Does OIDAP Regard Public Comments As A Meaningless Formality?

It must be a tense time for those who are heavily invested in Social Security developing its own occupational information system for disability determination.

Social Security has its own Occupational Information Development Advisory Panel (OIDAP) working on developing a new occupational information system just for Social Security. However, a National Academy of Science report recommended that Social Security attempt to work with the Department of Labor (DOL) on adapting the O*NET occupational information system to its needs instead of striking off on its own.

Recently, OIDAP gave the public an opportunity to comment on its plans for an occupational information system. That period expired yesterday. However, on June 28, two days before the public comment period ended, OIDAP completed its own review of the National Academy report. No surprise in OIDAP's conclusion: Social Security should press ahead in developing its own occupational information system. David Traver has obtained the review and posted it on SSA CONNECT.

I am pretty sure that OIDAP is not an official Federal Advisory Committee. Even if it were, I do not think that it would be required to give the public an official comment period. As far as I know, there is no legal remedy for OIDAP acting on its own review of the National Academy report -- which is the absolutely critical issue for OIDAP -- before the end of the comment period.

I am tempted to speculate on what is behind OIDAP's odd timing but will not. What I will say is that if it will take many years, lots of money and the support of more than one Commissioner of Social Security for OIDAP to create its own occupational information system. Opponents will have many opportunities to derail the OIDAP train. Treating public comments as a meaningless formality just stiffens the opposition to OIDAP.

OIDAP And The Department Of Labor

I received an e-mail today from the Occupational Information Development Advisory Panel (OIDAP) with an attached copy of the transcript of the Panel's March 25, 2010 meeting. I have no idea how many other people were sent this transcript. There was no explanation of why it was sent to me.

At this meeting, the Panel received the report of the National Academy of Sciences (NAS) that recommended that Social Security work with the Department of Labor on adapting O*NET for Social Security's occupational information purposes instead of Social Security creating its own occupational information system from scratch. I would speculate that this transcript was sent to me to demonstrate that OIDAP considered the NAS report and found good reason to reject it.

I have uploaded the transcript via Yousendit. The first 100 people who wish to do so can download the transcript.

I have not been able to study the transcript in depth but it is clear that the Panel's chair, Mary Barros-Bailey, was unreceptive to the NAS report. I expect she believes that she and others asked questions that demolished the NAS report. I would not agree. Judge for yourself. Take a look especially at pages 68-73 and 99-106.

I was not there but I do notice from the transcript that Barros-Bailey and others seemed quite eager to interrupt Nancy Shor's questions. Nancy Shor is the Executive Director of the National Organization of Social Security Claimants Representatives (NOSSCR). She may have had a different perspective from Barros-Bailey. I did not notice any other panel member being interrupted in the same fashion as Ms. Shor. I do know that transcripts do not always reflect the tenor of what has happened at a hearing or meeting. Perhaps, Ms. Shor had as much opportunity to ask questions and have them answered as she wished but it does not quite seem that way in the transcript.

Below is one small excerpt from the transcript. This is only one small detail but it is interesting. Margaret Hilton of the National Academy of Sciences is speaking:

We do know that the data collection costs [for O*NET] right now are about $6 million a year, and that updates 100 occupations a year. So that gives you some idea. ...

... [W]henever O*NET adds more occupations, whenever it becomes less aggregated, more disaggregated, as it has done, that is always going to increase your data collection costs, because you have more occupations to go after ...

At least one OIDAP member made the point that this means that the Department of Labor is very inefficient. Possibly. It may also mean that creating and maintaining an occupational information system is incredibly expensive. There are different ways of looking at things.

Interesting

On May 18 Social Security requested that the Office of Management and Budget (OMB) approve new regulations "to prohibit probation or parole violators from serving as representative payees under ... the Social Security Act" which seems innocuous enough. Social Security has now withdrawn the proposal. Why?

