[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
COMMISSIONER OF SOCIAL SECURITY'S PROPOSAL TO IMPROVE THE DISABILITY
PROCESS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SOCIAL SECURITY
and
SUBCOMMITTEE ON HUMAN RESOURCES
of the
COMMITTEE ON WAYS AND MEANS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 30, 2004
__________
Serial No. 108-64
__________
Printed for the use of the Committee on Ways and Means
U.S. GOVERNMENT PRINTING OFFICE
99-682 WASHINGTON : 2005
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government
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COMMITTEE ON WAYS AND MEANS
BILL THOMAS, California, Chairman
PHILIP M. CRANE, Illinois CHARLES B. RANGEL, New York
E. CLAY SHAW, JR., Florida FORTNEY PETE STARK, California
NANCY L. JOHNSON, Connecticut ROBERT T. MATSUI, California
AMO HOUGHTON, New York SANDER M. LEVIN, Michigan
WALLY HERGER, California BENJAMIN L. CARDIN, Maryland
JIM MCCRERY, Louisiana JIM MCDERMOTT, Washington
DAVE CAMP, Michigan GERALD D. KLECZKA, Wisconsin
JIM RAMSTAD, Minnesota JOHN LEWIS, Georgia
JIM NUSSLE, Iowa RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas MICHAEL R. MCNULTY, New York
JENNIFER DUNN, Washington WILLIAM J. JEFFERSON, Louisiana
MAC COLLINS, Georgia JOHN S. TANNER, Tennessee
ROB PORTMAN, Ohio XAVIER BECERRA, California
PHIL ENGLISH, Pennsylvania LLOYD DOGGETT, Texas
J.D. HAYWORTH, Arizona EARL POMEROY, North Dakota
JERRY WELLER, Illinois MAX SANDLIN, Texas
KENNY C. HULSHOF, Missouri STEPHANIE TUBBS JONES, Ohio
SCOTT MCINNIS, Colorado
RON LEWIS, Kentucky
MARK FOLEY, Florida
KEVIN BRADY, Texas
PAUL RYAN, Wisconsin
ERIC CANTOR, Virginia
Allison H. Giles, Chief of Staff
Janice Mays, Minority Chief Counsel
_____
SUBCOMMITTEE ON SOCIAL SECURITY
E. CLAY SHAW, JR., Florida, Chairman
SAM JOHNSON, Texas ROBERT T. MATSUI, California
MAC COLLINS, Georgia BENJAMIN L. Cardin, Maryland
J.D. HAYWORTH, Arizona EARL POMEROY, North Dakota
KENNY C. HULSHOF, Missouri XAVIER BECERRA, California
RON LEWIS, Kentucky STEPHANIE TUBBS JONES, Ohio
KEVIN BRADY, Texas
PAUL RYAN, Wisconsin
SUBCOMMITTEE ON HUMAN RESOURCES
WALLY HERGER, California, Chairman
NANCY L. JOHNSON, Connecticut BENJAMIN L. CARDIN, Maryland
SCOTT MCINNIS, Colorado FORTNEY PETE STARK, California
JIM MCCRERY, Louisiana SANDER M. LEVIN, Michigan
DAVE CAMP, Michigan JIM MCDERMOTT, Washington
PHIL ENGLISH, Pennsylvania CHARLES B. RANGEL, New York
RON LEWIS, Kentucky
ERIC CANTOR, Virginia
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Ways and Means are also published
in electronic form. The printed hearing record remains the official
version. Because electronic submissions are used to prepare both
printed and electronic versions of the hearing record, the process of
converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
__________
Page
Advisory of September 23, 2004 announcing the hearing............ 2
WITNESSES
McIntyre, Hon. Mike, a Representative in Congress from the State
of North Carolina.............................................. 7
Social Security Administration, Hon. Jo Anne B. Barnhart,
Commissioner................................................... 9
______
National Association of Social Security Management Associations,
Buffaloe, Ronald E............................................. 41
American Federation of State, County, and Municipal Employees,
Union of American Physicians and Dentists, Dann, Dr. C.
Richard,....................................................... 52
Social Security Advisory board, Daub, Hon. Hal................... 37
National Council of Disability Determination Directors, Everett,
Sheila......................................................... 56
National Association of Disability Examiners, Marshall, Martha A. 45
______
Association of Administrative Law Judges, Bernoski, Ronald G..... 102
Consortium for Citizens with Disabilities, Social Security Task
Force, Ford, Marty............................................. 70
National Treasury Employees Union, Chapter 224, Hill, James A.... 87
National Organization of Social Security Claimants'
Representatives, Sutton, Thomas D.............................. 79
Federal Managers Association, Social Security Administration,
Chapter 275, Zink, Laura....................................... 95
SUBMISSIONS FOR THE RECORD
American Bar Association, Robert D. Evans, letter................ 112
American Federation of Government Employees, AFL-CIO, Witold
Skwierczynski, statement....................................... 114
Arzt, Robin J., New York, NY, statement.......................... 120
Blackwell, Bryan S., Dothan, AL, letter.......................... 128
Employment and Training Administration, Emily Stover Derocco,
statement...................................................... 129
Federal Bar Association, Gary Flack, letter...................... 131
Jaituni, Sudhir, statement....................................... 134
Merrill, Jeff R., Seattle, WA, letter............................ 135
National Association of Disability Representatives, Framingham,
MA, James R. Shaw, statement................................... 136
Plumlee, Lawrence A., Dallas, TX, statement...................... 137
Schott, S.F., statement.......................................... 145
Social Security Disability Coalition, Linda Fullerton, statement. 145
York, Laurie L. Austin, TX, statement............................ 149
COMMISSIONER OF SOCIAL SECURITY'S PROPOSAL TO IMPROVE THE DISABILITY
PROCESS
----------
THURSDAY, SEPTEMBER 30, 2004
House of Representatives,
Subcommittee on Social Security,
Subcommittee on Human Resources,
Committee on Ways and Means,
Washington, DC.
The Subcommittees met, pursuant to notice, at 1:17 p.m., in
room 1100 Longworth House Office Building, Hon. E. Clay Shaw,
Jr. (Chairman of the Subcommittee on Social Security), and Hon.
Wally Herger (Chairman of the Subcommittee on Human Resources)
presiding.
[The advisory announcing the hearing follows:]
ADVISORY
FROM THE
COMMITTEE
ON WAYS
AND
MEANS
SUBCOMMITTEE ON HUMAN RESOURCES
CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
September 30, 2004
SS-11
Shaw and Herger Announce Joint Hearing on
Commissioner of Social Security's Proposal
to Improve the Disability Process
Congressman E. Clay Shaw, Jr. (R-FL), Chairman, Subcommittee on
Social Security, and Congressman Wally Herger (R-CA), Chairman,
Subcommittee on Human Resources, Committee on Ways and Means, today
announced that the Subcommittees will hold a joint hearing on the
Commissioner of Social Security's proposal to improve the disability
determination process. The hearing will take place on Thursday,
September 30, 2004, in the main Committee hearing room, 1100 Longworth
House Office Building, beginning at 1:00 p.m.
In view of the limited time available to hear witnesses, oral
testimony at this hearing will be from invited witnesses only. However,
any individual or organization not scheduled for an oral appearance may
submit a written statement for consideration by the Subcommittees and
for inclusion in the printed record of the hearing.
BACKGROUND:
In September 2003, during a hearing before the Subcommittee on
Social Security, the Commissioner of Social Security announced a
proposal to reform the disability determination process. The
Commissioner's goal is to enhance the agency's ability to make the
correct determination as quickly as possible on claims for Social
Security Disability Insurance (DI), and Supplemental Security Income
(SSI) benefits. The proposal also aims to help individuals with
disabilities return to work by establishing a number of new
demonstration projects. The Commissioner intends to implement the
proposal through the regulatory process once the Social Security
Administration (SSA) successfully converts from a paper to an
electronic disability claim folder.
Individuals with disabilities applying for Social Security DI or
SSI must first file an application online, via telephone, or in a local
SSA field office. From there, the application is forwarded to a
federally funded State Disability Determination Service (DDS) to
determine medical eligibility for benefits. If the case is denied, the
applicant may ask the DDS to reconsider the claim, and if the claim is
denied again, the applicant may request a face-to-face de novo hearing
with an Administrative Law Judge (ALJ) in the SSA's Office of Hearings
and Appeals. Applicants who are not satisfied with the ALJ's decision
may appeal their cases to the SSA's Appeals Council, and finally, to
the Federal courts. If an individual exercises all rights of appeal,
the SSA projects it would take over 1,100 days, on average, before the
individual receives a final decision.
The Commissioner proposes to reform the initial disability
determination process by establishing Regional Expert Review Units,
staffed by medical experts, to handle claims from individuals who are
clearly disabled. These ``Quick Decision'' claims would be earmarked by
the SSA's field offices, and would be sent directly to the Regional
Expert Review Units, bypassing the DDSs. State DDSs would continue to
handle all other claims, but the reconsideration step of the process,
currently performed by the DDSs, would be eliminated.
After the initial decision, the Commissioner would change the
process by allowing claimants to request a review by an SSA Reviewing
Official (RO). The RO could either approve the claim, or prepare a
recommended denial or a pre-hearing report. If the claim is denied by
the RO, the claimant could then request a hearing before an ALJ. While
the de novo hearing process would not change, the claimant's record
would be closed after the hearing, and the Appeals Council would be
eliminated. While some cases would be reviewed by an Oversight Panel of
two ALJs and one Administrative Appeal Judge, the decision rendered by
the ALJ after the de novo hearing would be the final agency action for
most claimants.
The Commissioner anticipates that these changes to the disability
determination system, along with the demonstration projects to help
people return to work, will reduce processing time by at least 25
percent, provide quick decisions to people who are obviously disabled,
improve accuracy and consistency in decisions, and remove barriers for
those who wish to return to work.
In announcing the hearing, Chairman Shaw stated, ``Since her term
began, Commissioner Barnhart has rightly made improving the disability
process one of her top priorities. Her proposal to improve service to
individuals with disabilities applying for benefits holds real promise.
In the last year, much feedback has been provided to the Commissioner
by key stakeholders. This hearing provides the opportunity for us to
learn more about the details of that feedback, and how the Commissioner
plans to move forward.''
Chairman Herger stated, ``As we all know, Social Security's
disability determination process is in need of improvement.
Commissioner Barnhart is to be commended for putting forward a plan to
make the process more accurate and efficient, and for focusing on
return-to-work initiatives. I look forward to learning more about how
this plan stands to benefit program applicants and recipients, as well
as taxpayers.''
FOCUS OF THE HEARING:
The Subcommittees will examine Commissioner Barnhart's proposal to
reform the disability determination process and to implement new
return-to-work demonstration projects.
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noted above.
Chairman SHAW. Good afternoon. Today, the Committee on Ways
and Means Subcommittees on Social Security and Human Resources
are holding a joint hearing to examine the Commissioner of
Social Security's proposal to reform the disability
determination process. The Social Security Administration's
(SSAs) Disability Insurance (DI) and Supplemental Security
Income (SSI) programs provide critical income support for
individuals with disabilities. Unfortunately, many people who
apply for these programs will experience a long wait, in some
cases 3 or more years, to learn whether they are eligible to
receive assistance. This wait can place crushing financial and
emotional burden on individuals with disabilities and their
families.
In January of 2003, the U.S Government Accountability
Office (GAO), designated Federal Disability Programs, including
the DI and SSI Programs, as ``high-risk.'' The GAO found that
the agency has difficulty managing its disability programs, as
evidenced by lengthy processing times, inconsistencies in
disability decisions across adjudicative levels and locations,
and challenges with implementing effective quality control
systems. Without change, these programs would likely worsen as
the baby boomers age and more individuals enter their
disability-prone years.
In response to these challenges, Commissioner Barnhart has
rightly made improving public service provided by SSAs
disability programs one of her highest priorities. The agency
is currently in the midst of an 18-month transition from a
paper to an electronic disability (eDIB) folder that began just
last January. Following this transition, the Commissioner has
proposed implementing a major reorganization of the disability
determination process. It is this latter proposal that we will
examine today.
Key components of this proposal include: a new quick
decision step to approve benefits for those who are obviously
disabled; centralized medical expertise; in-line as opposed to
end-of-line quality review; replacement of the reconsideration
step completed by the State disability determination agencies
with a review by a Federal reviewing official (RO) attorney;
closing the record after the hearing by an administrative law
judge (ALJ); and elimination of the Appeals Council step. The
Commissioner's proposal would change almost every facet of the
disability determination process and affect about 4 million
applicants a year. Changes of this magnitude must be thoroughly
vetted and studied in order to protect individuals with
disabilities and the American taxpayers.
Today, we welcome the Commissioner, who will tell us more
about the feedback she has received since premiering her
proposal before the Subcommittee on Social Security 1 year ago.
I look forward to learning how that feedback will shape
implementing regulations and the timetable for moving forward.
Following the Commissioner, the Subcommittees will hear from
representatives of the employees who must transform these ideas
into action, along with advocates for individuals with
disabilities, claimant representatives, and the Chairman of the
bipartisan Social Security Advisory board (SSAB) and former
Member of the Committee on Ways and Means, Hal Daub. Each of
these individuals and the organizations they represent have
carefully considered the Commissioner's proposal and have
offered thoughtful suggestions for change. We thank you for
your commitment to improving service provided through these
vitally important programs.
The disability determination process cannot continue to
operate the same as it has in the past. Too many vulnerable
individuals with disabilities are waiting too long for a
decision from SSA. The Commissioner has said her proposed
disability determination process will reduce the time between
an application and a decision by at least 25 percent, improve
accuracy and consistency in decisions, and remove barriers for
those who wish to return to work. We must give this bold and
ambitious plan the attention that it deserves. As I said, this
is a joint meeting, and now I would defer to Mr. Herger, the
Chairman of the Subcommittee on Human Resources.
Chairman HERGER. Thank you, Chairman Shaw. I would like to
take a moment to welcome Commissioner Barnhart and our other
witnesses to the hearing today. I am looking forward to hearing
comments on the disability determination process and ways to
improve it for all those involved. With that, I submit my full
statement for the record.
Chairman SHAW. Mr. Cardin?
Mr. CARDIN. Thank you, Mr. Chairman. Let me thank you for
holding this hearing. I particularly appreciate the fact that
this is a joint Subcommittee hearing between the Subcommittee
on Social Security and the Subcommittee on Human Resources.
Since I serve on both of the Subcommittees, it is nice to be
able to have one hearing and get credit for two attendances.
Chairman SHAW. You only get to speak once.
Mr. CARDIN. Oh.
[Laughter.]
I want to thank Mr. Matsui for yielding me his time as the
Ranking Member of the Subcommittee on Social Security, so I get
double time. Let me welcome all of our witnesses here today,
and particularly my colleague Congressman McIntyre from North
Carolina. It is a pleasure to have you here, and I know of your
interest and work in this area and bringing it to our
attention, and we certainly appreciate that.
Commissioner Barnhart, it is always a pleasure to have you
before our Committee, and we appreciate your leadership at the
SSA. Every Member of Congress knows about the problem we are
confronting on disability determination. All they need to do is
talk to the people in their district office, the number of
calls that we receive, the number of concerns about the length
of time for disability determinations, particularly those that
are on appeal. We know that there is frustration out there
because of the long time it takes in order to make a full
determination, particularly when the individual is in the
appeal process.
Now, I understand this is a very complex process, and we
all understand that. We want to get it done right, but we also
want the process to be streamlined. I particularly appreciate
the Commissioner's work on computerizing the entire files. I
find it somewhat surprising that we have not done that to date,
and I know that she has been fighting battles within the
Administration to move that forward, and we are making progress
in that area. I think that is absolutely essential to be done.
It still takes on average about 3 months for a decision on a
benefit application, and nearly a year in regards to those
cases that are appealed to the ALJ. That is a long time. They
are averages. Of course, there are people that are well beyond
that time period. It can take, in fact, several years if you go
through the entire process, and that is just too long, and we
need to be able to shorten that period of time.
We need to be able to do that and still maintain the
independence of the appeal process at the ALJ level. We do not
want to compromise the integrity of the independent appeal, and
we also want to make sure that this is still truth-seeking and
not an adversarial process so that we try to make the right
decisions. After all, fairness is the key here to treat all of
our people fairly within the system itself. I think that really
presents the challenges. You have 2.5 million applications for
disability that are filed every year, 2.5 million. We have
half-a-million claims that are appealed to the ALJ on an annual
basis. The backlog is more than is acceptable. We understand
that. The Commissioner has attempted certain demonstration
projects in order to test some ways of getting people through
the process faster, as well as trying to get people back to
work, which is always our objective, those who can work. So, I
look forward to hearing from our witnesses today as we continue
our partnership in streamlining the process to make it more
efficient for the people who depend upon disability income, and
to make sure that we do this in the fairest way. Thank you, Mr.
Chairman.
Chairman HERGER. Thank you. Now I would like to introduce
our first witness, who is a Member of Congress, the Honorable
Mike McIntyre, Representative from the State of North Carolina.
Congressman McIntyre, I thank you for your involvement. I
understand in your private practice you have been involved with
this, and also you have legislation before us now.
Mr. MCINTYRE. Yes, sir.
Chairman HERGER. So, we invite you to present your
testimony.
STATEMENT OF THE HONORABLE MIKE MCINTYRE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. MCINTYRE. Thank you, Mr. Chairman, and thanks to all of
you for your time this afternoon. In very brief comments, I
want to say how much it is a pleasure to be with you today as
we discuss an issue that is of great importance, reforming the
Social Security disability determination process. As you just
mentioned, before I came to Congress, I represented several
individuals in Social Security disability cases in my hometown
as their attorney in Lumberton, North Carolina, and throughout
Robeson County. Time after time, I saw the flaws in the current
system. I saw the hurting citizens suffer needlessly. I saw
claimants forced to wait and wait and wait several months for
an appeal that ultimately results in a second denial from the
exact same agency that denied their first claim.
