Administrative Law Matters

While I am a Social Security law specialist, in a more general sense I practice administrative law and I do so proudly since America has the most advanced system of administrative law in the world. Few nations can boast of anything approaching the Administrative Procedure Act. The Freedom of Information Act and the Privacy Act are important components of our system of administrative law and models for the world. Even the seldom noticed Paperwork Reduction Act is an important bulwark against bureaucratic overreaching. Does this sort of thing matter to anyone other than bureaucrats and drudges like me? Take a look at what happened in India after it adopted a freedom of information act.

Fireworks For The Fourth -- Remember Those Who Serve

Tip Of The Hat To The Oregonian

Trudy Lieberman of the Columbia Journalism Review gives The Oregonian a "tip of the hat" for its article on the plight of those who have been approved for Social Security disability benefits but who face a two and a half year wait for Medicare benefits. Well deserved.

Hiring Freeze

An e-mail message to Social Security employees:

From: ^Commissioner Broadcast
Sent: Friday, July 02, 2010 11:57 AM
To: Undisclosed recipients
Subject: COMMISSIONER'S BROADCAST--07/02/10
A Message To All SSA And DDS Employees

Subject: FY 2011 Budget Update

I want to update you on the status of our fiscal year (FY) 2011 budget request. It is likely that Congress will not pass our FY 2011 budget by October 1, and we will begin FY 2011 operating under a continuing resolution (CR). The CR will severely limit our spending to a prorated share of our FY 2010 appropriation.

A CR is always disruptive, but will be particularly difficult in FY 2011. For the last two years, we have had an extra $500 million in Recovery Act funding available in addition to our regular annual appropriations. The combination of these two funding sources has allowed us to hire aggressively and work overtime to reduce our disability backlogs, handle increasing claims, and better serve the American public. Under a CR in FY 2011, we will have less funding than under recent CRs to support our higher staffing level because we are not permitted to include the Recovery Act funding as part of our previous year baseline.

Due to this anticipated drop in funding, we must begin preparing for a CR now. Effective immediately, all headquarters and regional office staff components will be in a full hiring freeze. Beginning on October 1 and continuing through the first quarter of FY 2011, our operational components, including the State Disability Determination Services, will only be allowed to replace staffing losses. We will not reduce overtime during the first quarter. However, to fund overtime and this minimal staffing replacement, we must defer any additional hiring and all other costs that are not critically essential to keeping our doors open.

The additional funding we’ve received in the past three years has allowed us to make great strides, and I am proud of our many accomplishments. For 18 straight months, we have reduced the hearings backlog by over 74,000 cases, despite increased applications. At the same time, we have eliminated nearly four months of waiting time for hundreds of thousands of Americans awaiting hearings. In addition, we have improved service across the agency. DDS accuracy and productivity remain high, despite the destructive and unnecessary furloughs and staffing restrictions imposed by some states. We have increased our CDRs and redeterminations, which have resulted in a significant increase in SSI payment accuracy. We have reduced our waiting times in field offices and on the 800 number. In fact, we are answering our 800 number calls faster than any time in nearly a decade. I know the American people appreciate your hard work and dedication.

While we must make steep cuts in our spending, I will do what I can to minimize the disruption to our positive momentum. This plan is a temporary measure that we cannot sustain beyond December; I am hopeful that the CR will end before we have to take more drastic measures. Our services are vital to the financial stability of millions of Americans, and you can be sure I will be doing everything possible to persuade Congress to approve the critical funding that the President has requested for us.

Michael J. Astrue
Commissioner

Problem With E-Mail Subscriptions

Readers can subscribe to this blog by e-mail. Over the years, the e-mail subscriptions have worked quite well. Unfortunately, there is some problem at the moment. None of the posts yesterday or today has gone out by e-mail. I am trying to solve the problem but for now, do not rely upon e-mail to read this blog.

The problem is that most of the e-mail subscribers will not read this post. They will think the blog has been inactive because of the impending holiday.

Regs On Scheduling Hearings Clear OMB

The Office of Management and Budget (OMB) must approve any regulation before it is published in the Federal Register. It has been quite some time since Social Security submitted proposed final regulations to OMB "to clarify that the agency is responsible for setting the time and place for a hearing before an administrative law judge." OMB has finally cleared the final regulations. The OMB website indicates that the completed action was "consistent with change." Social Security should publish these final regulations in the Federal Register in the near future. We will have to wait until then to find out what they say.

Administrative Law Judges (ALJs) have been concerned about the proposed regulations since they believe they will take away any control they have over their dockets. Social Security wants the regulations in order to force low producing ALJs to hold more hearings and generally to force ALJs to hold more hearings.

I sympathize with Social Security's desire to do something about extreme low producing ALJs. Many of the extreme low producers ought to find other employment or retire. However, I do not favor an effort to speed up ALJs generally. In fact, I think they are already trying to hear and decide too many cases. In my opinion, the process has already deteriorated significantly.

I am concerned that Social Security management has unrealistic expectations about the number of cases that an ALJ can hear and decide each month. Social Security disability cases, if reduced to current value, are worth about $400,000 each -- without considering the value of Medicare. If an ALJ is hearing 50 cases a month, he or she is ruling on $20 million of benefits a month or almost a quarter of a billion dollars a year. How much do we really want to speed up people who bear such a heavy responsibility?

I am also concerned that low producing ALJs will find it easy to circumvent Social Security's plans to schedule hearings for them by continuing hearings at the last minute. That will not be good for anyone.

Maybe I Should Have Kept My Mouth Shut

I reported earlier that Social Security planned to have a general signup this month in Raleigh for its "Representative Suite of Services," which allows attorneys and others who represent Social Security claimants online access to their clients' files. At this point, there are something like 200-300 attorneys and others being allowed to use this system but no general signup. I am now told that Social Security has decided against a general signup in Raleigh at this time. I do not know the reason. There are things in the system that I wish were designed differently but I have not noticed or heard of any significant glitches in the system. I think I would have heard if others were experiencing significant glitches.

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.