Indiana ALJs Want Tests For Malingering; SSA Not So Much

From a recent report by Social Security's Office of Inspector General (OIG)

We received a letter, dated August 1, 2009, from a former CE [Consultative Examination] provider who served as an independent medical source while performing psychological evaluations for the IN-DDB. [Indiana Disability Determination Bureau?] The CE provider raised questions about SSA’s [Social Security Administration's] CE process and claimed the Chicago Regional Office (RO) and IN-DDB discouraged the use of certain language as well as the term “malingering” when stating a medical opinion in a CE report.6 Malingering is a term used to describe individuals who intentionally pretend to have, or grossly exaggerate, physical or psychological symptoms for their own gain. ...

RESULTS OF REVIEW
SSA Headquarters and the Chicago RO [Regional Office] have not issued guidelines on suitable language for CE medical opinions and use of certain terms, such as malingering, in CE reports. Although the Chicago RO has preferences regarding suitable language in CE medical opinions, its expectations have not been formalized. Further, while SSA Headquarters does not encourage DDSs to purchase tests for malingering and the Chicago RO would like to cease procurement of these tests, the IN-DDB is still obtaining such tests at the request of administrative law judges (ALJ). ...

While SSA Headquarters’ guidance encourages the identification of malingering, it does not encourage the purchase of malingering tests for mental and psychological impairments. Under “CE Best Practices,” SSA Headquarters’ guidance states, “Do not purchase CEs that include tests for malingering.” The guidance also states, “. . . there is no test, when passed or failed, which conclusively determines the presence of an inaccurate patient self-report.” Related guidance states it is “. . . the observation and assessment of the claimant when challenged with various tasks, and using multiple records and observations from multiple sources, that allows the clinician to make meaningful inferences about a claimant, and the likelihood of malingering.” ...

We believe the IN-DDB’s process of allowing tests for malingering for ODAR, while discouraging the same tests for initial and redetermination cases, sends an inconsistent message to CE providers about SSA’s position on the appropriateness and usefulness of tests for malingering for mental and psychological impairments.

I think it is inappropriate to even talk about "tests for malingering" since there is no accepted "test for malingering." If there were, Social Security would have long since been using it. Supposed "tests for malingering" are sometimes used to try to defeat workers compensation or personal injury claims but they have not been validated and are not generally accepted in the medical community.

My experience is that there are a hell of a lot of Social Security disability claimants with undiagnosed somatoform disorders but not many who exhibit malingering.

Senate Fails To Pass Appropriations

From the Associated Press:

The Democratic-led Senate on Wednesday emphatically rejected a budget-slashing House spending bill as too draconian. It then immediately killed a rival Democratic plan that was derided by moderate Democrats as too timid in its drive to cut day-to-day agency budgets. ...

The GOP plan mustered 44 aye votes; the Democratic measure received just 42 votes, with 10 party members and liberal independent Bernard Sanders in opposition. Moderates Joe Manchin, D-W.Va., Ben Nelson, D-Neb., Bill Nelson, D-Fla., and McCaskill — each face potentially difficult re-election bids next year — were among those opposed to the Democratic version.

Update: There are straws in the wind suggesting that some very large multi-year agreement is in the works. Since this would be dependent upon the existence of some reservoir of good will between the parties, I am not going to get carried away with optimism.

Senate Appropriations Hearing Video Available

The video of today's hearing before the Senate Appropriations Committee is now available online. It was not available in streaming video as best I could tell.

Update: Commissioner Astrue was surprisingly vague when asked what part of Social Security would be closed if the government shuts down because of an appropriations impasse. Perhaps it was because the answer to the question is complex. Perhaps it is because the Administration would prefer to stay vague on this. There may be more public interest in what happens at Social Security than at any other agency. In any case, we do not know exactly what to expect at Social Security if there is a government shutdown on March 19.

Further update: The hearing featured an impromptu appearance by Nancy Shor, Executive Director of the National Organization of Social Security Claimants Representatives, when Marty Ford had trouble with questions about the Equal Access to Justice Act (EAJA). Ford's difficulty is not surprising since this is not an issue she would have had much exposure to. The House appropriations bill would have defunded EAJA for the rest of the fiscal year.