Throughout my time here in Washington, I have continued to
hear these concerns from constituents and caseworkers in both
my Washington and North Carolina offices. In fact, my District
Director of Constituent Services, Marie Thompson, who has a
passion for these issues and the individuals affected by them,
knows too well the headaches that many claimants face on a
repeated basis. In fact, she is currently, as my District
Director, working on over 200 cases that will take literally
years to finalize, given the current process.
In addition, the 3 caseworkers in my office handling Social
Security cases are assisting approximately 500 of our
constituents who have cases now pending. Many of these
constituents have already waited for over a year for a decision
while others are just beginning a process they know may be long
and, indeed, agonizing. A larger number of these claimants are
from single-income homes who now have no income at all with
which to support themselves and their families, thus just
exacerbating the situation. Many face increasing medical bills,
while others simply are unable to receive needed medical care
because they have no money and no health insurance. Others will
watch as another family member struggles to earn enough money
to keep the family just barely afloat while waiting. There will
be families faced with mounting past-due bills and
disconnection of utilities, basic quality-of-life issues for
anyone. Yes, there will be those who will indeed lose their
homes in which they live while they are simply waiting. All of
this occurs while they battle a condition or an illness which
keeps them from working, and, unfortunately, there will be
those who will even lose that battle while they wait.
To address these concerns, I introduced a bill earlier this
year that would reform the disability determination process by
eliminating the first level of appeal. This level, known as
reconsideration, is redundant, and eliminating it will save
time and resources and unnecessary delay. I am pleased that
Commissioner Barnhart and her staff have included the
elimination of this phase, known as reconsideration, in her
proposal to reform the disability claims system.
As someone who has worked on this issue on a personal and
professional level before coming to Washington, and now over
the last years on a congressional level, I am committed to
ensuring that the Social Security disability determination
process is reformed and is fair to all concerned. Therefore, I
offer my support and my willingness to work with Commissioner
Barnhart and Members of both of these Subcommittees represented
here today on these issues. It is indeed time that we in
Congress work to make real reform, so that our constituents can
finally receive the benefits that they deserve. Reforming this
broken process is the next step to bringing real relief to
claimants who truly deserve disability benefits and who truly
do not need to face another unnecessary delay. Thank you,
thanks to both of you, to your Subcommittees and the Committee
in general. I thank you, gentlemen, and may God bless you in
your kind consideration of literally this life-changing matter
as we consider these important issues involving Social Security
reform.
[The prepared statement of Mr. McIntyre follows:]
Statement of The Honorable Mike McIntyre, a Representative in Congress
from the State of North Carolina
Mr. Chairman, Ranking Member, and fellow colleagues: It is a
pleasure to be here today as we discuss an issue that is of great
importance--reforming the Social Security disability determination
process.
Before coming to Congress, I represented several individuals in
Social Security disability cases as an attorney in my hometown of
Lumberton, North Carolina. Time after time, I saw the flaws in the
current system. I saw the hurting citizens suffer needlessly. I saw
claimants forced to wait several months for an appeal that ultimately
results in a second denial from the same agency that denied their first
claim.
Throughout my time in Washington, I have continued to hear these
concerns from constituents and caseworkers in my Washington and NC
district offices. My District Director of Constituent Services, who
flew up from NC and is here today because of her passion for this
issue, knows too well the headaches that many claimants face on a
repeated basis. In fact, she is currently working on over 200 cases
that will take years to finalize.
In addition, the three caseworkers with my office handling Social
Security cases currently are assisting approximately 500 of our
constituents who have cases pending. Many of these constituents have
already waited for over a year for a decision while others are just
beginning a process they know may be long and agonizing. A large number
of these claimants are from single-income homes who now have no income
at all with which to support themselves and their families. Many face
increasing medical bills, while many others simply are unable to
receive needed medical care because they have no money and no health
insurance. Others will watch as another family member struggles to earn
enough money to keep the family just barely afloat during the wait.
There will be families faced with mounting past-due bills and
disconnection of utilities. And, yes, there will be those who will lose
the homes in which they live. All of this occurs while they battle a
condition or illness which keeps them from working. And, unfortunately,
there will be those who will even lose that battle during the wait.
To address these concerns, I introduced a bill in July that would
reform the disability determination process by eliminating the first
level of appeal. This level, known as reconsideration, is redundant,
and eliminating it will help to save time and resources. I am pleased
that Commissioner Barnhart has included the elimination of
reconsideration in her proposal to reform the disability claims system
as well.
As someone who has worked on this issue on a personal level, I am
committed to ensuring that the Social Security disability determination
process is reformed and is fair to all concerned. Therefore, I offer my
support and willingness to work with Commissioner Barnhart and Members
of the two subcommittees represented here today on these issues. It is
time that we in Congress stood up and worked to make real reforms so
that our constituents can finally receive the benefits they deserve.
Reforming this broken process is the next step to bringing real relief
to the claimants who truly deserve disability benefits and who truly do
not need to face any further delay! Thank you, and may God bless you in
your kind consideration of this important matter!
Chairman HERGER. Any questions?
Mr. CARDIN. Mr. Chairman, let me again thank my colleague.
We have the benefit of having Mr. McIntyre's advice that we can
seek while we deal with this issue. I think his practical
experience particularly in his former role is going to be very
helpful to this Congress as we try to confront these issues.
Once again, let me thank you for appearing here today before
our Committee, and I assure you that we look forward to working
with you as we try to deal with these issues.
Mr. MCINTYRE. Yes, sir. We will be available as necessary.
Thank you. Thank you, gentlemen.
Chairman HERGER. Thank you.
Chairman SHAW. Before you leave, I just also want to
compliment you for your statement. It is good to have somebody
here who is one of us, and has the experience of being one of
them and has confronted many of these things. Our Subommittee,
for the 6 years that I have been Chair, has been examining and
re-examining ways that we can change the system, and I think in
a bipartisan way we want to do that so that we can get a quick,
decisive decision for people that are probably tremendously
fragile.
Mr. MCINTYRE. Yes, sir.
Chairman SHAW. So, your view is valuable to the Committee.
Thank you.
Mr. MCINTYRE. Thank you. Thank you, gentlemen.
Chairman SHAW. The next panel of one is the Honorable Jo
Anne Barnhart, the Commissioner of the SSA. We are pleased to
again have you before the Committee and are looking forward to
your testimony. Ms. Barnhart.
STATEMENT OF THE HONORABLE JO ANNE B. BARNHART, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION
Commissioner BARNHART. Thank you very much, Mr. Chairman.
Chairman SHAW. I don't know that your microphone is on.
Commissioner BARNHART. Can you hear me now?
[Laughter.]
Chairman SHAW. We can hear you now.
Commissioner BARNHART. Thank you very much, Mr. Chairman.
Chairman Shaw, Chairman Herger, Mr. Cardin, and Members of the
Subcommittees, it is really a pleasure to appear before you
today to discuss my approach for improving the Social Security
disability determination process. I always welcome the
opportunity to appear before this Committee because I so
greatly appreciate your ideas and insights as well as your
consistent support for our agency. I am doubly pleased to be
here today because it was before you that just about a year ago
I first described my vision for an improved disability system,
and it is particularly nice to go after Mr. McIntyre, who
actually endorses one aspect of my proposal.
Today I would like to update you on how we are proceeding
to convert my approach into a detailed plan and ultimately into
an effective process to make the right decision as early in the
process as possible. I know that your Subcommittees are
painfully aware
of the length of time that claimants have to wait for an
initial determination or an appeal. In fact, it was the subject
of many of your opening comments. Delays in the current system
occur in spite of the best efforts of the dedicated public
servants in the SSA and in the State Disability Determination
Services (DDSs), who are such a vital part of our agency's
work.
We have moved forward in several areas: we are implementing
the eDIB process, which provides the infrastructure that is
needed to support the new approach; we have conducted a massive
outreach effort to obtain comments on the current system and
the new approach, and we are giving thoughtful consideration to
all of them; we are conducting an exhaustive study of all the
issues. The Disability Service Improvement staff that I created
is located organizationally in my immediate office, and it is
coordinating this effort, making sure that we have all the
information that we need to make decisions.
Before I go any further, I do want to take this opportunity
to emphasize that the new approach is just that. It is an
approach or an outline. I have made no final decisions on how
to implement it. Everyone I speak with understands the urgency
of the need to improve the disability process; because this is
such an important program and because it is so complex, as you
have indicated and acknowledged in your opening statements, I
really needed time to listen to the people involved at all
stages of the process, both outside of and within the SSA. I
have personally participated in 51 meetings with more than 35
organizations involved in the disability process, within our
agency and outside it. Among the hundreds and hundreds of
comments that we received, more than 500 came in through our
website from individuals. Many of those individuals were
themselves disability claimants or current recipients.
I am not going to take time here to describe my new
approach because it is summarized in my written testimony, and
I know you are all familiar with it. I would say generally the
approach has been well received. Certainly there are issues on
which there is not consensus, but every group that I have
talked to agrees on one thing, and that is that the current
system needs to be changed. I want to thank everyone who is
giving us the benefit of their views and sharing their
concerns. I would like to make a special note of the
cooperative and constructive attitude of all who have provided
comments, and especially the individuals and organizations that
I have met with personally. I really appreciate their
willingness to work with me to improve the disability process.
The comments that we have received have been extremely valuable
and have definitely shaped and are continuing to shape my
thinking. Many of the decisions are not going to be easy
because there are multiple considerations for each issue.
For example, when I developed the new approach, I
envisioned Regional Expert Review Units (RERU) to provide
specialized medical and vocational expertise for each step of
the process. A number of organizations and individuals have
raised excellent questions about how these units would work,
questions such as how to ensure that DDSs can access the
medical expertise they need; how these units could and should
be staffed; how to use specialized experts in cases of multiple
disabling conditions; and how experts in these units would
relate organizationally to the DDSs and to the Office of
Hearings and Appeals (OHA). Similarly, there is a wide range of
views as to where responsibilities for quick decisions should
reside. The new approach calls for field offices to send them
to the RERUs immediately after taking the application.
Virtually everyone we have talked to thinks the idea of a
quick decision process for the obviously disabled is a good
idea. My idea was to allow DDSs to concentrate more on
difficult cases by removing the obvious cases from their
workload. We have heard from a number of parties who think the
DDSs should handle the quick decision process. Eliminating the
Appeals Council is another element of the new approach that has
generated a large number of comments. Advocacy groups have
expressed concern about the effects of such a step, especially
because it means closing the record after the ALJ decision.
These groups have suggested there should be a provision for
good-cause exceptions. On the other hand, others fear that
eliminating the Appeals Council could lead to significantly
more cases being appealed to Federal court and, thus,
overwhelming the court system.
I cannot tell you today how I am going to resolve these
issues because, as I said earlier, I have not made decisions.
My task is to put together a cohesive package in which every
element of the process contributes to its effectiveness and
removes obstacles to our goal to make the right decision as
early in the process as possible. I expect to make decisions
relatively soon on the major issues so that we can put together
a proposed rule on the new approach by early 2005. Of course,
the draft proposed rule will be available for public comment,
and I expect that we will receive many comments that will be
very helpful. I look forward to the opportunity to hear these
Subcommittees' views as well. When I first described my
approach to you, I said that it would require having an eDIB
system fully implemented and in operation long enough for us to
identify and address any startup problems.
The new approach to disability claims processing can work
efficiently only when all components involved in disability
claims adjudication and review move to an electronic process
through the use of an eDIB folder. I am pleased to say eDIB is
right on schedule. Fourteen States have begun using the
electronic folder, and the first three electronic hearings were
held in Charlotte, North Carolina, in the last few weeks. I
know that moving to eDIB poses significant challenges for the
employees at SSA who are involved at all levels. I want to
publicly thank them for their dedication, their willingness,
and their hard work in making eDIB a success.
I would like to give special thanks to Butch McMillen and
Sheila Everett from the State of Mississippi. Under their
leadership, earlier this month Mississippi became the first
State to completely roll out the electronic folder, with all
disability examiners (DEs) now using the electronic folder, and
to thank our Regional Commissioner in Atlanta, Paul Barnes, for
his superb leadership in making Region 4 the first region to
lead the way for the Nation.
Finally, I would like to thank you, Chairman Shaw, Chairman
Herger, and the Members of the Subcommittees for your support
and your guidance. I really appreciate the relationship that we
enjoy, and I look forward to working with you and your staff as
we continue in our mutual efforts to improve the service
provided to disabled individuals and their families because
that is what this is all about. I will be happy to try and
answer any questions Members of the Committee may have for me.
[The prepared statement of Commissioner Barnhart follows:]
Statement of The Honorable Jo Anne B. Barnhart, Commissioner, Social
Security Administration
It is a real pleasure to appear before these two subcommittees
today to discuss my approach to improving the Social Security
disability determination process. I always welcome the opportunity to
appear before you because I so greatly appreciate your ideas and
insights as well as your consistent support for our agency. And I am
doubly pleased to be here today because it was before you that I first
described my vision for an improved disability system.
Today I would like to update you on how we are proceeding to
convert my approach into a detailed plan and, ultimately, into an
effective process to make the right decision as early in the process as
possible.
I know that these subcommittees are painfully aware of the length
of time claimants have to wait for an initial determination or an
appeal. And delays in the current system occur in spite of the best
efforts of the dedicated public servants in SSA and in the state
Disability Determination Services (DDS), who are such a vital part of
the agency's work. In fact, when I talk about SSA employees, I also
refer to those who work in the Disability Determination Services, or
DDSs.
Where We Are Now
We have moved forward in several areas:
We are implementing the electronic disability process,
which provides the infrastructure needed to support the new approach.
We have conducted a massive outreach effort to obtain
comments on the current system and the new approach and are giving
thoughtful consideration to all of them.
We are conducting an exhaustive study of all the issues.
The Disability Service Improvement staff, or DSI, located
organizationally in my immediate office, is coordinating this effort,
making sure that we have all the information we need to make decisions.
Before I go any further, let me emphasize that the new approach is
just that--an approach or an outline. I have made no final decisions on
how to implement it. Everyone I speak with understands the urgency of
the need to improve the disability process. But because this is such an
important program, and because it is so complex, I needed to take the
time to listen to people involved at all stages of the process, both
outside of and within SSA.
I have made an active personal role in this process one of my
highest priorities. For example, I have personally participated in more
than 40 meetings with more than 30 organizations involved in the
disability process--within SSA and outside the agency. Among the
hundreds and hundreds of comments we received were more than 500
comments on our website from individuals, many of them disability
claimants or recipients.
Elements of the New Approach
As I said a moment ago, the new approach is designed to make the
right decision as early in the process as possible. Another major
purpose is to encourage return to work at all stages of the system. I
made a decision early on, to focus on those steps that we can implement
through regulation rather than legislation.
The approach preserves some of the significant features of the
current system. Initial disability claims will continue to be handled
by SSA's field offices; DDSs will continue to adjudicate claims for
benefits; and Administrative Law Judges (ALJs) will continue to conduct
de novo hearings and issue decisions.
But there also are a number of important changes to the current
system:
A ``Quick Decision'' step at the earliest stages of the
claims process for people who are obviously disabled would allow their
claims to be decided within 20 days.
Medical expertise within Expert Review Units would be
available for decision makers at all levels of the process, including
DDSs and the Office of Hearings and Appeals (OHA).
The DDS reconsideration step would be eliminated.
A Reviewing Official (RO) position would be created
within SSA to evaluate claims appealed from the DDS. The RO could allow
a claim or agree with the DDS decision.
The Appeals Council step would be eliminated. The ALJ
decision would be the agency's final action, unless the case was
selected for review by an Oversight Panel of ALJs and an AAJ.
The lynchpin of quality assurance under the new approach is
accountability and feedback at each level of the process. At all
levels, the quality process would focus on denials as well as
allowances, and concentrate on ensuring that cases are fully documented
at each stage. This last point is crucial because I believe that better
documentation will allow cases to move through the system more quickly
and will produce better decisions.
The new approach would be workable only when SSA's electronic
disability system--which we call e-Dib--is fully functional so that a
claimant's file could be accessed by those working on the case anywhere
in the nation. I'll discuss that in more detail a little later.
We also are working on several demonstration projects to encourage
voluntary return to work. I believe these projects will let us learn a
great deal about how to expand beyond the incentives in the Ticket to
Work program that your Committee was so instrumental in creating.
Reaction to the New Approach
I began my presentation by describing our outreach to hear the full
spectrum of views and concerns from those who are involved at every
step of the process. Generally, the approach has been well received.
Certainly, there are issues on which there is not consensus. For
example, the two most common comments we have received on the Reviewing
Official step are that the reviewing official does not need to be an
attorney and that the reviewing official absolutely should be an
attorney. But every group I've talked to agrees that the current system
needs to be changed.
I want to thank everyone who is giving us the benefit of their
views and sharing their concerns. The comments we received have been
extremely valuable and have definitely shaped my thinking. Many of the
decisions will not be easy because there are multiple considerations
for each issue.
For example, when I developed the new approach, I envisioned
Regional Expert Review Units to provide specialized medical and
vocational expertise for each step of the process. A number of
organizations and individuals have raised excellent questions about how
these units would work--questions such as:
How to ensure that DDSs can access the medical expertise
they need;
How these units should be staffed;
How to use specialized experts in cases of multiple
disabling conditions; and
How experts in these units will relate organizationally
to the DDSs and OHA.
Similarly, there is a wide range of views as to where
responsibilities for Quick Decisions should reside. The new approach
calls for field offices to send them to the Expert Review Units
immediately after taking the application. Virtually everyone we've
talked to thinks the idea of a quick decision process for the obviously
disabled is a good idea. My idea was to allow DDSs to concentrate more
on difficult cases by removing the obvious cases from their workload.
But we've heard from a number of parties who think the DDSs should
handle the Quick Decision process.
