Proposal To Have AAJs Hold Hearings

     From a Notice of Proposed Rule-Making (NPRM) that will appear in tomorrow's Federal Register:

... We propose to clarify that an AAJ [Administrative Appeals Judge] from our Appeals Council may hold a hearing and issue a decision on any case pending at the hearings level under titles II, VIII, or XVI of the Act. Just as ALJs [Administrative Law Judges] have the authority to hold hearings on a variety of disability and non-disability claims, we would not limit the kinds of claims that AAJs could hear. AAJs would be required to follow the same rules as ALJs, and the hearings they hold would apply the same due process protections as hearings held by our ALJs. ...

     This is only a proposal. The public may comment on the proposal. Social Security must consider the comments. If the agency wishes to go ahead with final regulations, they have to submit them to the Office of Management and Budget (OMB) for approval. This is a process that ordinarily takes many months.
     I have heard recently that the Appeals Council is seeking "decision-writers." In the past, the category of employees reviewing Appeals Council filings and writing Appeals Council decisions has been called "analyst." Decision-writer is the job title for those writing decisions for ALJs. Hiring decision-writers makes sense if AAJs will soon start holding hearings but I don't see how that will happen, given the length of time it takes to go from the NPRM to final regulation stage. Could the AAJs start holding hearings under the framework of the current regulations?
     As a workload matter, this NPRM makes no sense. The ALJs are rapidly working off their backlog. I haven't seen any improvement in the Appeals Council backlog. I think you have to assume that there's something about ALJs that Social Security management doesn't like.
     By the way, this NPRM was cleared by OMB back in May. It's been sitting there, waiting for the Commissioner's approval for more than seven months. I don't think it's a coincidence that this gets published just before Christmas when it will get less attention.

Turning Them Down In Mississippi

     From the Meridian Star:

Amanda Evans sought Social Security Disability Income 20 years after being diagnosed with multiple sclerosis when her advancing condition made it more and more difficult for her to move around her Pearl home.

But it wouldn’t be until 2016, two years after applying, before an administrative law judge determined she was eligible for benefits. 

She had to go before a Social Security administrative law judge (the third level of appeal after initial claim and reconsideration). She had been denied on three separate initial applications and finally exercised her right of appeal on the third application. By then, she had to use a rolling walker to get into the courtroom. 

Evans said the judge looked at her and said, “I am so sorry that this has happened and no one has paid attention.” 

Her experience is not an uncommon one in Mississippi, which has the lowest rate of allowances for initial claims and reconsiderations among its neighboring Southern states, according to data from the Atlanta Regional office for the Social Security Administration.  ...

Mississippi also has a higher processing time for claims than what SSA considers reasonable, with the SSA field offices taking an average of eight days to determine financial eligibility for benefits, while the Mississippi DDS takes 76 days on average to make a medical decision. ...

Merry Christmas

Chrismas Eve Hearings To Be Rescheduled

     There were actually 175 Administrative Law Judge hearings scheduled for December 24 which surprises me. NOSSCR is reporting that those hearings will be rescheduled now that the agency will be shut down that day. 

     I think that scheduling hearings that day was asking for trouble.

Changes To Musculoskeletal Listings Move Forward

     Social Security has asked the Office of Management and Budget (OMB) to approve final changes to its musculoskeletal Listings used in determining disability. There has been considerable opposition to the proposal. We cannot know at this point what is in the final regulations. OMB will probably approve the proposal in the next few months at which point Social Security can finalize the process by publishing the regulations in the Federal Register.

Appropriations Bill Report

     The Social Security portions of the Committee report (Social Security part begins at page 157) on the Fiscal Year 2020 appropriations bill covering the Social Security Administration that has been passed by Congress:

The agreement includes an increase of $100,000,000 for SSA's base administrative expenses for additional hires and resources to improve public service at SSA field offices and direct service operations. 