And a further update: ABC News reports on the hearing -- and, like Senator Shelby, conflates the issue of Social Security's long term financing with the immediate issue of the Social Security's administrative budget.

Commissioner Testimony On Appropriations

Michael Astrue has been testifying today before the Senate Appropriations Committee. His written remarks talk about about what is already happening because his agency is operating under a Continuing Resolution (CR) that freezes the operating budget at last year's levels and what will happen if this freeze continues:

Because of the uncertainty of our budget and the length of the CR, I have had to make choices that will begin to erode service. Our employees continue to churn out work, but they are disappointed and are becoming demoralized about the prospect of watching what they have worked so hard to achieve slip away. I regret that we may not be able to keep our commitments to the American people because we do not have the necessary funding to continue moving forward. ...

While we regret the resulting loss in service, we have tried to prepare for the CR. In July, we instituted a full hiring freeze for all headquarters and regional office staff, and then we further restricted hiring to allow only those components critical to the backlog reduction effort to replace staffing losses. Under a CR, we will continue – and likely expand – the hiring freeze. We will reduce or eliminate, overtime, which our front line employees depend on to keep up with their work.

We have decided not to open eight needed hearing offices, and we will not have staff to open our new Jackson, Tennessee Teleservice Center this year, and perhaps not even next year. We are discontinuing service in over 300 remote service sites throughout the United States. Most of these sites are contact stations housed in locations like libraries, senior centers, or other facilities where a Social Security employee travels, typically once or twice a month, to take applications for Social Security cards or benefits, as well as answer questions. We have also begun looking at field office consolidation where that decision makes fiscal sense.

Each year we send Social Security Statements to non-beneficiaries who are over age 25. These annual Statements cost us approximately $70 million each year to print and mail. In order to conserve funds, we will suspend the current contract and stop sending out these Statements.

The Commissioner also talks about what would happen if the appropriations bill passed by the House of Representatives, which would cut funding well below last year's levels, becomes law:

[T]here is a direct nexus between our funding and our service level. We want to prepare you for what a deep cut would mean. Our backlogs will skyrocket, and people will wait considerably longer to receive decisions. As our backlogs grow, it will become more difficult, expensive, and time-consuming for us to eliminate them. Waiting times in field offices and on our 800-number will increase dramatically. Deep cuts will cause billions of dollars of payment errors that will take years to address, hardly a wise use of taxpayers’ dollars. Even if we have specific funding for program integrity work, we need the people to do that work plus all of their other fundamental responsibilities. ...

I hope the House Appropriations Committee has a chance to hear this.

ODAR Always Follows FIFO Except When It Doesn't

Social Security's Office of Inspector General (OIG) was asked to do a study to determine whether the agency's Office of Disability Adjudication and Review (ODAR) has been following a First In First Out (FIFO) policy in reviewing claimants' requests for hearings. The report is now out. OIG was reassured by ODAR's regional management teams that ODAR was following FIFO "as much as possible." OIG was informed, truthfully, that there are many legitimate reasons not to review cases FIFO. As best I can tell from reading the report, OIG reviewed only 20 actual case files to see whether hearing offices were actually doing what its regional management teams thought they was doing. OIG concluded that they were.

A few thoughts: First, what in the name of goodness made OIG think they could find out anything about the situation by asking the regional management teams? If ODAR offices are diverging from FIFO, it is not happening at the regional level but at the individual hearing office level. Second, this study took 10 months and all OIG could do was to review 20 individual case files to see what is going on at ground level. On its face this seems grossly inadequate.

I cannot say how widespread the problem is but I see many dramatic departures from FIFO with no apparent justification. This report seems inadequate to me.

My understanding is that at the Department of Veterans Affairs (VA) appeals are assigned a serial number. Basically, VA does not go on to the next serial number until it takes care of the earlier serial numbers. I wish that ODAR were doing this.

"Protecting The Public And Our Employees In Our Hearing Process"

The Office of Management and Budget has just approved a regulatory proposal from Social Security. You can see all the information from the OMB website below but no summary of the proposal is available. It should appear in the Federal Register soon.