Eliminating the Appeals Council is another element of the new
approach that has generated a large number of comments. Advocacy groups
have expressed concern about the effects of such a step--especially
because it means closing the record after the ALJ decision. These
groups have suggested that there should be a provision for good cause
exceptions.
On the other hand, others fear that eliminating the Appeals Council
could lead to significantly more cases being appealed to Federal court,
and, thus, overwhelming the court system.
I cannot tell you how I will resolve these issues because I have
not made decisions. My task is to put together a cohesive package in
which every element of the process contributes to its effectiveness and
removes obstacles to our goal to make the right decision as early in
the process as possible.
What Next?
I expect to make decisions relatively soon on the major issues so
that we can put together a proposed rule on the new approach by early
in calendar 2005.
Of course, the draft proposed rule will be available for public
comment. I expect that we will receive many comments that will be very
helpful. And I will look forward to the opportunity to hear your views.
Advancements in Systems Technology
When I first described my new approach to you, I said that it would
require having the Electronic Disability System that we call eDIB fully
implemented and in operation long enough for us to identify and address
any startup problems. The new approach to disability claims processing
can work efficiently only when all components involved in disability
claims adjudication and review move to an electronic business process
through the use of an electronic disability folder.
I am pleased to say that eDIB is right on schedule.
As you know, SSA field offices throughout the agency are now using
the Electronic Disability Collect System (EDCS) that provides DDSs an
electronic folder. In the DDSs, we rolled out eDIB in January 2004
starting in Jackson, Mississippi, and implementation has begun in 14
states. We expect this process to be complete by June 2005.
The Office of Hearings and Appeals (OHA) has begun using the new
Case Processing and Management System. CPMS is a new software system
for processing cases and managing office workloads in the OHA. CPMS is
a replacement system and will provide OHA with the ability to work with
the electronic file.
When these electronic processes are fully implemented, each
component will be able to work claims by electronically accessing and
retrieving information that is collected, produced and stored as part
of the electronic disability folder. This will reduce delays that
result from mailing, locating, and organizing paper folders.
I know that moving to eDIB poses significant challenges for the
employees at SSA who are involved at all levels. And I want to publicly
thank them for their dedication and hard work that is making eDIB a
success.
Conclusion
I'd like once again to thank Chairman Shaw, Chairman Herger and the
members of these subcommittees for their support and guidance. I look
forward to working with you and your staffs as we continue our mutual
efforts to improve the service provided to disabled individuals and
their families.
Chairman SHAW. Commissioner, you propose to establish RERU
which would centralize the medical expertise to make it
available to decisionmakers across the country. More detail is
needed in terms of whether these experts will replace current
personnel or whether they will be doctors or nurses, or both,
and what their role would be. My question is: your proposal to
reform the disability determination process would create new
medical expert units located in Social Security regional
offices. Would you agree that on-site doctors at the State DDSs
currently provide essential services, including reviewing
cases, training, preventing fraud, and working with other
doctors in the State to bolster the medical evidence at a lower
cost?
Commissioner BARNHART. Let me say, Mr. Chairman, what I
believe is at the root of your question is the idea that we
want to have the best possible medical expertise all through
the disability determination process. My goal in the new
approach was to augment or fill in gaps that may exist in our
existing medical expertise. We have very hardworking MCs across
the country in our DDSs. When you look at the cases that come
in to the DDSs, not always is the right set of medical eyes
looking at those cases. Let me give you an example. Doing an
inventory of the MCs that we have, 2.5 percent of our MCs are
orthopedic doctors, yet over 20 percent of the cases that we
decide on an annual basis deal with orthopedic issues. I think
the medical personnel should reflect and certainly have the
expertise to be able to handle the types of cases that are
coming in.
In one State that I visited earlier this year, I spoke with
a pediatric oncologist at a DDS, and I said, ``How many of the
cases that you do have to do with pediatric oncology?'' He
said, ``About 20 percent.'' I said, ``Well, in the new approach
I want to change that. I want to make sure you are looking at
80 percent pediatric oncology cases and that we are using your
expertise to make the right decision as early as possible.'' I
have read all the testimony of the other witnesses that are
appearing here today, and I am aware of the concerns that have
been expressed, and the basis of the Chairman's question, and I
would say this: my goal is to improve the availability of
medical service. In the new approach, I recommended RERUs. As a
result of the back-and-forth discussions that I have had with
various interested parties over this last 12 months, I am
looking at the possibility of having doctors in the DDSs
provide service to other DDSs. If you are a pediatric
oncologist in one State, maybe you can help with pediatric
oncology cases coming in from another State. There are a number
of issues that need to be dealt with: State licensure
requirements for physicians, reimbursements between one State
and another. So, I think that we will get to the right place in
terms of making sure that we take the greatest advantage we
possibly can of our existing medical expertise, but at the same
time fill in the gaps that may exist.
Chairman SHAW. Is State licensing a problem?
Commissioner BARNHART. Well, the issue there, Mr. Chairman,
as I have been advised by the medical commenters we have heard
from, is that you get licensed to practice in a particular
State, and so you might, let's just say you are in the State of
Delaware, my home State, and we are asking you to look at cases
from Pennsylvania, we have to look at what the implications are
of doing that and whether we have to address any State
licensure issues.
Chairman SHAW. I wonder whether examining a patient and
testifying would be practicing medicine in another State if you
are under the guidance of the court.
Commissioner BARNHART. Those are the kind of issues that we
are looking at, Mr. Chairman, and I will be happy to keep the
Committee apprised as we identify the correct answers and
resolve some of those operational issues.
Chairman SHAW. It would be helpful if that is not an
impediment, but you mentioned the specialty of doctors. What is
the predominant specialty of the doctors that are now
testifying or doing reviews?
Commissioner BARNHART. You know, I did not bring the
listing with me, but I would be happy to submit the inventory
that we did to the Committee for the record.
Chairman SHAW. I would appreciate it. I think that is
important.
[The information follows:]
As of May 2004, there were 2,136 Medical Consultants on staff
within DDSs. Of those, 1,700 (80 percent) were less than full time.
------------------------------------------------------------------------
Percent of DDS Percent of DDS
Clinical Specialist MCs* Workload**
------------------------------------------------------------------------
Cardiologists 1.70 6.70
Child Psychiatry 0.60 0.50
Child Psychology 0.01 3.70
Endocrinologists 0.20 3.80
Family Practice 6.80 0.00
Gastroenterologists 0.30 2.40
Internists 6.30 6.30
Neurologists 1.90 6.80
Oncologists 0.30 4.70
Orthopedists 2.50 19.90
Pediatricians 9.80 0.90
Psychiatrists 10.70 19.60
Psychologists 31.20 7.50
Pulmonologists 0.30 4.70
Rheumatologists 0.30 6.70
Other 17.09 5.80
------------------------------------------------------------------------
*Percentages weighted based upon full-time or part-time status as of May
2004.
**Workload percentages are based upon primary impairment only for FY
2003.
__________
Chairman SHAW. Are you eliminating some of the on-site
doctors, and are you replacing some of them with nurses?
Commissioner BARNHART. We have not, well, first of all, we
have not done anything. I was laying out an approach of how we
might get at the medical gaps that exist. I am listening to the
comments. We have gotten a number of papers in from DDSs, and
some of the witnesses today are going to speak to that fact,
from the National Association of Disability Examiners (NADE)
and from the National Council of Disability Determination
Directors (NCDDD), as well as the medical consultant who is
going to testify. We have talked with all those groups
ourselves, and so we are looking at how we address the concerns
that they have raised.
Chairman SHAW. Thank you. Mr. Herger?
Chairman HERGER. Thank you. Commissioner Barnhart, one of
the great satisfactions I have as I travel around my Northern
California district is to periodically be able to observe those
individuals who have disabilities that are out working and to
be able to witness the great sense of self-worth and
satisfaction that these individuals have of being involved in
the process. I know that while you are currently working on
improving the disability determination process, you also are
conducting demonstration projects to help these people with
disabilities be able to return to work. The idea that people
with disabilities can work rather than collect disability
benefits for years and years is an important concept that needs
to be made a more integral part of the Social Security
disability system. If you could, Commissioner, could you bring
us up-to-date on work-related demonstration projects and any
other progress that has been made in helping more disabled
beneficiaries be able to work?
Commissioner BARNHART. Yes. Let me say, first of all, I
share your strong belief that return-to-work issues are
extremely important in providing adequate services, and
incentives and removing disincentives in these programs to help
people with disabilities be able to continue to work or start
to work if they choose to do so is definitely a priority of
ours, and certainly the Ticket to Work legislation that was
passed several years ago with the leadership of this Committee
has made a big difference in terms of reorienting, I think, the
mission of the SSA in that regard.
As part of the new approach, I actually outlined four
different demonstrations that would not wait until an
individual was adjudged disabled but, rather, would start from
the very beginning of the process. Not to take the time to
explain each of them, they all looked at the central theme was
providing services and benefits earlier in the process to allow
people to continue working, not necessarily to go on full-time
disability benefits. I would be happy to provide a write-up of
those for the record again. None of those have actually started
yet, but we are in the process of working through in several
locations hopefully being able to start some of those as early
as next year.
I want to emphasize that all of those demonstrations, as we
contemplate them, would be voluntary. They are not mandatory.
It would be up to the individual person with disabilities to
make the decision if they want to avail themselves. The reason
for delay in some cases is we have to develop a predictive
model that would tell us whether people with certain kinds of
conditions and disabilities could be expected to improve, would
benefit from the kinds of services that we would offer in those
demonstrations. Right now we have been working with the State
of Florida, and the State of Florida, in my understanding, in
January intends to implement the Florida Freedom Initiative.
This is something that I know that, Chairman Herger, you have
an interest in, we talked about this I think this summer when I
testified before your Subcommittee, where we actually modify
SSI rules to allow, along the lines of individual development
accounts that have been created in the welfare system to
encourage people to go to work and to remove the disincentive
that occurs from accumulation of resources.
The Youth Transition Program is another demonstration that
is actually up and running. Six different States are involved
in that, Mr. Chairman, and this is very important because I
feel very strongly about this. In a prior life, I was the
Assistant Secretary for Children and Families and had a lot of
interaction with the foster care system and the whole issue of
when children age out of a particular program and oftentimes
there is a gap in service. The issue here is to make sure that
when children would age out of SSI for disabled children that
we have actually taken steps to help move them into making the
transition to work. So, I have a complete report I could submit
that details what is happening with every single one of our
demonstrations that I would be happy to submit for the record
in addition.
Chairman HERGER. Without objection, I would like you to do
that.
[The information follows:]
Updates of Demonstration Projects
Benefit Offset Demonstrations
Description: The Ticket to Work legislation requires the
Commissioner to ``conduct demonstration projects for the purpose of
evaluating . . . a program for title II disability beneficiaries . . .
under which benefits payable . . . based on the beneficiary's
disability, are reduced by $1 for each $2 of the beneficiary's earnings
that is determined by the Commissioner.''
The National Benefit Offset Demonstration will test a range of
employment support interventions in combination with a $1 reduction in
benefits for every $2 in earnings, with the goal of enabling more
beneficiaries to return to work and maximize their employment,
earnings, and independence. At the same time, we are developing plans
for a 4 state demonstration that could be run at a lower cost (and in
an earlier timeframe). Our intent is to gather information for the
national demonstraton.
Status: We plan to conduct this project in two distinct phases: an
initial four-state pilot project (Connecticut, Utah, Vermont, and
Wisconsin), and the national study. The purpose of the initial project
is to collect early information on the demonstration that will be
useful in developing the national study. We expect to enroll
participants in the four-state pilot by the end of the calendar year or
early in 2005. We awarded the contract for the national study on
September 30, 2004 to Abt Associates.
Early Intervention (EI)
Description: With the EI project, SSA will, for the first time,
conduct a demonstration focused on applicants. The concept underlying
the EI project is that providing services and supports as close to
disability onset as possible will enable individuals to remain in or
return to the workforce.
The project will offer interventions to a sample of Social Security
Disability Insurance (SSDI) applicants with impairments that may
reasonably be presumed to be disabling (i.e., they are likely to be
awarded SSDI benefits) and who are likely to return to work as a result
of the program. The interventions will include access to a wide range
of necessary employment services, a 1-year cash stipend equal to the
applicant's estimated SSDI benefit and Medicare for three years.
Status: SSA released a solicitation on the process demonstration
project on August 2, 2004. We hope to award a contract in November 2004
and begin enrolling participants in early CY 2005.
Disability Program Navigator (DPN)
Description: SSA and the Employment and Training Administration
(ETA) of the Department of Labor (DOL) are jointly funding
approximately 200 DPN positions in 17 states (Arizona, California,
Colorado, Delaware, Florida, Iowa, Illinois, Maryland, Massachusetts,
New York, Oklahoma, So,uth Carolina, Vermont, and Wisconsin in the
first year; and Mississippi, New Mexico, and Oregon in the second
year). DPNs operate in DOL's One-Stop Career Centers and provide
seamless employment services to individuals seeking to enter the
workforce. DPNs also provide an important link to the local employment
market and facilitate access to programs and services that impact the
success of individuals with disabilities who are seeking employment.
Status: The DPN project is in its second year of operation. In June
2003 DOL awarded cooperative agreement funding to 14 states to
establish DPNs. In June 2004, DOL continued funding to the 14 original
states and awarded funding to 3 additional states. DOL's technical
assistance contractor is conducting a process evaluation in all states
and will review and evaluate outcomes in selected states. SSA expects a
final report from the DOL contractor in fall 2005.
Mental Health Treatment Study (MHTS)
Description: The MHTS will focus on SSDI beneficiaries with mental
health impairments. It will test the effect of treatment funding on the
health and health-care/job-seeking behaviors of those beneficiaries.
The study intervention calls for SSA to pay for the costs of outpatient
mental health disorder treatments (pharmaceutical and
psychotherapeutic) and/or vocational rehabilitation that are not
covered by other insurance for those individuals.
Status: As a first step in a three-part process (design, pilot, and
larger demonstration), a pre-design contract was awarded to the Urban
Institute in September 2003. SSA and the Urban Institute have selected
a Technical Advisory Panel (TAP) (consisting of national experts on the
subject) to provide recommendations on demonstration interventions. The
first TAP meeting was held in June 2004 and the second meeting is
scheduled for late October 2004.
Homeless Outreach Projects and Evaluation
Description: Congress provided $8 million in both FY 2003 and 2004,
for SSA to conduct outreach to ``homeless and under-served
populations.'' SSA used this earmarked funding to establish the
Homeless Outreach Projects and Evaluation (HOPE) in support of the
President's initiative to end chronic homelessness within 10 years.
The HOPE initiative is focused on assisting eligible, chronically
homeless individuals in applying for Supplemental Security Income (SSI)
and SSDI benefits. The HOPE projects will help SSA to demonstrate the
effectiveness of using skilled medical and social service providers to
identify and engage homeless individuals with disabilities as well as
assist them with the application process.
Status: SSA awarded $6.6 million in cooperative agreement funding
to 34 public and private organizations in April 2004 and conducted an
Orientation Conference for the organizations in August 2004. We awarded
an evaluation contract on September 17, 2004.
Youth Transition Process Demonstration (YTPD)
Description: To further the President's New Freedom Initiative goal
of increasing employment of individuals with disabilities, in September
2003, SSA awarded cooperative agreements to six states (California,
Colorado, Iowa, New York, Maryland, and Mississippi) for the purpose of
developing service delivery systems to assist youth with disabilities
to successfully transition from school to work. During this critical
period of transition to adulthood, the services provided to youth with
disabilities can prepare them for postsecondary education, employment
and economic self-sufficiency.
The states will establish partnerships to improve employment
outcomes for youth ages 14-25 who receive SSI or Social Security
Disability Insurance (SSDI) payments on the basis of their own
disability. The projects will provide a broad array of transition-
related services and supports to SSI and SSDI applicants and children.
Status: The demonstration projects are at various stages of
implementation. Most projects currently are testing their designs while
others began pilots at the start of the 2004 school year. A technical
assistance contract was awarded September 30, 2004 to the Virginia
Commonwealth University. An evaluation solicitation will be released by
the end of the calendar year. The second year of funding for YTD
projects was awarded September 30, 2004.
State Partnership Initiative (SPI)
Description: SSA and the Rehabilitation Services Administration
(RSA) funded a combined total of eighteen demonstration states in 1998.
SSA provided 5-year funding to twelve states (California, Illinois,
Iowa, Minnesota, New Hampshire, New Mexico, New York, North Carolina,
Ohio, Oklahoma, Vermont and Wisconsin) to develop innovative projects
to assist individuals with disabilities in their efforts to reenter the
workforce. These awards helped states develop state-wide programs of
services and support for their residents with disabilities that
increased job opportunities for them and decreased their dependence on
benefits, including SSDI and SSI. California, Vermont, New York and
Wisconsin implemented SSI waivers to test alternative rules.
Status: The SPI projects are in the sixth and final year. Eleven of
the twelve states received no-cost extensions to phase out the projects
by the end of September 2004. As of August 2004, the states testing
waivers received no-cost extensions for three to nine months to
complete waiver closeout and outcome evaluations.
Florida Freedom Initiative
Description: The Florida Department of Children and Families has a
CMS waiver program which allows individuals to obtain cash instead of
certain Medicaid services to allow participants greater control in the
planning and purchase of supports and services. SSA has waived certain
SSI Program rules to allow our beneficiaries to participate in the FFI.
Status: SSA signed an IAA with ASPE/DHHS to provide $100,000 in
support of the evaluation activities.
Ongoing Medical Benefits
Description: This project will test the effects of providing
ongoing health insurance coverage to beneficiaries who wish to work,
but have no other affordable access to health insurance.
Status: The design of a national project is under development and
we expect to start a pilot project (focusing on HIV-AIDS) in 2005.