The Watchdog Gets It Done

From the St. Paul Pioneer Press:

For Diane Grooms, doing everyday things hurts all the time.

For 25 years, the St. Paul woman has suffered pain in her joints from rheumatoid arthritis; more recently, the pain has been complicated by fibromyalgia. Last summer, the combination got to be too much.

"I feel like somebody took a baseball bat and just beat me," she said.

Unable to continue working, Grooms applied to the Social Security Administration for disability insurance payments. Her application was denied. She asked to have her application reconsidered, and it was denied again. Then she asked for a hearing in front of an administrative law judge....

As a single person, she had no other source of income, such as a working spouse. Before long, she couldn't pay her rent.

She was running out of time and money. Ordinarily, she wouldn't get an appearance before the administrative law judge for another 18 months because of the huge number of Social Security disability cases....

Grooms was broke and behind on her rent, but she said a Social Security official told her she'd have to be homeless before her case would be sped up....

She asked U.S. Rep. Betty McCollum's office to help expedite her case, but the Social Security Administration told the congresswoman's office in early March that Grooms didn't qualify....

As she faced a court eviction hearing in early April, Grooms cast her net wide, asking the Watchdog for help as well as notifying her members of Congress of her increasingly fragile situation. The Watchdog immediately contacted the Social Security Administration, asking the agency to take a fresh look at Grooms' case.

Within days, the Minneapolis Office of Disability and Adjudication Review flagged Grooms' appeal for expedition. Her hearing date was set for June 11.

Deadline Day For OIDAP Comments

Today is the deadline for submitting comments on the proposal by Social Security's Occupational Information Development Advisory Panel (OIDAP) for a new occupational information system. Comments may be submitted online or by fax to (410) 597-0825 or by mail to the Office of Program Development and Research, Occupational Information Development Project, Social Security Administration, 3-E-26 Operations Building, 6401 Security Boulevard, Baltimore, MD 21235-6401.

As tedious as this may seem, the OIDAP proposal is vitally important. This is the most important policy matter addressed by Social Security in more than 30 years.

The OIDAP proposal is drawing several lines of criticisms. Maybe the most important line of criticism concerns Social Security's strong desire to develop its very own occupational information system rather than working with the Department of Labor which has vastly more experience with this sort of thing than Social Security. Why is it so important to Social Security to do this on its own unless it does want to control the outcome of disability determinations? I cannot think of a reason. OIDAP has not given us no reason other than to suggest that the Department of Labor will not work with Social Security which is clearly false. Department of Labor seems mystified by Social Security's go it alone attitude.

I do not think that OIDAP staff or Social Security management gets it. We do not trust you. There is no reason why we should trust you. The way you are acting makes us very nervous.

Will Republicans Run On This Issue Or Run Away From It?

From the Pittsburgh Tribune-Review:

Ensuring there’s enough money to pay for the war will require reforming the country’s entitlement system, [House Minority Leader John] Boehner said. He said he’d favor increasing the Social Security retirement age to 70 for people who have at least 20 years until retirement, tying cost-of-living increases to the consumer price index rather than wage inflation and limiting payments to those who need them.

"We need to look at the American people and explain to them that we’re broke," Boehner said. "If you have substantial non-Social Security income while you’re retired, why are we paying you at a time when we’re broke? We just need to be honest with people."

Social Security Disability Changes Coming In Britain

From Touch Stone, a blog written by members of the staff of Britain's Trades Union Congress:

One of the quietest announcements in the Budget Reports relates to Disability Living Allowance : “the government will introduce the use of objective medical assessments for all DLA claimants from 2013-14 to ensure payments are only made for as long as claimants need them.”

The Chancellor was rather more open in his speech, where he put this proposal in the context of concerns that “the costs have quadrupled in real terms to over £11 billion, making it one of the largest items of government spending.”The Chancellor made it clear that existing claimants will have to be re-tested to keep their benefit, and the context makes it plain that claimants can expect the new test to make sure that many of them will cease to qualify. In an attempt to justify this, Mr. Osborne spoke of the need to “continue to afford paying this important benefit to those with the greatest needs, while significantly improving incentives to work for others.” ...

