E-Pulling Finally Killed Off

The Social Security Administration has finally decided to kill off the e-pulling experiment. Before being heard by Social Security's Administrative Law Judges (ALJs), the files of disability claimants are normally put into some semblance of order by staff at hearing offices. This "pulling" of exhibits can be a time consuming business. Lisa DeSoto, the former head of Social Security's Office of Disability Adjudication and Review (ODAR), thought that a computer program could do this. A lot of people, including me, kept saying that e-pulling would never work. We were right. Too much judgment is involved in pulling exhibits to allow a computer program to perform this vital task. I wonder how much money was wasted.

Number Of ALJs To Increase

There is a report on the ALJ Discussion Forum from an anonymous but previously reliable source that Social Security Commissioner Michael Astrue has decided to increase the number of Administrative Law Judges (ALJs) at his agency from 1,450 to 1,600 in fiscal year (FY) 2011 and FY 2012 and to open 15 additional hearing offices in FY 2011.

No Progress On Earnings Enforcement

From a recent report by Social Security's Office of Inspector General:

...[I]n some cases, retired beneficiaries may continue to work while receiving Social Security benefits. In those instances, Title II of the Social Security Act (Act) requires that SSA use an Annual Earnings Test (AET) to measure the extent of beneficiaries' retirement and determine the amount, if any, to be deducted from their monthly benefits. The Act provides for a two tier earnings test: one for beneficiaries under full retirement age and another for beneficiaries in the year they attain full retirement age. ...

To ensure compliance with the AET provisions, SSA compares beneficiaries’ reported earnings that are recorded on SSA’s Master Beneficiary Record (MBR) with earnings that were reported by employers that are recorded on SSA’s Master Earnings File (MEF). This process, called the Earnings Enforcement Operation (EEO), is designed to detect over- or underpayments that may have occurred during the year.

Our 2007 audit of the AET disclosed SSA had not adjusted the benefit payments of all beneficiaries who were identified by the EEO. As a result, SSA overpaid about $313 million to 89,300 beneficiaries and underpaid about $35 million to 12,800 beneficiaries for Calendar Years (CY) 2002 through 2004. In addition, we found SSA had not processed approximately 2.1 million of the 2.5 million Earnings Enforcement selections for CYs 1996 through 2005. We made several recommendations to improve the EEO, including that SSA review and process, as appropriate, all Earnings Enforcement selections pending since 1996.

RESULTS OF REVIEW

SSA had not made significant progress to resolve the 2.5 million Earnings Enforcement selections. Of the approximately 2.1 million Earnings Enforcement selections that were pending at the time of our prior audit, we found SSA had only processed about 337,500 (16.1 percent). In addition, our review disclosed there was a substantial number of improper payments in the backlog for the affected beneficiaries.

Based on a random sample of 275 beneficiaries, we estimate SSA

• overpaid about $956 million to 616,459 beneficiaries and

• underpaid about $245 million to 181,312 beneficiaries

New Digs In PA

From the Daily Item of Sunbury, PA:

The Social Security office is moving from 300 Market St. to a larger office near the Susquehanna Valley Mall in Hummels Wharf at nearly triple the current rent. ...

But, according to Gina Blyther Gilliam, regonal public affairs officer for the mid-Atlantic region of the U.S. General Services Administration in Philadelphia, the Sunbury office rate was negotiated in 1997, and the space "no longer meets the requirements of the Social Security Administration."

The move is being made because of an increase in visitors, officials said.

The Sunbury office serves Northumberland, Snyder and Union counties. It saw 15,866 visits in 2008. So far this year, the office has received 13,759 visitors. ...

The new building contains 8,135 rentable square feet, priced at $38.63 per year. The current building has 6,874 rentable square feet, at a cost of $16.75 per square foot.

$24 Million For Electronic Medical Records

A press release from Social Security:

Michael J. Astrue, Commissioner of Social Security, today announced the availability of $24 million in contracts to provide the agency with electronic medical records to improve the efficiency of its disability programs. Through a Request for Proposals available on www.fedbizopps.gov, Social Security is looking for health care providers, provider networks, and health information exchanges to participate in its Medical Evidence Gathering and Analysis through Health Information Technology (IT) program.

“With these competitive contracts, Social Security continues to be a leader in the use of health IT to improve service to the American public,” Commissioner Astrue said. “This technology will greatly improve the speed and consistency of our disability decisions.”

The contract opportunities announced today are funded through the American Recovery and Reinvestment Act. They will require awardees, with a patient’s authorization, to send Social Security electronic medical records through the Nationwide Health Information Network (NHIN). The NHIN, a safe and secure method for receiving instantaneous access to electronic medical records, is an initiative of the Department of Health and Human Services and is supported by multiple government agencies and private sector entities.