Interim Medical Benefits
Description: This project will provide medical benefits to
individuals with no medical insurance (no ``treating source'' evidence)
whose medical condition would likely improve with treatment. This
intervention will facilitate the development of the necessary
documentation for disability adjudication while providing the applicant
needed services.
Status: The projects still are in the preliminary stages of
development and no specific information is available at this time.
Accelerated Benefits
Description: These demonstration projects will provide immediate
cash and medical benefits for a specified period (2-3 years) to title
II disability applicants who are highly likely to benefit from
aggressive medical care. This 4-year project will provide immediate
access to both DI benefits and Medicare coverage by utilizing a
predictive model currently under development. This project was formerly
called the ``Temporary Allowance'' demonstration project.
Status: The projects still are in the preliminary stages of
development and no specific information is available at this time.
__________
Again, I thank you for working in that area, very important
to the lives of many people who want to be able to be
productive as well. So, thank you very much for your work.
Commissioner BARNHART. Thank you.
Chairman SHAW. Mr. Cardin?
Mr. CARDIN. Thank you very much, Mr. Chairman. Commissioner
Barnhart, again, welcome. I noticed several times that you
complimented the workforce at the SSA, and I just want to
underscore that. I have the opportunity frequently to visit and
see the workforce. I know how hard they work under extremely
difficult circumstances. The volume of work continues to
increase, and yet the additional resources for staff has not
really kept up. I very much appreciate your advocacy for
adequate support for the SSA.
Commissioner BARNHART. Thank you.
Mr. CARDIN. Just to follow up on Mr. Herger's point very
quickly, it would seem to me that one of the things we could do
to encourage people who are on SSI to be able to be gainfully
employed is to deal with the disregard, the wage earnings
disregard. That has not been changed in a long time from $65.
Commissioner BARNHART. That is right.
Mr. CARDIN. It seems to me that that may be one way that we
really could encourage people to work without the adverse
consequences if they are unable to maintain gainful employment.
Commissioner BARNHART. Certainly that is an issue that has
been discussed, periodically. I think it came up at the
Subcommittee hearing with you all this summer, and we would be
happy to provide any kind of technical assistance we can to you
or Members of the Subcommittee who are interested in looking at
that issue.
Mr. CARDIN. I have been told it has been over 30 years
since we made any adjustment on that.
Commissioner BARNHART. It has been a very long time.
Mr. CARDIN. It is time for that to keep up. Again, if we
really want to have a coordinated effort to try to encourage
people who can to work----
Commissioner BARNHART. If I may say, Mr. Cardin, that is
precisely the point of the Florida Freedom Initiative. One of
the waivers there, it waives that $65. I think that we will get
some good empirical evidence as a result of that demonstration
that may show us the effect it has.
Mr. CARDIN. That is good. Also, your demonstration
programs, at least some of the ones that I have looked at, will
also be providing other services to SSI recipients so that they
have some help in their effort to be gainfully employed, which
is one of the points that I really want to underscore. It is
one thing about cash assistance. It is another thing about
supplementing cash assistance with additional services so that
individuals can become more independent. So, I think that you
are going about that the right way, and we will wait to see
what, of course, they are voluntary, and I think that also is
helpful.
There are 36,000 elderly disabled refugees who will face
termination of their SSI benefits because of the 7-year
restriction that was imposed in law. The chief obstacle for
these individuals of maintaining their benefits toward becoming
citizens has been basically the time delays in these
applications being approved. The Administration has recommended
an extension. There is a bipartisan bill that I am part of in
Congress that would extend so these low-income refugees would
be able to continue their SSI benefits.
My reason for mentioning it at this hearing is that we are
anticipating that Congress will adjourn next week, and come
back for a session in the middle of November. I expect a rather
short session. I am just reaching out to you whether we can
find some vehicle, some way, some strategy to make sure that
before Congress adjourns this year that we extend that SSI
limitation; otherwise, we are going to be faced with thousands
of individuals being really subject to a hardship. There is
also, by the way, support in the U.S. Senate. So, we have broad
bicameral support.
Commissioner BARNHART. Yes, Mr. Cardin. I certainly agree
with you. As you stated, we have our own proposal for an
extension. I think yours allows one more year of extension than
ours. There are some other relatively minor differences. I feel
confident that if we got together, we could sit down and work
out some sort of agreement between us. I do agree that because
of the fact the clock is ticking for these individuals, it is
important that we take action. So, I would, certainly like to
extend the offer to work with your staff to do whatever we can
to make that become a reality before the Congress adjourns.
Mr. CARDIN. I appreciate that, and, Mr. Chairman, or Mr.
Chairmen, both, I just really want, I hope we can find a
vehicle. Again, this is bipartisan. The Administration supports
it. I am confident that our leadership would be prepared to
support a suspension bill if we cannot find another vehicle for
it to go forward on, and we are certainly willing to work out
the language between the Administration and the legislation
that is pending both in the House and the Senate. This should
be non-controversial. I would just hope that we would find a
way that we could move that before Congress adjourns this year.
Thank you.
Commissioner BARNHART. If I may mention, too, Mr. Cardin,
you may be interested to know that we at SSA will be doing an
annual notice to the individuals who are subject to that
provision to let them know the number of years that they have
left of eligibility so that they are aware that they need to
move to file for citizenship in the future.
Mr. CARDIN. The problem, of course, is that many have, and
it is in the, in fact, this is the leading cause. They have
applied for citizenship. It just takes a long time for the
process to work its way.
Commissioner BARNHART. Yes. I realize that.
Mr. CARDIN. Thank you.
Chairman SHAW. I would say to my friend from Maryland, by
way of a history on that particular piece of legislation,
without criticizing your position at all, it was that it was
originally 5 years, and then we figured that the people needed
an extra 2 years to complete the application for citizenship.
Maybe there is some middle ground for those that have already
applied or something of that nature. The whole thought was that
we don't want that to be a reason for people coming to our
shores, and that was the reason for that legislation.
Mr. CARDIN. I appreciate that, Mr. Chairman, and you are
absolutely correct. I would just bring to your attention that I
think the Administration has been convinced that the need for
the delay, for extending it is not because individuals were
delinquent in seeking citizenship. It is the process taking a
lot longer, and that is why the Administration suggested an
extension. That is why I think you have both houses and both
parties wanting to do this. So, I would just urge you to take a
look at the reasons why. It is not because these individuals
have not tried to become citizens. They have. It is just taking
longer than we had anticipated for I think some obvious
reasons, not least of which was September 11th.
Chairman SHAW. Well, if we are looking for inefficiencies,
I think the immigration process in this country is probably
about as inefficient as you could possibly get.
Mr. Lewis.
Mr. LEWIS OF KENTUCKY. Thank you, Mr. Chairman. Good
afternoon.
Commissioner BARNHART. Good afternoon.
Mr. LEWIS OF KENTUCKY. Our staff contacted the JCUS of the
United States (JCUS) to request their attendance at this
hearing, and they were unable to provide a witness, but they
did submit a letter, which is in each Member's packet. I would
like to request that be inserted into the record. This letter
highlights the fact that annually about 77,000 claimants
request review by the Appeals Council. In addition, last year
more than 17,000 disability cases were filed in U.S. district
courts. According to the letter, this suggests that a
substantial number of cases are being resolved at the Appeals
Council level without claimants' having to seek judicial
review. Commissioner, should you eliminate the Appeals Council,
what will be the impact on the U.S. district courts?
[The information follows:]
Committee on Federal-State Jurisdiction
United States District Court
Wheeling, West Virginia 26003
September 28, 2004
Honorable Frederick P. Stamp, Jr. Chair
Honorable Susan H. Black; Honorable Kathleen A. Blatz; Honorable Glen
H. Davidson; Honorable Charles E. Jones; Honorable Kermit V. Lipez;
Honorable Howard D. McKibben; Honorable James D. Moyer; Honorable
Michael R. Murphy; Honorable Robert E. Nugent; Honorable Loretta A.
Preska; Honorable Linda Copple Trout; Honorable Gerald W. VandeWalle;
Honorable Roger L. Wellman
Hon. E. Clay Shaw, Jr.
Chairman, Subcommittee on Social Security Committee on Ways and Means
United States House of Representatives B-316 Rayburn House Office
Building
Washington, DC 20515-6353
Dear Mr. Chairman:
I am the Chair of the JCUS Committee on Federal-State
Jurisdiction.The Committee is responsible for making recommendations to
the JCUS onproposals regarding the elimination, modification, or
creation of Federal jurisdiction. This advisory responsibility
encompasses proposed changes to the manner in which administrative
claims are screened and the posture in which they become subject to
review in Federal court.
I understand that the Subcommittee on Social Security will be
holding a hearing onSeptember 30, 2004, regarding the proposed
revisions to the disability claims process. Although the JCUS has not
adopted a formal position in response to the current proposal and
therefore is unable to provide a witness as requested by your staff, I
would like to take this opportunity to share with the Subcommittee the
status of the JCUS's consideration of this topic.
The Committee on Federal-State Jurisdiction is guided, as your
Subcommittee is certainly guided, by the principle that disability
claimants are entitled to a fair and prompt resolution of their claims.
The Federal courts have a role in pursuing that principle, albeit a
limited one. We intend to do what we can to work with you and
Commissioner Jo Anne B. Barnhart to make a positive contribution to the
Commissioner's current reform process.
In April 1994, the Social Security Administration (SSA) launched an
initiative to revise the administrative process governing Social
Security disability claims. At that time, the plan called for reducing
the number of decisional steps from four to two, including the
elimination of the requirement that a claimant request review by the
Appeals Council prior to seeking judicial review in Federal district
court. The resulting two-level administrative review process would have
consisted of (1) an initial disability determination by a ``disability
claim manager'' and (2) a hearing before an administrative law judge
(ALJ). Although the Appeals Council would have continued to exist, it
would have only been authorized to selectively review cases after they
had been filed in U.S. district courts.
In response, the JCUS determined to communicate to SSA its
seriousconcerns regarding the restructuring of the Appeals Council,
noting that the proposed role for the.Appeals Council could create
jurisdictional problems and could have significant caseload
ramifications. Report of the Proceedings of the JCUS of the U.S. at 38
(September 1994). Through its many communications to SSA over the next
several years, the judiciary urged serious reconsideration of the
proposed elimination of the requirement that a dissatisfied claimant
must request review by the Appeals Council prior to seeking judicial
review in the district court. The judiciary stated that the proposed
acceleration of district court review of disability claim denials was
likely to be inefficient and counter-productive. It pointed out that
while about one-third of claimants before the Appeals Council received
favorable relief at that stage (either through reversal or remand),
only approximately 10 percent of those appeals in which the Appeal's
Council granted no relief to the claimant were then submitted for
Federal judicial review. Thus, the JCUS felt that substituting
immediate access to the district courts prior to Appeals Council review
could potentially create a significant increase in the caseload of the
district courts. The judiciary encouraged SSA to seek to streamline and
expedite the Appeals Council review process rather than to bypass it.
The Conference also noted that the screening function performed by the
Appeals Council furthered consistency and accuracy of decisions within
SSA while lessening the need for claimants to pursue more costly review
in Federal district court.
Recognizing the importance of providing thorough review of benefit-
type claims at the agency level, the judiciary addressed this issue in
its 1995 LongRange Plan for the Federal Courts. That Plan supports
measures to broaden and strengthen the administrative hearing and
review process for disputes assigned to agency jurisdiction, and
to:Facilitate mediation and resolution of disputes at the agency level.
The Plan also supports efforts to improve the adjudicative process for
Social Security disability claims both by establishing a new mechanism
for administrative review of ALJ decisions and by limiting; the scope
of appellate review in the Article III courts. In addition, the Plan
recognizes that agencies need the requisite authority and resources to
review and, where possible, achieve final resolution of disputes within
their jurisdiction.
When Commissioner Barnhart announced in September 2003 plans to
restructure the disability claims process, our Committee began to
analyze her approach, to seek additional information, and to determine
whether another JCUS position was warranted. On February 12, 2004, the
Commissioner and her staff met with me and staff of the Administrative
Office of the U.S. Courts. In addition, on June 10, 2004, the
Commissioner met with our Committee, along with Martin H. Gerry, Deputy
Commissioner of the Office of Disability and Income Security Programs.
We: appreciate her efforts and those of her staff to take the time to
explain her ideas and to solicit comments from us.
Many of the details and components of the Commissioner's proposal
regarding initial agency operations are not directly within the scope
of our inquiry. As mentioned above, the JCUS has set forth a general
statement supporting measures to broaden and strengthen the
administrative hearing and review process for disputes assigned to
agency jurisdiction and to facilitate the resolution of disputes at the
agency level.
The Committee on Federal-State Jurisdiction is particularly
interested in the component of the Commissioner's current approach to
abolish the Appeals Council, thereby apparently allowing, although it
is not clear, ALJs' decisions to become the agency's final decision
subject to judicial review. (See 42 U.S.C. Sec. 405(g).) At the same
time, SSA intends to create a quality control entity to review certain
ALJ decisions. As we understand it, if a claim is selected for review
and the quality control staff disagrees with an allowance or
disallowance determination, the claim would then be referred to an
Oversight Panel (two ALJs and one administrative appeals judge), which
could affirm or reverse the ALJ's decision. In those instances, the
decision of the Oversight Panel perhaps would be the final agency
action. These are the details that we now have.
Under this proposal, however, it is unclear how the agency's
disability decisions would become ``final'' for purposes of judicial
review if an optional quality review stage existed. In addition, we do
not know what standards would apply in selecting; cases for the
proposed quality assurance phase and how often ALJ decisions would be
chosen for such optional review. These and other questions that our
Committee raised at the June meeting; and shared with the Commissioner
presently remain unanswered, possibly because those decisions have not
yet been made.
`We recognize that the Commissioner's efforts are directed toward
improving the administrative process so that more citizens receive an
accurate assessment of' their claim for benefits as soon as possible
and that management accountability can be strengthened. The
Commissioner apparently views elimination of the Appeals Council as
contributing to that goal. We have been informed by SSA that
approximately 77,000 claimants currently request review each year by
the Appeals Council, with approximately 2% of the claims being allowed
and 25% being remanded. During the last fiscal year, 17,127 Social
Security disability insurance and Supplemental Security Income cases
were filed in U.S. district courts. This suggests that a substantial
number of cases are being resolved at the Appeals Council level without
claimants having to seek judicial review. Therefore, before a decision
is made on whether to eliminate the Appeals Council, we would hope that
the new claims process would be adequately tested. It may be that
substituting Appeals Council consideration with judicial review in the
Federal courts would result in more costs and further delay for many
claimants.
I hope the Subcommittee on Social Security finds this information
helpful. If the JCUS of the United States takes action with regard to
the changes to the disability claims process now under discussion, the
Conference will promptly notify your Subcommittee.
Sincerely,
Frederick P. Stamp, Jr.
__________
Commissioner BARNHART. Well, let me say, as I indicated in
my opening statement, certainly this is an area where there has
been substantial concern expressed by many parties throughout
the system. I would like to mention that I had the opportunity
to work with the Subcommittee of the JCUS and actually did go
to New York and meet with them for several hours to answer
their questions, to present the new approach and answer their
questions. I saw the letter that the Conference submitted that
you requested be submitted to the record, and it absolutely
reflects the concerns they expressed to me, and it is this
issue of opening the floodgate, as they put it, of cases to the
courts. At the same time, I tried to use as a guiding point in
developing the new approach not only making the right decisions
as early in the process as possible and doing that, improving
the quality of the record at every step, but also making sure
that every step of the process added value to the process,
value particularly commensurate in terms of commensurate with
the delay that it produced in the time.
The Appeals Council now takes somewhere around 250 days to
complete its work. I would like to say that is a huge
improvement. When I came into this post, it took 447 days for a
case to go through the Appeals Council, so the staff there has
worked very hard and are really doing a good job in terms of
speeding it up. Even so, when one looks at the results of the
cases that are reviewed by the Appeals Council, what one sees
is 2 percent of the cases that move to the Appeals Council are
allowed, approximately 25 percent of the cases are remanded,
and the remainder of the cases are denied.
The remand one can say in large measure are due to mistakes
that were made earlier, inadequacies in the record, and
documentation, those kinds of things, all of which the new
approach seeks to address. We substituted at that stage of the
process an oversight panel which would conduct a full and
comprehensive quality review of all the decisions that are made
by the ALJs, allowances and denials both, not just one or the
other. Those recommendations and the findings of that quality
review unit go to an oversight panel comprised of ALJs and
administrative judges to make the final decision on whether or
not the case decision as rendered by the ALJ should stand or be
reversed.
I understand the concerns that the JCUS has, and I guess
when I talked to them, I tried to explain, and one of the
things I think is very difficult for all of us to do is when
you step back and look at the new approach, if you look at the
results we get today at each step of the process and simply
apply those to the new approach, then one would say it won't
make any difference. What I am suggesting is with the new
approach we will not see the same number of cases moving
through what we call the waterfall at each step. I am well
aware of the JCUS's concerns, and for that reason, as we move
to make final decisions, the whole issue of the Appeals Council
will be one that is taken very carefully.
Mr. LEWIS OF KENTUCKY. Thank you.
Chairman SHAW. Mr. Becerra?
Mr. BECERRA. Thank you, Mr. Chairman. Commissioner, thank
you very much again for being here. I think we always
appreciate your testimony because it is always spoken with a
lot of clarity, and not only that, it seems like a lot of
thought and I think a lot of caring involved as well. So, we
thank you for that.
Commissioner BARNHART. Thank you very much.
Mr. BECERRA. You seem to be one of those people who really
does know how to manage, and we appreciate that.
Commissioner BARNHART. Thank you.
Mr. BECERRA. A question regarding the streamlining of the
process. The concerns that are being raised by eliminating the
Appeals Council that, while we may be trying to accelerate the
process, we actually may be hurting ourselves because trying to
go from the ALJ hearing stage to the Federal district court is
not only a big step but an expensive step. If the courts are
correct in saying that it would bog them down, it could become
an even more tardy step in the process. Comments?