The government has a short memory. In 1997, the new Labour government inherited a similar initiative, the Benefits Integrity Project, which aimed to re-assess thousands of disabled people’s benefit entitlement. As news spread that disabled people were being forced into abject poverty and some were considering suicide, the government discovered that cutting benefits can quickly become very unpopular. The Daily Mail and its Sunday sister were particularly critical, and disabled demonstrators chained their wheelchairs to the gates of Parliament.

Does any of this sound a bit familiar to Americans?

By the way, no one seems to know exactly what the British government is planning.

Is The Social Security Administration Unconstitutional?

Take a look at Tom Shoop's post on Fedblog concerning today's Supreme Court decision in Free Enterprise Fund v. Public Company Accounting Oversight Board. Shoop writes that the Court held:

... that the way the Public Company Accounting Oversight Board was set up under the 2002 Sarbanes-Oxley Act violates the Constitution. Members of the board get two layers of protection: They can only be removed by the Securities and Exchange Commission for cause, and the SEC's members can only be removed by the president for cause. The court's majority ruled that at least in the case of the board, that's one layer of protection too many.

In a dissenting opinion, Justice Stephen Breyer raises an interesting issue: What about the dozens of independent federal agencies who are headed by officials who have some degree of statutory protection from arbitrary removal? If they are, in turn, administered on a day-to-day basis by executives who also get protection from removal under civil service laws, doesn't that violate the two-layers principle?

Justice Breyer's dissent includes a list of 48 agencies that may be affected by the majority opinion in Free Enterprise Fund. Social Security is not on Justice Breyer's list but this appears to be an oversight since Social Security qualifies for the list under the criteria given by Justice Breyer based upon the facts that Social Security has independence in submitting budgetary requests to Congress and Social Security is designated as "indepedent" by statute. Following Justice Breyer's logic, the existence of Senior Executive Service and Administrative Law Judge (ALJ) positions at Social Security makes the agency's setup unconstitutional. Indeed, the existence of any civil service position at Social Security could make the agency's setup unconstitutional.

Remember, this was a dissenting opinion. Justice Breyer was not explaining the majority opinion but giving reasons why he believes the majority opinion is unwise.

Update: Breyer does include Social Security in a list in one of the appendices to his dissent as a possibly affected agency. He specifically mentions Social Security as a possibly affected agency in the body of his dissent at pages 68 and 70 of the PDF.

Social Security would be, by far, the biggest agency possibly affected by this.

Note that there are plenty of people out there who want to litigate the constitutionality of Social Security even though precedent is solidly against them. This decision has nothing to do with the constitutionality of Social Security itself, just the way in which the Social Security Administration is set up to administer Social Security, but that will not stop the litigation. Standing may stop most of the litigation, however.

The majority opinion is a huge win for the "unitary executive" theory espoused by John Yoo and others. I thought that the excesses of the Bush Administration had seriously eroded whatever support there was for this theory but not in the eyes of five members of the Supreme Court.

Further update: I think the only reasonable reading of this opinion is that any statute that would prevent Commissioner Astrue from removing any ALJ or SES employee from his or her position is unconstitutional. This may apply to ANY Social Security employee. Commissioner Astrue may be constrained by union contracts but not by a statute. As the most important Republican holdover in a Democratic Administration and as someone who has publicly expressed frustration over his inability to discipline ALJs, Commissioner Astrue is in a delicate position. Aggressive action on his part could cause him to lose his job as his agency is absorbed back into the Department of Health and Human Services or becomes a cabinet level department.

Elena Kagan's nomination hearing and the gun decision today are getting most of the attention but the Free Enterprise decision may be today's most important judicial development.