Senate Finance Committee Democrats Letter On Proposed Procedural Rule Changes

Several of the Democrats on the Senate Finance Committee have issued a press release attaching this letter:

January 24, 2008

The Honorable Michael J. Astrue
Commissioner
U.S. Social Security Administration
6401 Security Boulevard
Baltimore, MD 21235

Dear Commissioner Astrue:

This letter provides comments on the Notice of Proposed Rulemaking (NPRM) entitled, “Amendments to the Administrative Law Judge (ALJ), Appeals Council, and Decision Review Board Appeals Levels,” published in the Federal Register on October 29, 2007 (72 FR 61218).

The proposed changes in this NPRM raise many concerns. The Social Security Administration should undertake a more detailed discussion before taking any final actions on these proposed rules.

Changing the rules for medical and vocational evidence submission. This NPRM seems to restrict the ability of claimants and their representatives to submit critical evidence during the period from five days before the hearing to the issuance of the ALJ decision. While some efficiency is necessary, it seems inappropriate to enforce strict rules when claimants and their representatives do not necessarily have control over when and how evidence is made available. For example, we question whether claimants should be held accountable for the responsiveness of health care providers. The Social Security Act requires SSA to accept new evidence adduced at a hearing. It would exceed SSA’s statutory authority systematically to disallow that evidence.

Formalizing the appeals process. We have concerns about increasing ALJs’ opportunities to dismiss cases based on the claimants’ ability to attend pre- or posthearing meetings. The NPRM will leave the ALJ significant latitude on this issue, and this may compromise claimants’ due process rights and their access to the appeals process.

Closing the record. While closing the record will simplify the legal procedures, it is at the expense of the affected claimant. This NPRM achieves its estimated $1.5 billion cost savings from attrition; the denied claimant who would have been allowed benefits either chooses not to reapply or dies in the interim. This change may also cause evidence to be excluded from further consideration during a reapplication hearing. This is an unacceptable means of simplifying procedures. It is also less effective in decreasing backlogs. Those whose appeal to the ALJ fails will be encouraged to submit new applications, and even a streamlined reapplication process will only increase the backlogs at the field office and disability determination services offices. Shifting a backlog is not an effective solution.

We look forward to further discussions regarding these and other issues prior to any final actions on this NPRM. We look forward to continuing to work with you to better serve the American public. Please contact [staff] at the Finance Committee to schedule a meeting to explore these issues.

Sincerely,

Max Baucus, Chairman
John D. Rockefeller
Debbie Stabenow
Jeff Bingaman
John Kerry
Maria Cantwell
Blanche L. Lincoln
Ron Wyden

Duggan To Fort Lauderdale, Not Orlando

I had posted that Administrative Law Judge (ALJ) Kevin Duggan will become the new Hearing Office Chief Administrative Law Judge in Fort Lauderdale. By mistake, the caption on that post indicated that Duggan was going to Orlando. The body of the post is correct. ALJ Duggan is going to Fort Lauderdale, not Orlando.

I should have noted at the time that ALJ Duggan has been active in the ALJ Association, which is a union which represents Social Security ALJs. My understanding is that taking a HOCALJ position would put Duggan in management and no longer eligible to be a union member.

Astrue Says SSA Has Been Bled Dry

From CQ Weekly (subscription required) (emphasis added):

Next month the Social Security Administration plans to begin what is, for that agency at least, a veritable hiring binge. It will be offering jobs to 150 administrative law judges, who will be responsible for deciding when sick workers are too disabled to return to work.

Such staffing expansions ordinarily don’t register more than a blip within the vast federal bureaucracy. But the effort over the next year is expected to reveal whether the Social Security system is equipped to deal with an anticipated crush of baby boomers in their 50s and 60s who suffer from chronic diseases and serious workplace injuries.

The system isn’t up to the task right now. The fresh hires are being added to a cadre of about 1,000 hearings judges, and the newcomers’ task is explicitly to begin whittling down an imposing pile of nearly 750,000 applications for disability determinations — some of which have been sitting in the agency’s in basket for more than three years — that is twice as large as the workload the agency faced a decade ago. ...

“I’m not aware of a systemic problem that greater resources would not significantly address,” said Albert R. Wynn of Maryland, who is among the most vocal House members in favor of expanding the Social Security system’s legal staff. “I don’t want to shorten the hearing process or what people are entitled to. It’s very difficult for a person in a disability situation.”

Max Baucus, the Montana Democrat who chairs the Senate Finance Committee, which would take the lead in writing any legislation to change the Social Security system, was more direct addressing the situation last year, blaming the Bush administration for imposing domestic spending cuts that compelled Congress, in his view, to underfund the Social Security Administration. The tone is prompting Social Security’s top official to focus on short-term.

“The message coming from Congress loud and clear is: Get the backlog down, process cases on time and maybe we’ll think about these other issues later,” Social Security Commissioner Michael J. Astrue said in an interview. ...

Each year from fiscal 2000 to 2007, Congress appropriated less money for the Social Security Administration’s administrative accounts than the president requested, according to the Social Security Advisory Board, an independent panel. Spurred by the disability backlog, Congress gave the agency $150 million more than President Bush requested for fiscal 2008, which is how Astrue can afford his hiring binge.

“They started bleeding this agency dry in the Clinton administration and it persisted in the Bush administration,” Astrue said. ...