Commissioner BARNHART. Yes, thank you. That is a concern
that I have heard, and I appreciate you raising it here. The
emphasis is to make the right decision as early in the process
as possible, if we look at how the decisions fall out today,
approximately 40 percent, around 38 percent, I believe it is,
of disability claims are allowed at the initial DDS phase.
About 61 percent are allowed at the ALJ phase, 61 percent of
those that apply for appeal.
What I am trying to do is get the allowance level of the
cases that should be allowed higher earlier in the process, and
so with the RO that we have, creating the Federal position that
would be accountable to a single authority at the SSA, it would
improve consistency in decisions across the Nation at an
earlier point, because I do not envision ROs working on a
State-by-State basis. In fact, I think it is important they not
take cases on a State-by-State basis so that you know that you
are having more of a random assignment of cases to the ROs,
which makes it a national decision, not a State-based decision.
I think what we will see more cases that should have been
yeses decided at an early stage, at the RO, and then because of
the prep work that the RO does, the fact they have to issue a
prehearing report or a recommended disposition, and wherever we
come out there, because I know some of the advocacy
organizations say they just one report, they do not want a
prejudicial title, and I am sensitive to those concerns. When
that goes forward to the ALJ, it should allow the ALJ to have
the case better laid out for them in terms of looking at what
has happened to that point. So, I guess my . . .
Mr. BECERRA. Let me stop you for a second, Commissioner. I
sense what you are saying is that by improving the process up
front, we should be able to get better decisions from the ALJs
at the later stage and, therefore, we are able to then send
cases directly to the district court because we believe by that
stage we really will have a controversy that should be kicked
up to the highest level.
Commissioner BARNHART. That is exactly what I am trying to
say.
Mr. BECERRA. I have not had a chance to thoroughly review
your proposal, but having seen how the Federal courts work, it
is a very imposing process, and I think for the most we are
talking about claimants who are not very wealthy and who are in
a difficult situation. I suspect we are going to find that, as
imposing as it is to go before a reviewer or perhaps an ALJ in
an administrative hearing, which is very similar in every
respect to a court trial, it becomes extremely imposing on
people to go directly to a district court and very expensive.
We are constantly hearing from the district court judges, at
least in my 9th Circuit area in the district courts that we
have there, they are completely swamped. If we do end up with
the several thousand cases that you currently see going to
appeal from the ALJs going to the district courts, you could
see a logjam occur, which could become very difficult but, more
importantly, very expensive for the claimants to continue a
case in Federal court. So, I have not come to any conclusions
either, other than I sympathize with those who raise these
concerns that bypassing the process rather than trying to come
up with an even better streamlined review process of an ALJ
decision could lead to more difficulty than not.
Commissioner BARNHART. I appreciate what you are saying,
Mr. Becerra. I do. The concerns that you are expressing have
been echoed by others involved in this process, and obviously
they are concerns I take very seriously. I have greater respect
for the JCUS and certainly realize that whatever action is
finally taken, if it does not have the basic support of all
elements in the system, including the district courts, it is
not going to be a process that is headed for success.
Mr. BECERRA. Can I mention one other thing? Gosh, I wish I
had more time because I would love to talk to you about some of
these other aspects, because I think for the most part, I
really believe that you are trying to find those ways to
streamline the system and make it more consumer-friendly for
the claimants. I have a feeling you are going to really run
into trouble with the review process that you have for the
quality assurance, where some of the ALJ decisions, it seems
like you are saying after the ALJ, that is a final decision,
and the only recourse you now have is to go to the district
court. In some cases, you will have this quality review that
will occur where, indeed, if there is a problem that is found
by those who are part of this quality assurance committee, or
whatever it is called, you could actually see a different
decision come forward from that review, which leads to the
conclusion, and I will end with this, Mr. Chairman, that you
leave open the question for the courts at least to consider, if
you really have a final decision by an ALJ, if there really is
some other entity administratively that could still undo what
was done by the ALJ, so I think you are going to run into some
real issues about whether this is truly a final decision if you
have this quality assurance detour.
Commissioner BARNHART. I appreciate what you are saying.
The role of the oversight panel was actually to render the
final decision and make it actually, that would be the final
decision of the agency in the case where they decided based on
the quality review that the case needed to be decided
differently. To the point about which cases would be reviewed,
let me say that was one area that we were looking at because I
really have solicited comments from everyone I have talked to
about maybe what we should do is review all the cases that go
through, that go through serious----
Mr. BECERRA. You have an Appeals Council.
Commissioner BARNHART. Seriously, review all cases that go
through with a quality review, and then only the ones where the
quality reviewers see it differently than the ALJs saw it,
those go to the oversight panel, as opposed to doing a sample
of cases which then does not ensure that everybody is treated
the same. So, I appreciate the comment----
Mr. BECERRA. Believe me, everyone is going to want to go
through the quality review before they have to head to district
court, which in essence means you have some type of
administrative review before you go to the courts. Thank you,
Mr. Chairman, for being very gracious.
Chairman SHAW. You are most welcome. Mrs. Johnson?
Mrs. JOHNSON. Thank you very much, and welcome,
Commissioner Barnhart. First of all, I reread your testimony
from last year in preparation for this hearing, and it really
is impressive the degree to which you are really looking at the
nitty-gritty of how government has worked in the past and
trying to bring it into the modern era. It will certainly
improve the quality of service for our disabled people, but in
the end it will improve the quality of services as well. I was
curious about your interest in having the reviewers in your
central offices take over the role that currently the State
DDSs are playing. They apparently are doing about 20 percent of
the reviews of the quick decision cases now.
Why can't they do most of the quick decision cases? One of
the things that I think was really marvelous about your
proposal was this categorization of quick decision cases.
Nothing has been more anguishing to my caseworkers than in an
ALJ case or a child with cancer or clearly something that is an
open-and-shut case. Why can't those go to the State reviewers?
Why wouldn't that be faster, and why wouldn't it save us money?
Commissioner BARNHART. I appreciate your comments, Mrs.
Johnson. Perhaps I should back up and say my intent in moving
the quick decision out of the DDS in the new approach was to
take a workload away from the DDSs but to leave the resources
the DDSs currently have in the DDSs, because resources are an
ongoing concern, particularly with the increase in disability
claims that we have seen in recent years, and it is a trend
that continues this year as we are getting about 100,000 to
200,000 more claims than we had originally anticipated.
So, the idea was if we pull the quick decision workload
out, the DDSs where our more experienced and trained workers
are could focus on the more difficult cases. I recognize, of
course, in doing that, therefore, the allowance rate for DDSs
would go down because the easier cases, the obvious cases would
be done up front, and for that reason was going to combine the
quick decision allowance rate with the DDS allowance rate so
that it would not appear to the people in a given State that
all of a sudden the DDS was denying a larger number of people.
This is an issue that I have heard a lot from the NCDDD, as
well as NADE, and one of the things I am looking at is having
the units in the DDS do the quick decision. I will say this: in
my discussions with those organizations and their leadership, I
feel very strongly if we decide to go that route, it needs to
be a separate quick decision unit in the DDS, not that each DDS
worker can work some quick decisions cases, because I feel very
strongly that the focus of quick decision workers needs to be
the quick decisions. The idea is on the outside it would take
20 days for these decisions. Not an average of 20 days but
absolutely on the outside, and so I am discussing some of these
possible modifications within individuals from those
organizations.
Mrs. JOHNSON. Thank you very much. I do think the issue of
workload is terribly important, and there will be some areas in
which we can get resources into from our end more effectively
than other functions possibly. I do appreciate your continued
focus on what is going to be best for the disabled person.
Thank you very much. I appreciate your being here today.
Commissioner BARNHART. Thank you.
Chairman SHAW. Mr. Pomeroy?
Mr. POMEROY. Thank you, Mr. Chairman. Madam Commissioner, I
want to join the comments made by other panel Members about the
acknowledgment of your great work. For an agency head,
especially an agency whose work is so critically linked to so
many Americans all across the country, throwing yourself into
these management challenges with the competence you have
demonstrated has really been something to observe.
Commissioner BARNHART. Thank you very much.
Mr. POMEROY. I commend you for it. I want to specifically
acknowledge a couple things and ask you about another thing. On
telecommunication, I appreciate your expanding the disability
application process to include being able to relay through
videoconference over the telephone critically needed
information without requiring people in rural areas to come
vast distances. I believe these physical impediments to
bringing forward an application sometimes discouraged people
from pursuing that which they ought to and that which they need
to. It was a telling demonstration in Dickinson, North Dakota,
that you and I were able to observe on that point.
Commissioner BARNHART. Right.
Mr. POMEROY. Well done. Very important to rural America.
Secondly, and feel free, I think, to elaborate on the eDIB
renovation. I was not fully appreciative of the delays caused
by physical management of records in the disability process
until I had a chance to focus on it in a little more detail.
Lost records, shipping records back and forth, misplaced files,
all of these have, I believe, wreaked havoc on any untold
numbers of claimants if their file gets lost or a critical
piece of it gets lost. I think having it all move to an
electronic format is going to really do some good there, some
superb good there, and I am excited about it.
The last thing I would ask, and then I would like you to
comment, but I want to be able to explore this third one most
fully, and that is how you are coming on these ALJ judges. I
was alarmed to hear that the pending court challenge had
basically frozen everything in place on ALJs and your backlog
was in part you did not have the numbers of ALJs that you
needed to do that. You had a plan for bringing a number on
board, but that did require the Office of Personnel Management
(OPM) to also fully cooperate and execute their end of the
hiring process on ALJs. It is frustrating to not be able to
control that piece of the effort to get this area staffed up,
and I am interested in hearing from you in terms of how things
are coming between SSA and OPM in getting us to the numbers of
ALJs that we need. Thank you, and, again, it is a pleasure
working with you. You are doing a great job.
Commissioner BARNHART. Thank you very much for your kind
comments, Mr. Pomeroy, and I just want to say I really enjoyed
my trip to North Dakota. It is quite something to visit a
largely rural State like that, and with an expert on the State
pointing out the specific challenges that individuals in your
home State face in applying for our benefits and other
programs. With respect to video hearings, I simply want to say
I share your view. I think this is such an important new tool
for us. We have 120 video sites up and operating across the
counties, and we have a plan to move them out to all of our
major hearing officers.
Just as a point of information, we actually conducted in
the month of August, 953 video hearings, and the time
difference for a video hearing, and this is what is so
important and one of the points you were making. The time
difference is this: The processing time for non-video hearings
was 518 days. For video hearings, it was 352 days. So, we are
talking about making significant gains, and that was just for
the month of August. When I have annual data, I will be happy
to provide it to you and the Subcommittee for your review.
In terms of eDIB, as I mentioned, we are right on schedule
with eDIB. We said we were going to start in January of 2004,
and we started in January of 2004. The State of Mississippi and
the State of So,uth Carolina are both fully rolled out with
eDIB. I want to commend again all the States in Region 4, and
particularly the State of Florida who, despite the hurricane,
the many hurricanes, Mr. Chairman, we were talking about before
the hearing, went ahead and rolled out eDIB on September 20th
and did not ask for an extension. I think that speaks to the
confidence that the State DDSs have in this system.
We have run into issues. We have had glitches. You do with
any new computer program, obviously any automated system, and
we are fixing them. We are doing the same thing as we move on
to the OHA. We have just a few OHA sites, hearing offices up
able to use the electronic folder at this point, really at a
pilot stage, but with our new case processing management system
(CPMS), it has had some stumbles and trip-ups, too, since it
was rolled out earlier this year, but we are making changes. In
fact, several new applications to fix some of the issues that
have been identified by the users are going to into effect this
week. So, I think we are well on track with eDIB, and we
already have over 1 million documents stored in our eDIB
system.
Just to refresh everyone's memory, when this is up and
fully operational, it will be the largest repository of
electronic medical evidence in the entire world. I think a very
impressive accomplishment for us. We will eliminate the 100
days that we spend locating cases and reconstructing files, as
you pointed out, or the 60 days that we spend mailing cases
back and forth from one area to another. Simply, at the push of
a button, the case can come up and between viewed from anywhere
in the country where people have access. So, I am very, very
happy, and I am also happy to say that we are expecting a good
rate of return on it, a savings of $1.3 billion for an
investment of $800 million, and we have received full funding
for the eDIB up to this point. The President has requested full
funding and a 6.8-percent increase for SSA. I wanted to do a
plug for our budget request. My staff would kill me if I left
here, my budget staff, without doing that. We have always
appreciated the support we have gotten from this Committee, and
without the proper resources, it is just impossible to make the
gains and strides we want to make.
Finally, with respect to ALJs, you are absolutely right, we
had a real problem. Part of our backlog is due to the fact we
were not able to hire ALJs for several years to do the cases.
That has been decided. We actually, I am pleased to say, hired
102 ALJs this year, and we are looking to hire the same number
next year, assuming that we have adequate resources to do that.
The issue at this point is, and you asked about the status of
the new register in OPM. We have been advised by OPM that they
need to redo the examination and they need to pilot it, and,
therefore, we cannot expect to have a brandnew register until
the end of calendar year 2005, which means that if the budget
issues gets resolved, appropriation bills get passed, we get
sufficient resources to continue to hire ALJs, we will be in
the situation of using a register that closed actually, I
believe, in 1999 but really there are people on it from as far
as 1993. The issue there for us is this: there could be
individuals who maybe did not score as high for placement on
the register in 1993 but now, 11 years later, have much more
significant experience, that would have relevant experience
that would have placed them much farther in a current register.
So, that is the situation.
Mr. POMEROY. Will you be able to use that old list then
while they are developing the new list?
Commissioner BARNHART. We will be able to use the old list.
The issue as we have gone pretty far down the register at this
point, as you can imagine, because we are not the only Federal
agency, obviously, that hires ALJs, although we are sort of the
big gorilla on the block; in the sense that we have over 1,000
ALJs, I am pleased to say, 1,075 ALJs on duty now. We believe
we need to have around 1,300. I would be happy, because of the
Committee's longstanding interest, and Mr. Brady also was very
active in this issue a few years ago for us, I would be happy
to submit a list of where all the ALJs were hired, because many
of them were hired in States that the Committee Members are
from.
[The information follows:]
ALJ Hires 2004
------------------------------------------------------------------------
Report June Report August
Region & HO 1, 2004 30, 2004 Total
------------------------------------------------------------------------
Region I: No New Hires
------------------------------------------------------------------------
Region II
------------------------------------------------------------------------
Bronx, NY 1 1 2
------------------------------------------------------------------------
Buffalo, NY 1 0 1
------------------------------------------------------------------------
Mayaguez, PR 0 1 1
------------------------------------------------------------------------
Ponce, PR 0 1 1
------------------------------------------------------------------------
Queens, NY 1 0 1
------------------------------------------------------------------------
San Juan, PR 1 1 2
------------------------------------------------------------------------
Syracuse, NY 1 1 2
------------------------------------------------------------------------
Region III
------------------------------------------------------------------------
Johnstown, PA 0 2 2
------------------------------------------------------------------------
Morgantown, WV 0 1 1
------------------------------------------------------------------------
Region IV
------------------------------------------------------------------------
Atlanta, GA 0 1 1
------------------------------------------------------------------------
Birmingham, AL 0 1 1
------------------------------------------------------------------------
Charlotte, NC 0 1 1
------------------------------------------------------------------------
Florence, AL 3 0 3
------------------------------------------------------------------------
Fort Lauderdale, FL 3 0 3
------------------------------------------------------------------------
Hattiesburg, MS 0 1 1
------------------------------------------------------------------------
Jackson, MS 1 0 1
------------------------------------------------------------------------
Macon, GA 2 0 2
------------------------------------------------------------------------
Miami, FL 3 0 3
------------------------------------------------------------------------
Montgomery, AL 0 3 3
------------------------------------------------------------------------
Orlando, FL 2 0 2
------------------------------------------------------------------------
Savannah, GA 0 1 1
------------------------------------------------------------------------
Tampa, FL 4 0 4
------------------------------------------------------------------------
Tupelo, MS 0 4 4
------------------------------------------------------------------------
Region V
------------------------------------------------------------------------
Cincinnati, OH 0 1 1
------------------------------------------------------------------------
Cleveland OH 3 3 6
------------------------------------------------------------------------
Columbus, OH 0 1 1
------------------------------------------------------------------------
Detroit, MI 4 0 4
------------------------------------------------------------------------
Evansville, IN 2 0 2
------------------------------------------------------------------------
Fort Wayne, IN 2 0 2
------------------------------------------------------------------------
Grand Rapids, MI 3 3 6
------------------------------------------------------------------------
Indianapolis, IN 0 1 1
------------------------------------------------------------------------
Lansing, MI 0 2 2
------------------------------------------------------------------------
Milwaukee, WI 2 0 2
------------------------------------------------------------------------
Minneapolis, MN 0 2 2
------------------------------------------------------------------------
Peoria, IL 0 1 1
------------------------------------------------------------------------
Region VI
------------------------------------------------------------------------
Alexandria, LA 3 0 3
------------------------------------------------------------------------
Dallas N, TX 0 1 1
------------------------------------------------------------------------
Houston DT, TX 0 2 2
------------------------------------------------------------------------
Little Rock, AR 3 0 3
------------------------------------------------------------------------
Metairie, LA 2 0 2
------------------------------------------------------------------------
Shreveport, LA 0 2 2
------------------------------------------------------------------------
Tulsa, OK 0 2 2
------------------------------------------------------------------------
Region VII
------------------------------------------------------------------------
Creve Coeur, MO 1 1 2
------------------------------------------------------------------------
Kansas City, KS 2 0 2
------------------------------------------------------------------------
Omaha, NE 0 1 1
------------------------------------------------------------------------
St. Louis, MO 1 0 1
------------------------------------------------------------------------
W. Des Moines, IA 1 0 1
------------------------------------------------------------------------
Region VIII
------------------------------------------------------------------------
Billings, MT 0 3 3
------------------------------------------------------------------------
Region IX
------------------------------------------------------------------------
Los Angeles DT, CA 0 2 2
------------------------------------------------------------------------
Region X
------------------------------------------------------------------------
Spokane, WA 0 2 2
------------------------------------------------------------------------
Total 52 50 102
------------------------------------------------------------------------
----------
Chairman SHAW. Mr. Ryan?