Social Security is seeing a significant increase in disability applications as a result of the current recession. The agency expects to receive more than 3.3 million applications in fiscal year (FY) 2010, a 27 percent increase over FY 2008. To process these applications, the agency sends more than 15 million requests for medical records to health care providers. The use of health IT will vastly improve the efficiency of this process, which currently is largely paper-bound.

For nearly a year, Social Security has been successfully testing health IT to obtain electronic medical records. Disability applications processed with electronic medical records from the test sites in Massachusetts and Virginia have significantly reduced processing times.

More information on Social Security’s use of health IT is available at www.socialsecurity.gov/hit.

Senate Appropriations Committee Reports Out $11.4 Billion Appropriation

I missed this earlier. The Senate Appropriations Committee has reported out an $11.4 billion appropriation for the Social Security Administration for fiscal year 2010, the amount recommended by the President, the same amount already passed by the entire House of Representatives. The matter now heads to the Senate floor and then to a Conference Committee. Even if the House and Senate pass the same amount for Social Security, a Conference Committee will be needed for other differences in the large Labor-HHS appropriations bill, which includes Social Security. Action is needed before the end of the fiscal year, September 30.

Some History On "Accommodations"

This is from the U.S. Solicitor General's brief to the Supreme Court in Cleveland v. Policy Management Systems Corp:

The Social Security Act requires consideration of a claimant’s ability to do “his previous work.” 42 U.S.C. 423(d)(2)(A). It does not require consideration of his ability to perform his prior job with a possible ADA [Americans with Disabilities Act]-mandated accommodation that the employer, in fact, never provided. See 11 SSA Guidance at 15-401 [which reproduced the "Skoler" memorandum issued by Social Security on this subject in 1993] . Similarly, the Act requires consideration whether a claimant is able to do other work that “exists” in the national economy. 42 U.S.C. 423(d)(2)(A). It does not require consideration whether he could do jobs as they might be modified by reasonable accommodations that the ADA might require but that employers have not actually made.

Once the Solicitor General tells the Supreme Court that the government interprets an Act of Congress in a certain way, the government's hands are tied. The government cannot later change its mind about what the statute means. How come OIDAP is issuing a document that talks about "accommodations" that would allow Social Security disability claimants to work? Do they think that they can reopen this long settled issue?

ADA Accommodations On The Agenda? Retarded People On The Hit List?

Social Security's Occupational Information Development Advisory Panel (OIDAP) has posted a couple of key documents, What is a Content Model, June 2009 and Social Security Administration’s Legal, Program, and Technical/Data Occupational Information Requirements, June 2009, which give more information about the agency's plans for developing an alternative to the Dictionary of Occupational Titles (DOT) for use in determining disability. Here are some excerpts from the "Requirements" document (emphasis added):

How can we address accommodations and job restructuring? In short, what (if any) information should SSA include in its database describing work regarding general accommodations that may be available within and among occupations or industries for specific occupations? For example, what are the “core” activities of occupations? Are workers offered options regarding how they perform the core tasks, such as a sit/stand option? ...

[W]e should consider identifying potential opportunities for accommodations and job restructuring for occupational core tasks, particularly when both of the following apply: a) the type of accommodation or job restructuring is possible in a significant number of occupations nationally (e.g., for occupations within a given industry); and b) the type of accommodation or job restructuring is possible for the occupation as it is generally performed throughout the nation. That is, we do not intend for the OIS [Occupational Information System] to include highly customized accommodations or job restructuring that are specific to a given employer, to a specific individual, a specific impairment, or to tasks that are not occupational core tasks. ...

[I]f SSA includes, for example, specifications in its new OIS regarding the levels of various cognitive abilities that are required for each occupation, who will bear the burden of defending the validity of such specifications when (not if) they produce adverse impact with respect to approving disability claims? Arguably, if SSA is the entity that develops the OIS database, and performs the data collection and analytical steps involved in producing the specifications of how much of each non-physical trait each occupation requires, SSA would be the entity who must defend their validity.

It seems that Social Security staff involved in producing these documents either do not know or do not care that their agency has a longstanding position that it is inappropriate to consider accommodations that employers might offer to handicapped workers, that work may be considered available to a claimant only if the claimant is able to perform the job as it is normally performed. Americans with Disabilities Act accommodations are supposed to be off the table. Any change in this policy would have dramatically adverse implications for Social Security disability claimants. An expansive application of such a policy would make it possible to deny any claimant who did not meet a Listing. The words "accommodation" and "job restructuring" are red flags. I find their use to be disturbing.

It also seems that Social Security staff expects and probably desires to use the proposed Occupational Information System to deny even more disability claims filed by those with low cognitive abilities. My opinion is that Social Security has already gone way too far in denying the claims of individuals of low cognitive abilities. Any further extension of this policy would be unwise and unfair. To be more blunt, Martin Gerry got fired. Why would anyone want to go even further with a bad idea he was promoting?