Astrue worries about the effects disabilities are having on the system’s long-term costs, noting findings that show that since 1985, the amount of Social Security’s total spending consumed by disability benefits has increased from 10 percent to 17 percent.

“An increasing percentage of the American public is on the rolls,” Astrue said. “It’s a number I wish Congress and others would look at.”

It is only after an appropriations bill has been passed that Astrue is willing to talk this way. We will soon see his budget request for fiscal year 2009, which will tell us whether he really has gotten the message.

Note also that Astrue cannot talk about how his agency has been bled dry without also expressing a desire that fewer people draw Social Security disability benefits. Other than his father, I wonder how many Social Security disability claimants and recipients Astrue has ever met.

SSA Employees Promote Social Security Customer Improvement Bill

From the Amherst Times of New York:

Today, Congressman Brian Higgins (NY-27) was joined by West Seneca Supervisor Wallace Piotrowski and local Social Security Administration employees as he announced that he has introduced H.R. 5110 The Social Security Customer Service Improvement Act, a new bill that would give Congress a proper oversight role for local hearing office operations to ensure that customer service is at a level that citizens deserve. ...

Congressman Higgins’ bill would give Congress a proper oversight role for local hearing office operations. Specifically the bill would:

• Require SSA to provide Congress a nonpartisan detailed yearly budget estimate;
• The budget estimate would include yearly statistics of the number of cases pending at hearing offices, the rate at with case backlogs are increasing or decreasing, the average length of time it takes for claims to be administered, and staffing level trends at offices over time;
• Prohibit SSA from closing or limiting hours at local offices without providing Congress with at least 6 months notice and thoughtful justifications for closure;
• Require SSA to inform Congress of changes to how it staffs offices at least 3 months before a proposed change could be implemented.

“This is an important issue, especially in the Town of West Seneca and surrounding communities like Cheektowaga and Lackawanna where you find a large senior citizen population,” said West Seneca Supervisor Wallace Piotrowski. “Residents are justifiably frustrated with the delays caused by understaffing and bureaucratic red tape. This legislation gives our local federal representatives the tools to know how their communities will be impacted by Social Security Administration changes and advocate on behalf of the residents they serve.” ...

“The American Federation of Government Employees (AFGE) fully supports the efforts of Congressman Brian Higgins to introduce legislation requiring the Social Security Administration (SSA) to make transparent any attempt to close a Field Office (FO) and deprive the public of the service it deserves”, said Paul Demler, President of AFGE Local 3342.

I hope those Social Security employees were off the clock.

IRS To Do Rebates

There was an article three days ago suggesting that the Social Security Administration would process the rebate checks that are to be the centerpiece of the economic stimulus plan expected in the next few weeks, but the Associated Press is reporting today that the Internal Revenue Service (IRS) will be doing the processing.

It is only a guess, but my guess is that the IRS was trying to pawn this job off on Social Security and Social Security said "No."

Altmire Raises Social Security Issues

From WTAE-TV:

The government might be denying Social Security disability benefits to hundreds of thousands of people who should be getting them. That's according to one local congressman, who said he believes the government is rejecting valid claims simply to save money.

Freshman Rep. Jason Altmire is reacting to a recent network news investigation highlighting the potential problem, and he compared it to another highly criticized policy involving military benefits.

Only after congressional intervention was an emotional Jean Sbaraglia, of Allison Park, able to get the Social Security disability benefits the government spent years denying her.

No, I do not think he is any relation to Arthur Altmeyer, a major figure in the history of Social Security in the United States and the man for whom the Altmeyer Building at Social Security headquarters is named. The name is spelled differently.

No Match Rule Imminent?

Greg Siskind's immigration blog is reporting that new "no match" rules are imminent. Last fall, a court order blocked the Social Security Administration from sending out a huge batch of letters informing employers of situations in which an employee's name did not match his or her Social Security number. New regulations are being issued to try to address the concerns that led to the court order blocking the "no match" letters. While there may be renewed efforts to block the "no match" letters, there is a good chance that they will go out in the near future.

"No match" letters had been sent for years, but there was no penalty for failing to clear up the situation. Mostly, employers ignored the letters. Sanctions are now threatened, so the new "no match" letters are potentially of considerable importance as an immigration enforcement measure. Unfortunately, there will be literally millions of U.S. citizens also affected by the "no match" letters and some percentage of those affected will be contacting the Social Security Administration.

No one has any idea what effect the new "no match" letters will have upon the Social Security Administration's workloads. This may be little more than a blip or it may be a tidal wave. The Social Security Administration has been quiet about the potential workload problems that may arise from this. I cannot help thinking that Michael Astrue has been afraid of saying anything, since the "no match" letters are a major part of the President's plan to deal with illegal immigration and illegal immigration is a major issue for Republicans, in particular. The sheer unpredictability of the situation would scare me if I were Michael Astrue.

Quick Disability Determinations

From the South Bend Tribune:

The Social Security Administration this week launched a quick way to qualify someone for disability benefits in Indiana. ...

More than 90 percent of the cases helped by the new process in other states so far involved people with cancer or kidney failure, and babies born with a low birth weight, said Carmen Moreno, spokeswoman for Social Security's regional office in Chicago. ...

In the Boston area, where the process was tested, 3 percent of the applicants qualified for "quick disability determination," as it's called, according to Social Security.

Can someone explain to me what is new here apart from the name?