Mr. RYAN. Thank you. I actually had two questions. One was
about the ALJs and the backlog, so I think you have covered
that pretty well. First of all, thank you for the streamlining
proposal. I think it is overdue, and I am very glad that you
are implementing it. I just had a quick question. You may not
be prepared to answer it. I just wanted to get an update on the
Chicago-Milwaukee situation and the cleanup operation that is
going on there. If you are not prepared, if you could just send
me something in writing, that would be great.
Commissioner BARNHART. I would be happy to submit, provide
information in writing to you, a complete update of what is
going on. I can tell you some information that you may be
interested in, in terms of the workload and what is going on.
[The information follows:]
Chicago File Assembly
October 2004
The total number of cases identified for file assembly is 1,375
(this number includes cases that were transferred into the hearing
office (HO).
1,180 cases, or 86% have been decided (733 or 62% are
favorable decisions and 279 or 24% are unfavorable, this number does
not include dismissals or remands).
195 cases or 14% are at the various processing levels
awaiting a decision.
Issue
A contract file assembly unit was started in the Chicago (So,uth)
HO in November 2002, working cases from various hearing offices in the
Chicago Region. In early May 2003, HO management discovered that
significant amounts of material had been removed from the files by
contract workers, allegedly because it duplicated material already in
the file. Upon review, it was determined the material was original
evidence, not duplicate documents.
On May 9 and May 20, 2003, respectively, both contractors, Training
So,lutions and Worldwide Industries, were advised that SSA would not
use their services until it completed a full investigation of the
situation. On July 23, 2003, SSA subsequently terminated both
contracts.
The agency decided to notify all 1,375 claimants affected by the
actions of these contractors. The notices advised claimants that their
file may be incomplete and discussed their remedies, including:
examining their file, having a new hearing, and having a new decision.
Notification Process
Region V (Chicago) completed initial notification to all
1,375 claimants.
Region V sent a second notice to all claimants who failed
to respond to the first notice.
In cases where the HO did not hear from the claimant
after two notices, a closeout letter was issued. The closeout letter is
required before an ALJ can issue an adverse action (i.e., denial or
dismissal), thus ensuring that a claimant has been notified three
times.
The Appeals Council was alerted of those cases in which
an adverse decision was released by the HO before all notices were sent
to the claimants.
The Council issued a total of 101 remand orders on those
cases. Most remands (87) were issued before December 31, 2003; the
remaining (14) were issued by February 13, 2004.
There are no outstanding cases pending at the Appeals
Council level.
Claimant Allegations of Missing Evidence
Two claimants alleged missing evidence upon review of their files.
The HO is obtaining the missing evidence in both cases.
More recently, one additional claimant alleged possible missing
evidence. The allegation was determined to be unfounded, however, as
the identified treating source had no record or report of any evidence
that it had submitted to OHA.
Conclusion
The OHA Chicago Region took all the necessary steps to preserve the
claimants' due process rights and performed the required notification
process in every affected case. We are confident the matter has been
completely and positively resolved to address the issues raised by all
concerned. In conclusion, no claimant has been adversely affected by
the events at the Chicago File Assembly Unit.
__________
I wish I could report to you that the situation had eased
incredibly in Milwaukee in terms of the backlog. Unfortunately,
it has not. We received 5,299 hearing requests this fiscal year
to date. This is as of August. I will have fiscal year data in
approximately another 15 days. We have actually disposed of
3,635 hearings----
Mr. RYAN. Three thousand what?
Commissioner BARNHART. It was 3,635 of those hearings. The
processing time has averaged 413 days. That is an improvement
from last year. It was 438 days.
Mr. RYAN. Are some of the new ALJs going to come to this
area?
Commissioner BARNHART. Excuse me, that is an improvement
from June. I am looking at June, July, and August. It is an
improvement from June. It was 438, 464 in July, but fiscal year
to date, 413. So, the average is creeping up on the processing.
The pending per ALJ, we are at 843 cases per ALJ, and the total
pending in the office is 8,435.
Mr. RYAN. Are some of these new ALJs coming to Milwaukee?
Commissioner BARNHART. Pardon?
Mr. RYAN. Are you sending some of your new ALJs to this
region?
Commissioner BARNHART. Yes.
Mr. RYAN. Milwaukee and Chicago.
Commissioner BARNHART. Let me check and see. I can tell you
where they are going. I have got a list right here. Yes, two of
the judges are going to Milwaukee.
Mr. RYAN. The people who had their identities compromised,
I will not go through the problem we had, but the problem with
the contract employees with respect to the records that got
compromised in the Chicago office, is that all but settled now?
Commissioner BARNHART. It is absolutely settled.
Mr. RYAN. I know everybody got a notice and everybody got a
chance to redo their claims. Where are we in that process?
Commissioner BARNHART. To my knowledge, everything has been
resolved, and no one had any adverse effect as a result of
that. Actually, as of today, that contracting that we were
doing, which simply was to move cases because with the onset of
hearing process initiative in 2001, it really stalled our
hearing process in the hearing offices, and we just needed to
prepare cases. Those contracts, the remaining ones, terminate
today, and the approach that I am using from this point out is
we have five cadres basically, special regional units, that are
going to be providing that service of case pulling that was
previously done by contractors.
Mr. RYAN. Like Earl said, and others, I think the
paperless, the electronic file is really the big answer here,
but I look forward, and if you could just give me more details,
if you have them, with respect to the Milwaukee thing, we are
very concerned about the backlog. I am sure you get this from
other regions as well, but I am glad you are sending some ALJs
to Milwaukee because, this is our caseworkers' biggest
nightmare, and I am just pleased with the reforms, but
hopefully we can clean up this backlog as quickly as possible.
Commissioner BARNHART. I appreciate your concern, and
eliminating the backlog in disability has been one of my top
priorities since I came into this job, and the service delivery
budget that I have crafted the last 2 years, and will be
submitting again to OMB this year hold out as the goal the
elimination of the backlogs. Unfortunately, despite the fact
that the last 2 years we did not get the budget request that we
asked for as an agency, because of productivity enhancements,
the fact that, as Mr. Cardin pointed out and as he has seen
firsthand many times at our Baltimore headquarters, the staff
works very hard in headquarters as well as out across the
country, we have managed to keep backlogs from growing greater
than they have, butt they are still growing. The first step in
eliminating backlogs is being able to have enough trained,
experienced people on staff to be able to do the work. Of
course we had the technical stumbling block of not being able
to hire ALJs, but then we have the resource limitation we may
face next year.
Mr. RYAN. All right. Thanks.
Chairman SHAW. Thank you, Ms. Barnhart. I couldn't help but
notice the generosity with which my colleagues on the other
side of the aisle were handing out accolades to you. They are
not known for such generosity when it comes to----
Mr. CARDIN. I beg your pardon.
[Laughter.]
Chairman SHAW. So, I think that must be, that is probably
the sincerest form of compliments that you could possibly get
here in Washington. Obviously you are doing a great job, and we
are very grateful for the service that you are performing, and
particularly, in this area of moving this caseload and bringing
the SSA into this century. I very much appreciate it. Did you
want to, I have not offended you?
Mr. CARDIN. No, not at all. We always give praise when
praise is due, and, of course, I think Commissioner Barnhart,
because of her strong presence in the Baltimore region, there
is good reason as to why she is doing such a great job.
[Laughter.]
Commissioner BARNHART. Thank you very much.
Chairman SHAW. Thank you, Commissioner. We really
appreciate it. At this particular point, I have a letter from
the Honorable Frederick Stamp, who is the Chair of the
Committee on Federal-State Jurisdiction of the JCUS, and
without objection, I would like to place it in the record. Mr.
Herger?
[The information was previously published:]
Chairman HERGER. Thank you. Again, we thank you very much,
Commissioner Barnhart.
Commissioner BARNHART. Thank you.
Chairman HERGER. With that, we will call up our next panel:
the Honorable Hal Daub, Chairman of the SSAB, former Member of
the Committee on Ways and Means; Ron Buffaloe, President of the
National Council of S,cial Security Management Associations
(NCSSMA); Sheila Everett, President of NCDDD; Martha Marshall,
President of NADE; and Dr. C. Richard Dann, who is representing
the Union of American Physicians and Dentists (UAPD), of the
American Federation of State, County, and Municipal Employees
(AFSCME), and is from my home State of California. Chairman
Daub to testify.
STATEMENT OF THE HONORABLE HAL DAUB, CHAIRMAN, SOCIAL SECURITY
ADVISORY BOARD
Mr. DAUB. Chairman Shaw, Chairman Herger, thank you very
much for the opportunity to be with you, Mr. Cardin, Members of
the Committee. I appreciate the opportunity to discuss the
Commissioner's proposed reforms of the Social Security
disability process. The independent SSAB has carefully studied
the disability process over the past several years. We have
made many recommendations for fundamental change. We
congratulate our former colleague, who is now the Commissioner,
for boldly tackling this problem. We applaud her and you for
making sure that the views of all affected parties are heard
and considered.
Today I want to focus on the hearing part of the overall
process. That is where the greatest delays and most serious
backlogs occur. Some of the Commissioner's changes will
expedite the hearings process. A consultant study that the
Advisory board commissioned identified inadequate development
of the case record as a major reason why claims bog down. The
RO position should assure that cases that go on to a hearing
are fully developed and include a clear decision rationale. The
RO step should result in fewer cases needing to go to the
hearings level. It is crucial that the ROs be carefully
selected and well trained. Other changes, like closing the
record after the hearing and eliminating the additional step of
the Appeals Council, may also serve to reduce timelines by
sharpening the focus on the hearing itself as the final
administrative step. Due process is much more assured as that
RO, under the current recommendation, will be an attorney, and
on our board there is strong bipartisan support to eliminate
the Appeals Council. I'm looking at how to move the case and
assure quality from the beginning to the end, the approach is
take more time in the beginning, which should save a lot of
time in the end.
I would like to make two important cautions, however.
First, the proposed reforms will help in the long run, but they
are still in the planning stage. Second, although the proposed
changes may ultimately reduce the appeals workload, the appeals
process will remain an important element of the system. The
Commissioner and the Congress need to continue searching for
both short-run and long-run improvements in that process.
As of June 30th of this year, there were 612,000 people
waiting for hearing decisions on their Social Security claims;
over 170,000 of them have been waiting for more than 1 year.
The agency has become more productive, but the workloads are
overwhelming. Pending levels have been rising now for 5 years.
Just during the recent fiscal year, there has been a 43-percent
increase in cases that have been in the hearing system for more
than a year. If these backlogs continue to grow, they will make
it very hard for the proposed changes to be fully effective.
I would urge both you and the agency to look carefully at
the hearings process to find ways to make it operate more
efficiently. The board has spoken with many ALJs, chief ALJs,
and employees at the management and staff levels. We have heard
many suggestions for improvements. I will mention just a few
that are much more fully detailed in my longer statement, which
I have submitted for the record, and I will repeat them here
just in bullet points: the absence of effective rules of
procedure; the need for more extensive training of judges; the
need to improve the policy base and to rethink some of the
rules and regulations that many judges believe undercut their
ability to deliver supportable decisions; and, last, the need
for more effective management tools to encourage performance
and accountability.
Also, the Commissioner quite properly designed a set of
proposals that she could implement administratively. I hope,
however, that you will look for ways that you might
legislatively support this improved process. The board has, for
example, suggested that you examine the possibility of
establishing a Social Security Court, and we have also
suggested looking at sharpening the hearings process by
including an individual to represent the agency position.
I know that this hearing is focusing on the procedural
changes that the Commissioner is recommending. My last point to
you: that is an important and urgent need, and she is to be
commended. However, the Advisory board also believes that the
time has come for serious consideration of whether the
definition of disability is consistent with our National goals
for the disabled. We have issued a report on this and are
continuing to look at it, and we hope that your Subcommittees
will also begin to seriously examine this issue. Thank you very
much.
[The prepared statement of Mr. Daub follows:]
Statement of The Honorable Hal Daub, Chairman, Social Security Advisory
Board
Chairman Shaw, Chairman Herger, Mr. Matsui, Mr. Cardin, Members of
the Subcommittees. I appreciate this opportunity to discuss the
Commissioner's proposed reforms of the Social Security Disability
Process.
The Social Security Advisory Board has carefully studied the
disability process over the past several years. We have made many
recommendations for fundamental change. We congratulate the
Commissioner for boldly tackling this problem. We applaud her and you
for making sure that the views of all affected parties are heard and
considered.
The Board has always emphasized that it is important to look at the
disability process as a whole, because changes in one part affect the
other parts of the process. Today, however, I want to focus my comments
on the hearings part of the overall process, because that is where the
greatest delays and the most serious backlogs occur.
Some of the Commissioner's proposed changes will expedite the
hearings process. I would begin with two important cautions, however.
First, the proposed reforms will help in the long run, but they are
still in the planning stage. Once a final process is decided upon, the
way in which they are implemented becomes crucial. Second, although the
proposed changes may ultimately reduce the appeals workload, the
appeals process will remain an important part of the system. The
Commissioner and Congress need to continue searching for both short-run
and long-run improvements to the process.
One aspect of the Commissioner's approach will improve the quality
of the case record that makes its way to the hearing process. A
consultant study commissioned by the Board identified the quality of
the case record as the key to fair and accurate disability
determinations. A poorly developed claim at one stage not only affects
the quality of the decision at that level but also burdens the process
at the next level. Developing a high quality record requires the
assessment of complex medical and vocational information.
Unfortunately, workload pressures at the State agency level sometimes
lead to decisions being made based on a record that is less than
complete, and the record that makes its way to the Office of Hearings
and Appeals is sometimes lacking in evidence and in rationale for the
decision that was made.
When claims are appealed to the hearings level, the hearing office
develops the record independently and without assuming that the State
agency had all the information available. The hearing office may obtain
existing medical reports from doctors or hospitals and can order
consultative examinations. This need for case development is one of the
reasons cases get bogged down at that level.
The reviewing official (RO) position that the Commissioner has
proposed has the potential to expedite the hearing process by ensuring
that cases that go to a hearing are fully developed and include a clear
decision rationale. The RO is also authorized to issue allowance
decisions, which would both expedite decisions and reduce workload
pressures at the hearings level. For claims that are not allowed, the
ROs would prepare either a recommended disallowance (if they think the
evidence indicates that the claimant is ineligible) or a pre-hearing
report (if they think the record does not definitively show that the
claimant is ineligible but is inadequate to establish that the claimant
is eligible). The pre-hearing report would outline what evidence is
needed to establish eligibility. If a case with a recommended
disallowance goes to a hearing and is allowed, the administrative law
judge (ALJ) would describe in the written opinion the basis for
rejecting the recommended disallowance. If a case with a pre-hearing
report goes to a hearing and is allowed, the ALJ would describe the
evidence gathered at that stage to address the points defined in the
pre-hearing report.
The reviewing official is clearly an important innovation that has
potential for significantly improving the process. It is therefore
important that the new position be implemented thoughtfully. The ROs
should be carefully selected and well trained. Expectations for the new
ROs should be well defined and reasonable to ensure that they have
enough time to do a thorough job. And if they are selected from other
parts of the agency, it will become important to backfill those
positions carefully.
Reduced hearing backlogs are another condition for the success of
the RO position. If the administrative law judge gets a well-developed
case with a clear decision rationale, the hearing process will go more
smoothly and more quickly. But if cases coming from the RO sit in a
hearing office backlog for months before being heard, the case
development may no longer be current and the rationale may no longer
fit the facts. If the very large current backlogs in the hearing
offices are not dealt with or if delays at the hearings level continue
to be lengthy, they will make it very hard for the new process to be
fully effective.
The number of cases pending at the hearings level has been rising
for the last five years. As of June 30 of this year, there were 612
thousand people waiting for hearing decisions on their claims. Over 170
thousand of them have been waiting for over a year. Pending levels are
now even higher than they were when the number of disability claims
spiked in the early 1990s.
There are reasons for this that you are familiar with. The Azdell
court case prevented the agency from replenishing its ranks of ALJs as
judges retired or left for other reasons. The Hearing Process
Initiative that was implemented in 2000 hurt productivity for a time
and added to the backlogs. The Office of Hearings and Appeals (OHA) has
become more productive in recent years, but the workload is
overwhelming. OHA has been disposing of more hearings cases for the
last two years, but receipts have also been climbing.
Just during the current fiscal year, there has been a 43 percent
increase in cases that have been in the hearing system for more than a
year. While the new process changes may help in the future, there is
also a need to deal with these current large and growing backlogs.
Moreover, the impact of the proposed changes to the disability process
may be undermined if they have to be implemented in the context of huge
backlogs.
So, in addition to the Commissioner's proposals, I would urge both
you and the agency to look carefully at the hearings process to find
ways to make it operate more efficiently. The Board has conducted
public hearings and has spoken with many managers, judges, attorneys,
and other staff at hearings offices. They have given us many
suggestions for improvements to the process. Let me give you some
examples of the recommendations made to us:
Rules of procedure--Many of those we talked with have
told us that the absence of effective rules of procedure contributes to
unnecessary delays in the process. For example, we have heard that
representatives sometimes get inadequate advance notice of hearings,
and we have also heard that many hearings have to be postponed because
of late submission of evidence. Implementing improved rules of
procedure could make the hearing process more orderly and efficient.
Need for training--Administrative law judges receive a
short introductory course of four to five weeks, with no required
ongoing training of the kind that many States require of lawyers.