Continuing Disability Reviews.-The agreement directs SSA to include in its next continuing disability review (CDR) report to Congress an evaluation of its CDR prioritization models and a cost-benefit analysis of how it uses estimated savings in determining which beneficiaries receive a full-medical CDR. Additionally, the agreement requests in the fiscal year 2021 Congressional Justification, the process by which SSA intends to pace its CDR workload to properly manage Limitation on Administrative Expenses funding.  

Disability Case Processing System (DCPS).-SSA is encouraged to engage with States to explore all possible options for modernization of the case processing system, to align with the needs of each State, so long as such options have similar or better functionality as DCPS, similar or lower costs to DCPS, and are consistent with Federal procurement and security standards. SSA should continue to provide regular updates on the effort to upgrade DCPS, including the cost and anticipated timeline of the project, and efforts by SSA to engage stakeholders, including any barriers to implementation.  

Disability Hearings Backlog-The agreement encourages SSA to include comprehensive information in its existing reports to Congress on the specific policies SSA has implemented, or has considered, to streamline the disability determination and adjudication process. When considering or implementing changes, SSA should ensure due process, and that applicants have a full and adequate opportunity to present their claims.  

Field Office Closures.-While SSA's Inspector General reviews decisions to close field offices, the Commissioner is strongly encouraged to take every action possible to maintain operations at the offices under review. SSA is expected to support front line operations. As part of the fiscal year 2021 Congressional Justification, SSA should include a plan to identify opportunities for improved field office operations. Finally, SSA is strongly encouraged to ensure its policies and procedures for closing field offices include at least 120 days advance notice to the public, SSA employees, Congress, and other stakeholders. Such notice should include a rationale for the proposed closure and an evaluation of the effects on the public and SSA operations.  

Mail and Printing Systems.-SSA is encouraged to consider and evaluate modernization of its mail and printing systems and contracts that could result in budgetary savings while improving fraud prevention. The agreement requests a briefing for the Committees within 180 days of enactment of this Act on current mailing and printing systems and contracts, including systems or contracts relating to Social Security Cards, and any ongoing efforts to modernize or otherwise improve such systems.

Medical Vocational Guidelines.-The agreement directs SSA to provide a report to the Committees within 90 days of enactment of this Act on its plan and timetable for updating and modernizing medical vocational guidelines and to engage appropriate Committees of jurisdiction prior to making any changes to such guidelines.  

Telework.-SSA is urged to develop a telework plan for Operations employees as quickly as practicable and to brief the Committees on the status of efforts to reinstate telework within 60 days of enactment of this Act.  

Video Hearings.-The agreement reiterates the language included under this heading in House Report 116-62, and directs SSA to provide an update in the fiscal year 2021 Congressional Justification detailing the extent to which SSA meets best practices outlined by the Administrative Conference of the U.S., and the extent to which SSA video hearings, policies, and practices are accessible to individuals with disabilities.  

Work Incentives Planning and Assistance (WIPA) and Protection and Advocacy for Beneficiaries of Social Security (PABSS).-The agreement includes $23,000,000 for WIPA and $7,000,000 for PABSS. 

     A few comments:

• This is mostly precatory language included in the report rather than language actually included in the bill itself. Nevertheless, it's unwise for any agency to ignore it.
• $100 million is a lot of money but it's nowhere near enough to cover increases in the cost of living. In real dollar terms this is a funding cut.
• Congress can order all the studies it wants but you're never going to be able to cut many people off disability benefits under a medical improvement standard. That's because few of them get better, a fact that many in Congress have trouble understanding but, then, there's a lot they don't understand about Social Security disability benefits.
• If Congress doesn't want field office closures, it ought to appropriate more money to the agency.
• I'm going to guess that some company wants a big printing and mailing contract with Social Security and got language into this report supporting them. That seems inappropriate to me.
• This demonstrates what a foolish decision it was to stop telework. How does it feel to get your hand slapped, Andrew Saul?

Merry Christmas

Offices Closed On Christmas Eve

     President Trump has signed an executive order closing federal offices on December 24.