, ODAR
• Bill Taylor, Executive Director, OAO, ODAR
• Nancy Griswold, Deputy Chief Administrative Law Judge
• Larry Miller, Director, OBFM, OB
• Bill Newton, Senior Advisor, OQP
• Marilyn Hull, Project Director

Because of changes in Executive personnel responsibilities in late June, Ron Raborg, Deputy Chief Quality Officer, OQP, replaced Alan Lane, and in August, Roger McDonnell, Assistant Deputy Commissioner for Operations, replaced Mary Glenn-Croft.

And a second nugget:

It was estimated that approximately 20% of the remanded cases [under the informal remand or "re-recon" process] would be reversed by the DDS. By the close of FY 07, 8,714 favorable determinations had been returned by the DDSs and 7,413 cases were returned as “No Decision” by the DDS. This was a 54% reversal rate.

And a third nugget:

Traditionally, management information for the hearing operation has been reported on a monthly basis. While reasons exist for this approach, it may result in delays in case processing as employees process more cases at the end of the month to meet monthly goals. In FY 07, the Chief Judge has been strongly encouraging managers to monitor workload processing data on a weekly basis and ODAR continues to develop workload reports to monitor hearing office performance this way.

And a final nugget:

The Office of the General Counsel, Office of the Chief Administrative Law Judge, Office of Appellate Operations, and Office of Labor Management and Employee Relations have been meeting regularly to make immediate improvements under current rules and to clarify the complaint process for claimants. The group has completed changes to current notices, posters, associated pamphlets, and the website that outlines how to file an unfair treatment complaint. The group continues to study the process and to consider improvements that will involve regulatory changes. The goal is to make the ALJ complaint process both fair and effective for SSA, the ALJs and the American people. In FY 07, the Office of the Chief Administrative Law Judge took a more pro-active stance in pursuing disciplinary actions based on ALJ misconduct.

Biggs Nomination Formally Withdrawn -- Who's Next?

From Dow Jones:

The White House on Wednesday withdrew the formal nomination of Andrew G. Biggs as deputy commissioner of the Social Security Administration.

Biggs was temporarily appointed last year despite a key Democrat's objections.

In April, President George W. Bush used a recess appointment to place Biggs in the No. 2 Social Security Administration job on a temporary basis. Bush acted after Senate Finance Chairman Max Baucus, D-Mont., vowed his panel wouldn't consider Biggs's nomination because of his support for private investment accounts within Social Security.

This would allow the President to nominate someone else for the Deputy Commissioner job, with a term to run until January 2013.

Social Security Debit Card Coming Soon

From Yahoo Finance:

Comerica Bank has been chosen as the card issuer for the federal government's prepaid debit card service being offered to Social Security recipients.

The new system, known as Direct Express, is expected to be rolled out in Texas and several other states in the second quarter of 2008.

Greenville, SC Office Suffers Water Damage

From Yahoo News:

The Greenville [South Carolina] Social Security Office on Pelham Road is temporarily closed due to water damage.

Officials said that the office will be reopened as soon as possible, but they did not estimate how soon the office will reopen.

Correction On Quality Assurance Reviews

I received a helpful, but anonymous, response to my post about the proposed quality assurance reviews of Administrative Law Judge decisions that corrects a misunderstanding I had. I imagine I am not the only one confused by this. I have no way of asking permission to post it, but I see no way it could be traced back, so here it is:

Your comments and observations were interesting and mostly on-target. However, I believe your comment number 7 is predicated on a misinterpretation of the term "Regional Attorney." You base your comment on the assumption that the references to the "Regional Attorney" are, in fact references to the "Regional Chief Counsel" in the Office of the General Counsel (OGC). I believe you are wrong in this interpretation. Regional Attorneys are located in each of the ten Offices of the Regional Chief ALJ, within ODAR, and report to the RCALJ. They may or may not have supervisory responsibilities. Regional Chief Counsels, on the other hand, are the primary OGC executives in each region, and report to the General Counsel in Baltimore. I believe that the Plan's references to Regional Attorneys are references to the ODAR attorneys, not to any attorney (or anyone else) in OGC. To my knowledge ... there have never been any serious discussions about having OGC involved in any substantive manner in the adjudication process. (The closest was the Counsel to Council short-term project several years ago. Even then, OGC had no discretionary involvement in the outcome of any individual claim).

Although your assumptions would arguably be correct if OGC became involved in the hearing process, I do not believe that is the Agency's intent.

Hiring Plans At Social Security

From a Federal Times article about federal agency hiring plans:

But some sorely understaffed and underfunded agencies are planning only modest hiring efforts this year.

The Social Security Administration — which is at its lowest staffing levels in 35 years and which faces a growing backlog of 747,000 disability claims cases — plans to hire 150 administrative law judges and 92 support staff this year.

SSA plans to replace only one of every two state disability determination service employees — who help decide whether people claiming severe disabilities should receive benefits — who leave in 2008.

SSA might hire more people, but Commissioner Michael Astrue hasn’t made any decisions yet, spokesman Mark Lassiter said.

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.