Although much of their work deals with medical and vocational factors,
the medical training they receive is far shorter than that of State
agency disability examiners.
Improved policy infrastructure--Clearer and more
objective formulation of agency policy has great potential to
facilitate a quicker more efficient process. Much of the workload which
now burdens the hearings process reflects an unnecessarily complex body
of rules and regulations that are subject to differences of
interpretation at different levels and account for much of the churning
of cases through appeals and remands. We have frequently heard, for
example, that the Social Security rulings put an unreasonable burden on
the hearings process to have a written decision which explicitly
comments on each item of evidence. In fact, we have heard from agency
officials that these rules are the cause of many remands of cases that
were, in fact, decided correctly.
Management tools--Office managers and supervisors need
better tools to evaluate and motivate their staffs, and chief judges
need support in motivating their colleagues. Claimants are entitled to
fair decisions, but they also are entitled to timely decisions. Those
goals are not incompatible.
This hearing is focused on the Commissioner's proposals, all of
which can be implemented administratively. I hope, however, that you
would consider ways in which you might support an improved process
legislatively. The Board has, for example, suggested that you reexamine
the possibility of establishing a Social Security Court. Concerns about
national uniformity in policy and procedures have led some to question
the current arrangement for review by Federal courts. Allowance rates
in District Courts have varied widely, and courts frequently issue
decisions that vary from district to district and from circuit to
circuit, resulting in the application of different disability policy in
different parts of the country. Over the history of the disability
program, the courts have played a major role in defining the standards
for disability. Whether the existing arrangements for judicial review
represent the best public policy is a question that deserves careful
study.
The Board has also suggested another look at whether there should
be a government representative when the agency's prior decision is
being reviewed at the hearings level. One reason frequently cited for
the backlogs in the appeals process is that the administrative law
judge is required to assume responsibility not only for decision making
but also for perfecting both the agency's and the claimant's cases.
Having an agency representative participate in hearings could help to
clarify issues and introduce greater consistency and accountability.
Finally, looking at the question of disability even more widely,
the Advisory Board also believes that the time has come for serious
consideration of whether the definition of disability in the Social
Security Act is consistent with our national goals for the disabled. We
issued a report on this subject last October and hosted a forum on the
definition of disability in April. This report, The Social Security
Definition of Disability: Is It Consistent with a National Goal of
Supporting Maximum Self Sufficiency?, is available on the Board's
website, www.ssab.gov. The papers delivered at the April Forum are also
on the website. We hope to foster a continued discussion of the topic.
Much has changed in the half-century since the disability program
began. Medical and rehabilitative knowledge and technology have made
great strides in that time. The nature of work and the workforce has
changed. And attitudes about disability and work have also been
revised. It is time to consider whether the old definition still fits.
As an adjunct to the process changes, SSA will be piloting some
different approaches to disability benefits that will encourage work,
and we look forward to discussing their outcomes with you in the
future.
Chairman HERGER. Thank you, Mr. Daub. Mr. Buffaloe to
testify.
STATEMENT OF RONALD E. BUFFALOE, PRESIDENT, NATIONAL COUNCIL OF
SOCIAL SECURITY MANAGEMENT ASSOCIATIONS, SALISBURY, NORTH
CAROLINA
Mr. BUFFALOE. Chairmen Shaw and Herger, Ranking Minority
Member Cardin, and Members of the Subcommittees, my name is Ron
Buffaloe, and I am the Social Security District Manager in
Salisbury, North Carolina. I am here today as President of the
NCSSMA. Our organization is comprised of more than 3,200
managers and supervisors who work in SSA's field offices and
teleservice centers in more than 1,300 locations across the
country. Thank you for giving me the opportunity to come before
you today to talk about the Commissioner's proposal to improve
the disability determination process and to give our
association's thoughts about her proposal.
The NCSSMA applauds Commissioner Barnhart for proposing a
new approach to disability determinations. As an organization,
we hold great hope that her proposed changes will shorten
decision times and pay benefits faster to people who are
obviously disabled. While our written testimony reviews our
opinions on all the various aspects of the Commissioner's
proposals, I am going to spend most of my time today on the
part that most directly impacts field offices. We note that the
Commissioner's proposal recommends as its first element, and I
quote, ``a quick decision step at the very earliest stages of
the claims process for people who are obviously disabled.''
This is not only a great idea, it has been around for a long
time. The presumptive disability process in the SSI Program is
essentially a quick decision approach. We think these existing
procedures need to be refined and broadened.
We strongly recommend that claims representatives in field
offices be empowered to make or recommend the quick decisions
envisioned in the Commissioner's proposal and that those cases
not meeting the quick decision criteria be moved to the State
DDSs, without an intermediate step. We also recommend that
claims representatives be given other functions such as taking
the first action to secure medical evidence and claims being
forwarded to the DDS for development and medical decision. This
is obviously predicated on appropriate medical training being
given to these field office employees.
The quick decision step is tailor-made for field offices.
Many impairments meet the medical listings, and can be allowed
with minimal medical evidence. This evidence can be obtained
via telephone and fax, and the efficiencies inherent in local
field office staff dealing with local treating sources are
obvious. We also feel this arrangement is compatible with the
Commissioner's desire to expedite the decision process for
those individuals who are obviously disabled. We feel this
approach will serve to streamline and expedite the disability
process as a whole.
Well-trained claims representatives with a greater
knowledge of the disability process would be able to provide
DDSs with a higher-quality product, even in those cases where a
quick decision is not possible. Evidence would be requested
earlier in the process, allowing DDS examiners to make
disability decisions in a timelier manner. So,me additional
resources may be necessary to implement this recommendation.
As to the other parts of the Commissioner's proposal, we
believe RERUs should be located in selected DDSs, not SSA
regional offices. They would be organized in the same manner
envisioned by the Commissioner's proposal and would perform the
same functions. Additional resources should be allocated to the
DDSs involved to compensate for this added responsibility. We
recommend and endorse implementation of the in-line quality
review process as well as the centralized quality control
function envisioned by the Commissioner's proposal. We believe
the DDS reconsideration step should be eliminated. We believe
the requirement that the RO be an attorney should be
eliminated. We believe the record should be closed after the
ALJ decision and that the Appeals Council should be eliminated.
Finally, we believe all affected components should be
staffed appropriately. Both DDSs and field offices will need
additional staff if this new process is to work. The NCSSMA is
committed to working with all interested parties in making the
Commissioner's vision of a new and improved disability process
a reality. We are hopeful our comments will be useful in
streamlining this process. Again, thank you for this
opportunity to appear before the Committee. I would welcome any
questions you may have.
[The prepared statement of Mr. Buffaloe follows:]
Statement of Ronald E. Buffaloe, President, National Association of
Social Security Management Associations, Salisbury, North Carolina
Chairmen Shaw and Herger, Ranking Minority Members Matsui and
Cardin, and Members of the Committee, my name is Ron Buffaloe and I am
here today representing the National Council of Social Security
Management Associations (NCSSMA). I am also the manager of the Social
Security District Office in Salisbury, North Carolina and have worked
for the Social Security Administration for 31 years. On behalf of our
membership, I am both pleased and honored that NCSSMA was selected to
testify at this joint hearing on the Commissioner of Social Security's
proposal to improve the disability determination process.
NCSSMA is a membership organization of more than 3200 Social
Security Administration managers and supervisors who work in SSA's more
than 1300 field offices and 36 teleservice centers in local communities
throughout the nation. It is most often our members with whom your
staffs work to resolve issues for your constituents relative to Social
Security retirement benefits, disability benefits or Supplemental
Security Income. Since our organization was founded 34 years ago,
NCSSMA has been a strong advocate of locally delivered services
nationwide to meet the variety of needs of beneficiaries, claimants and
the general public. We represent the essence of ``citizen centered''
government. We consider our top priority to be a strong and stable
Social Security Administration that delivers quality service to our
clients--your constituents.
The Challenge
SSA's field offices must spend a great deal of their time and
resources on the disability program. Approximately two-thirds of SSA's
administrative budget will be spent on the work generated by the
disability program. We know that this workload will only continue to
grow as the baby boom generation moves into their ``disability prone''
years. Field offices deal directly with disability applicants and
recipients; they take disability claims, provide information to
claimants and their representatives, initiate continuing disability
reviews and provide the public and third parties with information about
the disability program. In dealing directly with disability claimants
and recipients, we hear their stories and see firsthand the impact of
their impairments and our current disability determination procedures
on their lives.
The most prevalent criticism heard in field offices is about the
amount of time it takes to get a decision. Applicants wait an average
of almost 4 months from filing to receipt of an initial decision. The
almost half a million claimants who request a hearing before an
Administrative Law Judge (ALJ) each year can expect to wait, on
average, over a year from the date of initial filing for a decision.
The Commissioner's Proposal
NCSSMA applauds Commissioner Barnhart for proposing a new approach
to disability determinations. As an organization we hold great hope
that her proposed changes will shorten decision times and pay benefits
faster to people who are obviously disabled.
We know that processing an increasing number of disability claims
is one of the major challenges facing the Social Security
Administration. We believe it is essential that decisions be made now
on how best to process this growing workload.
NCSSMA has been actively involved in all the various projects and
initiatives in the past to improve the disability process. NCSSMA
representatives served on steering committees and workgroups in
connection withvarious pilots. Because of the experience gained from
the agency's three year Disability Claims Manager Pilot, NCSSMA
believes that there is compelling evidence of significant potential for
improving the speed and quality of SSA's initial disability
determinations by modifying the role of the field office at the
earliest point in the claims process.
While we are receptive of and encouraged by the Commissioner's
proposal for a new approach to disability determination, we believe
that there will be a better chance of improving speed and accuracy if
we begin the new approach with a change in the role of the disability
interviewer at the point the application is filed in the field office.
The Commissioner's proposal recommends as its first element a
``quick decision step at the very earliest stages of the claims process
for people who are obviously disabled.'' This is not only a great idea,
but it has also been around for a long time. The Presumptive Disability
(PD) process in the Supplemental Security Income claims process is
essentially a quick decision approach. To expand this concept and make
it work as part of the Commissioner's new approach the procedures need
to be refined, broadened, and implemented in a manner that is both
effective and takes into account the realities of the Federal-State
relationship.
We strongly recommend, therefore, that field office claims
representatives be empowered to make or recommend the quick decisions
envisioned in the Commissioner's proposal at the field office level,
and that those cases not meeting the quick decision criteria be moved
to the State Disability Determinations Services (DDSs) without an
intermediate step.
We would recommend that additional disability responsibilities be
assigned to claims representatives to permit such disability decision
making (where arrangements can be made with individual DDSs). We also
recommend that they be given other functions such as taking the first
action to secure medical evidence on claims being forwarded to the DDS
for development and medical decision. This is predicated on additional
appropriate medical training being given to these field office
employees.
There are many impairments that meet the medical listings and can
be allowed with minimal medical evidence. This evidence can be obtained
via telephone and fax and the efficiencies inherent in local field
office staff dealing with local treating sources are obvious. The quick
decision step is tailor-made for field offices.
We feel this arrangement is compatible with the Commissioner's
desire to expedite the decision process for those individuals who are
obviously disabled. We feel this approach will also serve to streamline
and expedite the disability process as a whole. Well trained claims
representatives, with a greater knowledge of the disability process,
would be able to provide DDSs with a higher quality product even in
those cases where a quick decision is not possible. Evidence would be
requested earlier in the process, allowing DDS examiners to make
disability decisions in a timelier manner.
Regarding the Commissioner's proposal to establish Regional Expert
Review Units, we believe these units would be the proper place to
provide expert support for all disability examiners. The Commissioner's
proposal indicates that ``Most of these units would be established in
SSA's regional offices.'' This, we believe, could be a deal breaker for
the DDSs. We recommend that these units be established in individual
DDSs within each region. The resources earmarked for the units planned
for Regional Offices can be diverted to the appropriate DDSs. The
medical expertise centralized in an individual Expert Review Unit could
still be made available to decision makers at all levels.
We understand that the Commissioner envisions that the role of the
DDS will not diminish under her plan and in fact, anticipates that it
will expand with the need for more vocational experts and the need to
manage temporary allowances, early intervention and interim medical
benefits. We need to point out that these factors could have an even
greater impact on SSA's field offices where logically the task of
dealing directly with the claimant on these issues should reside.
We strongly endorse the implementation of an in-line quality review
process managed by the DDSs as well as the centralized quality control
unit to replace the current SSA quality control system. In a joint
proposal from the National Association of Disability Examiners (NADE)
and NCSSMA entitled ``The Front End of the Disability Claims Process'',
submitted to the Deputy Commissioner for Disability in December 2002,
NADE and NCSSMA recommended that an in-line quality review process be
established rather than relying exclusively on the current end-of-line
review.
We also endorse the elimination of the DDS Reconsideration step.
The Commissioner's proposal specifically indicates that the additional
time required for the State DDS examiners to do a more complete job of
documenting their initial decisions would be compensated by redirecting
DDS resources freed up by the Quick Decision process. For this to be
possible under our proposal to locate the Regional Expert Review Units
in DDSs it is essential that commensurate additional resources be
allocated to the DDSs.
The Reviewing Official (RO) position and function in the
Commissioner's proposal is valid, logical and essential to an improved
disability process. Here again, as a matter of selling this to the DDS
community, we believe that this function does not require that the RO
be an attorney. The Adjudicative Officer (AO) Pilot, which performed a
similar role, established that this function does not require a law
degree.
We strongly endorse the Commissioner's proposal to close the record
following the Administrative Law Judge decision and to eliminate the
Appeals Council.
Summary
To summarize:
The Commissioner's proposal has the promise to be the
basis for an improved SSA disability determination process.
The role of the SSA field office in the initial stage of
the disability intake process needs to be expanded and modified by
assigning additional disability responsibilities to claims
representatives including, where feasible, the initiation of medical
development, scheduling of consultative examinations, and recommending
and/or making medical determinations in quick decision cases.
Expert Review Units should be located in selected DDSs.
They would be organized in the same manner envisioned by the
Commissioner's proposal and would perform the same functions.
Additional resources should be allocated to the DDSs involved to
compensate for this responsibility.
We recommend and endorse implementation of the in-line
quality review process as well as the centralized quality control
function envisioned by the Commissioner's proposal.
The DDS Reconsideration step should be eliminated.
The requirement that the Reviewing Official be an
attorney should be eliminated.
The record should be closed after the ALJ decision and
the Appeals Council should be eliminated.
Finally, all affected components should be staffed
appropriately. Both DDSs and FOs will need additional staff if this new
process is to work.
NCSSMA is committed to working with all interested parties in
making the Commissioner's vision of a new and improved disability
process a reality. We are hopeful our comments will be useful in
streamlining this process.
Again, I thank you for this opportunity to appear before the
Committee. I would welcome any questions that you may have.
Chairman HERGER. Thank you, Mr. Buffaloe. Ms. Marshall to
testify.
STATEMENT OF MARTHA A. MARSHALL, PRESIDENT, NATIONAL
ASSOCIATION OF DISABILITY EXAMINERS, LANSING, MICHIGAN
Ms. MARSHALL. On behalf of the NADE membership, thank you
for providing this opportunity.
Chairman HERGER. Could you speak into the microphone,
please? There we go. Thank you.
Ms. MARSHALL. To present our views on the Commissioner's
proposal to reform the Social Security and SSI disability
programs. The NADE believes that for people with disabilities
it is crucial that the SSA reduce any unnecessary delays and
make the process more efficient. However, any changes in this
process must be practical and affordable and implemented in a
manner that allows appropriate safeguards to assure that the
current level of claimant service is improved or, at the very
least, maintained. We are not convinced that all parts of the
Commissioner's approach will achieve this and are concerned
that some of the proposed changes will, in fact, increase both
administrative and program costs. The experience of past pilots
has shown that ideas that may sound good in theory have proven
to be inadequate to meet the demands for service and
affordability when implemented on a wide-scale basis.
We agree with Commissioner Barnhart that successful
implementation of eDIB is a critical feature of any new
approach to SSA disability determinations. For eDIB to be
successful, however, it is critically important that adequate
infrastructure support and proper equipment be in place. The
eDIB implementation issues must be addressed quickly and
efficiently in order to make the process work as intended and
not cause real delays in the program and in the system.
Experience with eDIB to date has shown that proper equipment
has not always been provided to the DDSs, and while technology
can produce some processing time efficiencies, it is merely a
tool. It cannot replace the highly skilled and programmatically
trained DE and DDS medical consultant.
The Commissioner's approach envisions that quick decisions
for those who are obviously disabled would be adjudicated in
RERU. The NADE believes that the DDSs are better equipped in
terms of adjudicative experience, medical community outreach,
and systems support to fast track claims and gather evidence to
make a decision timely, accurately, and cost-effectively.
Establishing a RERU to handle this workload constitutes an
additional hand-off with no improvement in the process.
In addition, at the present time, if an SSI claimant
presents with a condition that is likely to be found disabling,
the statute provides for a presumptive disability decision.
Therefore, currently, an obviously disabled SSI claimant can
immediately begin receiving cash benefits and medical benefits
while the DDS obtains the supporting evidence. Unfortunately,
there is no such provision for Social Security claimants. A
person found disabled under the SSI Disability Program must
complete a 5-month waiting period before they can receive cash
benefits. An allowance, no matter how quickly it is processed,
will not benefit the individual if he or she has to wait 5 full
calendar months before receiving benefits. The NADE strongly
opposes any proposal to remove on-site MCs from the DDSs. These
MCs interact daily with DEs and offer advice on complex cases.
The Commissioner has proposed establishment of a Federal RO
as an interim step between the DDS decision and the OHA. We
agree that an interim step is necessary to reduce the number of
cases going to OHA as much as possible. We do not, however,
believe that this must be handled by an attorney. Decisions
made at all levels of adjudication are medical-legal ones.