I know that Administrative Law Judges have been seeking to have a security guard in each hearing room but that would not require new regulations and is most unlikely to happen anyway. I am having trouble imagining what this proposal might contain.

AGENCY: SSA	RIN: 0960-AH29
TITLE: Protecting the Public and our Employees in Our Hearing Process (3702F)
STAGE: Interim Final Rule	ECONOMICALLY SIGNIFICANT: No
RECEIVED DATE: 01/18/2011	LEGAL DEADLINE: None
** COMPLETED: 03/07/2011	COMPLETED ACTION: Consistent with Change

Problems With Headquarters Security Guards Continue

A recent audit report by Social Security's Office of Inspector General (OIG) shows that the agency's problems with security contractors for its headquarters in the Baltimore region continue. The agency had been using USProtect but that company shut down after two former executives of that company were convicted of tax evasion, bribery and concealment of material information. A Vice President of USProtect became President of Paragon Systems which got a new contract for Social Security's headquarters security. Paragon hired many of the same personnel who had worked for USProtect. OIG's audit of Paragon's work shows serious deficiencies. Here is an excerpt:

Our audit work determined that Paragon was not complying with certain terms of the contract. We found guards were not following post orders as stated in the contract, and supervisors were not providing sufficient post inspection checks. There were excessive errors and discrepancies on the forms used to track post hours worked and account for firearms. These errors and discrepancies could indicate that posts were unattended. Our observations noted several instances where guards did not check the identification of people entering buildings; guards were gathered at posts involved in personal conversations and not focused on post duties; roving guards were not providing foot patrol; and guards were not following operating procedures for x-ray scanners and hand-held wand metal detectors.

The OIG report makes it clear that Social Security was already well aware that there were problems with Paragon.

The OIG report has drawn the attention of the Federal Times.

One wonders whether Social Security would be better off with federal employees providing security.

Cutting Federal Workforce Costs Money?

John Gravois writing in the Washington Monthly makes the case that reducing the federal workforce may actually cost more money than it saves:

The problem is that, as employers go, the federal government is in fact pretty exceptional. A corporation can shed workers and then revise its overall business strategy accordingly. A strapped city government can lay off a few street sweepers and then elect to sweep the streets less often. But federal agencies are governed by statutory requirements. Unless Congress changes those statutes, federal agencies’ mandates—their work assignments—stay the same, regardless of how many people are on hand to carry them out. ... “It raises the hairs on my neck when I hear people say we’ve got to do more with less,” says John Palguta, a vice president for policy at the Partnership for Public Service, a nonprofit focused on the government workforce. “The logical conclusion is we’re going to do more with nothing.” ...

[I]f Congress and the White House agree to substantial cuts in the federal workforce but don’t also agree to eliminate programs and reduce services, the end result could be more spending and deficits, not less. Strange as it may sound, to get a grip on costs, we should in many cases be hiring many more bureaucrats—and paying more to get better ones—not cutting their numbers and freezing their pay. Because in many parts of government, the bureaucracy has already crossed that dangerous threshold beyond which further cuts can only mean greater risk of a breakdown. Indeed, much of the runaway spending we’ve seen over the past decade is the result of our having crossed that line years ago—the last time there was a Democrat in the White House, a divided government, and calls for slashing the federal workforce in the air. ...

The average voter may imagine federal bureaucracies as overstaffed, full of people leaning on their rakes and sharpening their pencils. But the truth is, most agencies are, if anything, understaffed. The government has grown tremendously in its spending and scope since the 1960s, and the population of the nation has grown by a margin of 100 million people, but the size of the federal workforce has remained remarkably static at about 2 million. Since coming into office two years ago, the Obama administration has bumped up staff levels by about 100,000, in part through “in-sourcing”—bringing back into the civil service inherently governmental work that had been farmed out to contractors. If this leads to better management, it could well mean a stanching of some of the cost overruns and regulatory failures that have been causing the government to bleed red ink. Today’s mindless demands for austerity, however, could reverse this trend.