Disability hearing officers who are programmatically trained in
disability adjudication as well as in conducting evidentiary
hearings can handle the first step of appeal between the DDS
initial decision and the ALJ hearing. Using trained hearing
officers instead of attorneys will be substantially less
costly.
In addition, we do believe that the single decisionmaker
model should be implemented throughout the new approach, that
MCs should be basically used to consult with on cases without
requiring sign-off in every case, unless required by the
statute. We appreciate the Commissioner's emphasis on quality
as described in her new approach. We support closing the record
after the ALJ decision and elimination of the Appeals Council.
The NADE believes that any proposal to reform the Social
Security and SSI Disability Programs must balance the dual
obligations of stewardship and service, and we look forward to
working with the Congress and with the Commissioner as she
refines this process. Again, thank you.
[The prepared statement of Ms. Marshall follows:]
Statement of Martha A. Marshall, President, National Association of
Disability Examiners, Lansing, Michigan
Chairman Shaw, Chairman Herger, and members of the Subcommittees,
thank you for providing this opportunity for the National Association
of Disability Examiners (NADE) to present our views on the
Commissioner's proposal to reform the Social Security and Supplemental
Security Income (SSI) disability programs.
NADE is a professional association whose purpose is to promote the
art and
science of disability evaluation. The majority of our members work in
the state Disability Determination Service (DDS) agencies and thus are
on the ``front-line'' of the disability evaluation process. However,
our membership also includes SSA Field Office, Regional Office and
Central Office personnel, attorneys, physicians, and claimant
advocates. It is the diversity of our membership, combined with our
extensive program knowledge and ``hands on'' experience, which enables
NADE to offer a perspective on disability issues that is both unique
and pragmatic.
NADE members, whether in the state DDSs, in SSA or in the private
sector, are deeply concerned about the integrity and efficiency of both
the Social Security and the SSI disability programs. Simply stated, we
believe that those who are entitled to disability benefits under the
law should receive them; those who are not, should not. We also believe
decisions should be reached in a timely, efficient and equitable
manner. Any change in the disability process must promote viability and
stability in the disability program and maintain the integrity of the
disability trust fund by providing good customer service while
protecting the trust funds against abuse. Quality claimant service and
lowered administrative costs that the American taxpayer can afford
should dictate the structure of any new disability claims process. In
addition, to rebuild public confidence in the disability program, the
basic design of any new process should ensure that the decisions made
by all components and all decision-makers accurately reflect a
determination that a claimant is truly disabled as defined by the
Social Security Act.
In her September 25, 2003 testimony before the Subcommittee on
Social Security, Commissioner Barnhart presented her approach to
improving the disability determination process designed to ``shorten
decision times, pay benefits to people who are obviously disabled much
earlier in the process and test new incentives for those with
disabilities who wish to remain in, or return to, the workforce''. NADE
supports these goals. We appreciate the Commissioner's focus on
improving the disability program and her willingness to tackle the
monumental task of improving the disability process and are fully
committed to working in partnership in this effort.
NADE believes that for people with disabilities, it is crucial that
SSA reduce any unnecessary delays and make the process more efficient.
However, any changes in the process must be practical and affordable
and implemented in a manner that allows appropriate safeguards to
assure that timely claimant service is improved, or at the very least,
maintained. NADE is not convinced that all parts of the Commissioner's
approach will achieve this and is concerned that some of the proposed
changes will, in fact, increase both administrative and program costs.
For the past decade, SSA has attempted to redesign the disability
claims process in an effort to produce a new process that will result
in more timely and more accurate decisions. Results of numerous tests
undertaken by SSA to improve the disability process have not produced
the results anticipated. The experience of past pilots has shown that
ideas that may sound good in theory have proven to be inadequate to
meet the demands for service and affordability when implemented on a
wide-scale basis.
There is a pervasive public perception that ``everyone'' is denied
disability benefits twice and their claim is allowed only when they
reach the Administrative Law Judge (ALJ) level. In fact, nearly 80% of
those currently receiving benefits were allowed prior to going before
an ALJ. In addition, in Fiscal Year 2000, 78% of all cases were finally
decided in the DDS and were completed in an average case processing
time of about 85 days at the initial level and 63 days at the
reconsideration level. The processing delays that appear to be of the
greatest concern to the Commissioner, and to the public, are delays
that occur, not at the DDS, but in association with the appeals
process. Wholesale changes at the DDS level do not address these
concerns.
Both formally and informally, NADE has provided extensive feedback
to the Commissioner on her ``New Approach to SSA Disability
Determinations''. Our comments are summarized below. In addition, a
flow chart incorporating NADE's suggestions accompanies this testimony.
NADE fully supports all efforts to allow earlier access to health
care, treatment and rehabilitation needs of disabled individuals, as
well as efforts to assist those individuals who wish to return to work
by providing them the needed services to allow them to do so. We
believe that early intervention efforts will provide improved service
to disabled individuals by providing needed treatment and services
earlier in their disease process. This early intervention has the
potential to decrease the lifelong disability payments that some
individuals receive once they have been determined eligible for
benefits. Although there are still few details available in the
Commissioner's approach regarding potential demonstration projects, it
appears that individuals chosen for participation in these projects
could be screened based upon age, education, work history and claimant
allegations. This type of data is currently collected in the initial
disability interview; using these types of screening criteria would not
require system changes or other modifications to the existing process.
Therefore, NADE believes that a trained ``technical expert in
disability'' in a SSA Field Office could screen applicants for
disability into these demonstration projects. Oversight of these
projects could be done on a regional basis by Regional Expert Review
Units as proposed by the Commissioner.
NADE agrees with Commissioner Barnhart that successful
implementation of eDIB is a critical feature of any new plan to improve
the disability program. NADE remains supportive of these new
technologies as a means for more efficient service to the public. We
believe that SSA's goal of achieving an electronic disability claims
process represents an important, positive direction toward more
efficient delivery of disability payments. However, while technology
can be expected to reduce hand-offs, eliminate mail time and provide
other efficiencies, technology is merely a tool. It cannot replace the
highly skilled and trained disability examiner who evaluates the claim
and determines an individual's eligibility for disability benefits in
accordance with Social Security federal rules and regulations.
In order for eDIB to be successful, it is critically important that
adequate infrastructure support and proper equipment to make the
process work effectively and efficiently is in place. Until eDIB is
fully implemented nationwide, it is impossible to determine critical
service delivery issues that impact on daily case processing. If DDSs
are pushed to meet arbitrary deadlines without the necessary hardware
and software, there will be delays in case processing and no
improvements in customer service. It is an absolute necessity that eDIB
implementation issues be addressed quickly and efficiently in order to
make the process work as intended and not cause real delays in service
to our most vulnerable citizens. Experience with eDIB to date has shown
that proper equipment has not always been provided to DDS disability
examiners to allow for optimal use of this new technology.
NADE strongly supports the Commissioner's emphasis on quality as
described in the new approach. National uniform decisions with
consistent application of policy at all adjudicative levels requires a
consistent and inclusive quality assurance (QA) review process. A well-
defined and implemented QA process provides an effective deterrent to
mismanagement, fraud and abuse in the disability program. By including
both in-line and end-of-line review, accountability can be built into
every step. We believe that this will promote national consistency
that, in turn, will build credibility into the process. In addition,
NADE supports requiring similar medical training for all decision-
makers at all steps in the disability claims process. Making disability
decisions can be extremely difficult without sufficient medical
training. Disability is based on a physical or mental medical condition
and the assessment of how such a condition impacts on a claimant's
ability to work must be based on an understanding of how such
conditions normally affect an individual's ability to function.
Adequate training of all decision-makers in the medical program
requirements is essential to ensure quality decisions and integrity in
the disability program.
Although the Commissioner's approach envisions that ``quick
decisions'' for those who are obviously disabled would be adjudicated
in Regional Expert Review Units, NADE believes that the DDSs are better
equipped in terms of adjudicative expertise, medical community
outreach, and systems support to fast track claims and gather evidence
to make a decision timely, accurately, and cost effectively. DDSs
already process at least twenty percent of allowance decisions in less
than twenty-five days. In addition, DDS disability examiners are well
versed in the evaluation of disability onset issues, unsuccessful work
attempts and work despite a severe impairment provisions to quickly and
efficiently determine the correct onset for quick decision conditions.
Establishing a Regional Expert Review Unit to handle this workload
constitutes an additional hand-off of a claim with no value added to
the process. We see no need to add another layer of bureaucracy to
process quick decisions when such cases are already ``triaged'' and
handled expeditiously by the DDS disability examiners. In order to
implement a Regional Expert Review Unit for quick decisions, SSA would
need to change its existing infrastructure to make these decisions and
provide for hiring, training and housing staff. In addition, business
processes would have to be developed to secure and pay for medical
evidence of record.
In addition, a person found disabled under the Social Security
disability program must complete a five month waiting period before
they receive cash benefits. A disability allowance decision, no matter
how quickly it is processed, will not solve the problem of having to
wait five full calendar months before being able to receive any cash
benefits. The SSI disability program does not require such a waiting
period. In fact, if an SSI claimant presents with a condition that is
likely to be found disabling, the statute provides for a presumptive
eligibility decision on the case before obtaining any additional
supporting evidence. This provision allows the claimant to immediately
start receiving cash benefits and medical benefits while the DDS
obtains the supporting documentation needed for the final eligibility
decision. There is no such provision for Social Security claimants, and
even
if a final eligibility decision is made earlier, they still have to
wait five full calendar months before being able to receive any cash
benefits and, with the exception of individuals diagnosed with ALS or
undergoing dialysis, twenty-four calendar months before becoming
eligible for Medicare benefits. This waiting period has caused many
claimants and their families to suffer severe economic and emotional
hardship while waiting to receive benefits. It also fosters a
perception that SSA is denying cash benefits to disabled workers when
they need these benefits the most. This is especially true for
claimants who suffer from a terminal illness and have a short life
expectancy.
NADE is strongly opposed to any proposal to remove onsite Medical
Consultants from the DDS. The DDS medical consultant interacts with
disability examiners on a daily basis and offers advice on complex case
development or decision-making issues. As an integral part of the DDS
adjudicative team,DDS medical consultants play a vital role in the
disability evaluation process, not only in reviewing medical evidence
and providing advice on interpretation, but also in training and
mentoring disability examiners, as well as performing necessary public
outreach in the community. He/she maintains liaison with the local
medical community and has knowledge of local care patterns and the
availability of diagnostic studies and state regulations to facilitate
the adjudication process within the complex Social Security system.
Most disability applicants have multiple impairments involving more
than one body system and require a comprehensive view of the combined
limitations and resultant impact on function. Specialty consultants
with limited scope and experience cannot fully assess the combined
effects of multiple impairments on an applicant's functioning. The SSA
programmatically trained DDS medical consultant has the education,
clinical experience and decision-making skills, along with expertise in
evaluating medical records and disease conditions and making prognosis
predictions regarding a claimant's function and future condition, to
more accurately assess the case as a whole.
DDS medical consultants are not only medical specialists--
physicians, psychologists or speech/language pathologists--they are
also SSA program specialists. There is a very real difference between
clinical and regulatory medicine and it takes at least a year to become
proficient in Social Security disability rules and regulations. The DDS
medical consultant's unique knowledge of SSA's complex rules and
regulations and regional variants of those regulations, their medical
expertise in many fields and knowledge of local medical sources, and
their familiarity with DDS examiner staff, quality specialists and
supervisors, make them an invaluable asset to the DDS's and the SSA
disability program as a whole. It is critical that this expertise be
on-site in the DDSs and readily available to the disability examiner
for case consultation and questions, particularly in those more complex
cases and, if as proposed under the Commissioner's plan, disability
examiners are to, ``more fully document and explain their decisions''.
The Social Security and SSI disability programs are unique among
disability programs. The disability examiners who evaluate claims for
Social Security and SSI disability benefits must possess unique
knowledge, skills and abilities. Those who adjudicate Social Security
and SSI disability claims are required, as a matter of routine, to deal
with the interplay of abstract medical, legal, functional and
vocational concepts. Disability examiners are required by law to follow
a complex sequential evaluation process, performing at each step an
analysis of the evidence and a determination of eligibility or
continuing eligibility for benefits before proceeding to the next step.
Adjudication of claims for Social Security and SSI disability benefits
requires that disability examiners be conversant (reading, writing and
speaking) in the principles of medicine, law and vocational
rehabilitation. The disability examiner is neither a physician, an
attorney nor a vocational rehabilitation counselor. Nevertheless, he or
she must extract and employ major concepts that are fundamental to each
of these professions. The disability examiner must appropriately and
interchangeably, during the course of adjudication, apply the ``logic''
of a doctor, a lawyer and a rehabilitation counselor. A disability
examiner must have knowledge of the total disability program as well as
proficiency in adult and child physical and mental impairment
evaluation, knowledge of vocational and job bank information and the
legal issues which impact on case development and adjudication. It
takes years before an individual becomes adept at this complex task.
NADE has long supported an enhanced role for the disability
examiner and increased autonomy in decision-making for experienced
disability examiners on certain cases. We were pleased, therefore, that
in NADE's discussions with Commissioner Barnhart we were told that it
was her intent in the new approach to enhance the disability examiner's
role in the disability process. In order to achieve that, we believe
that the Single Decision Maker (SDM) from the highly successful Full
Process Model project and currently operating in the prototype and ten
other states
should be fully integrated into the new approach. (Under the SDM
model, medical sign-off is not required unless mandated by statute.)
Decisions regarding disability eligibility can be considered to be
on a continuum from the obvious allowances on one end, through the mid-
range of the continuum where only careful analysis of the evidence by
both adjudicator and medical consultant can lead to the right decision,
and finally to the other end of the continuum where claims are obvious
denials. It is at both ends of the continuum where the disability
adjudicator can effectively function as an independent decision-maker.
Use of the SDM to make the disability determination, and retaining the
availability of medical consultant expertise for consulting on cases
without requiring medical sign off on every case, promotes effective
and economical use of resources. It is prudent to expend our medical
and other resources where they can most positively impact the quality
of the disability claim.
Of all the ``reengineered'' disability processes proposed or
piloted in the past, the SDM process has been the most successful. It
has had a more positive impact on cost-effective, timely and accurate
case processing than any other disability claims initiative in many
years. Statistical results have shown that disability examiners
operating under the SDM model in the twenty states where this concept
was tested have the same or better quality than disability examiners
operating under the traditional disability adjudication model. Studies
of the SDM have demonstrated its value as an integral part of the
Social Security Administration's disability claim adjudication process.
NADE strongly believes that the SDM model should be integrated fully in
any new initial claims process, expanded to Continuing Disability
Reviews and adopted as standard procedure in all DDSs.
The Commissioner, in her Approach, has proposed establishment of a
federal Reviewing Official (RO) as an interim step between the DDS
decision and the Office of Hearing and Appeals (OHA). NADE agrees that
an interim step is necessary to reduce the number of cases going to the
OHA as much as possible. An interim step laying out the facts and
issues of the case and requiring resolution of those issues could help
improve the quality and consistency of decisions between DDS and OHA
components. NADE supports an interim step because of the structure it
imposes, the potential for improving the consistency of decisions,
reducing processing time on appeals, and correcting obvious decisional
errors at the initial level. The establishment of uniform minimum
qualifications, uniform training and uniform structured decision-
writing procedures and formats will enhance the consistency and quality
of the disability decisions. NADE is not convinced, however, that
customer service is improved from the current process if this remains a
paper review at this interim step.
NADE believes that this interim step should include sufficient
personal contact to satisfy the need for due process. We do not believe
that it needs to be handled by an attorney. There is little, if any,
data that supports a conclusion that this interim step needs to be
handled by an attorney. In fact, a 2003 report commissioned by the
Social Security Advisory Board to study this issue recommended that
this position NOT be an attorney.
Decisions made at all levels of adjudication in the disability
process are medical-legal ones. NADE believes that Disability Hearing
Officers (DHOs) can handle the first step of appeal between the DDS
initial decision and the ALJ hearing. DHOs are programmatically trained
in disability adjudication as well as in conducting evidentiary
hearings. Using trained Disability Hearing Officers instead of
attorneys will be substantially less costly. In addition, there is
currently an infrastructure in place to support DHOs and using such a
structure will prevent creation of a new costly and less claimant
friendly federal bureaucracy. Since this infrastructure is already in
place, national implementation of the DHO alternative can occur very
quickly.
NADE supports closing the record after the Administrative Law
Judge's decision since this decision will, under the Commissioner's
proposed approach, represent the final decision of the Commissioner of
Social Security before any subsequent appeal to the federal courts. We
support providing the assistance of programmatically trained medical
and vocational experts to the Administrative Law Judges.
NADE supports elimination of the Appeals Council review step. We
continue to advocate for establishment of a Social Security Court. As
long as judicial review of disability appeals continues to occur in
multiple district courts across the country, a bifurcated disability
process will continue to exist as different DDSs operate under
different court rulings and regulations depending upon where the
claimant lives.
In summary, NADE's key recommendations are to implement only
strategies which balance the dual obligations of stewardship and
service. These are:
Implement eDIB only with adequate infrastructure support
and proper equipment.
Keep Quick Decisions in the DDS.
Eliminate or reduce the five month waiting period for
Social Security beneficiaries.
Extend Presumptive Disability provisions to Social
Security disability claimants.
Maintain Medical Consultants on-site in the DDS.
Fully integrate the Single Decision Maker into any new
disability process.
Utilize the current infrastructure of DDS Disability
Hearing Officers as an interim appeals step.
Require training in the medical program requirements for
all decision makers in all components.
Include both in-line and end of line review at all levels
of the process.
Recognize that technology is only a tool. It does not
replace the highly skilled trained disability examiner.
NADE appreciates this opportunity to present our views on the
Commissioner's New Approach to SSA Disability Determinations, and we
look forward to working with the Social Security Administration and the
Congress as the Commissioner continues to refine her approach to
improve the disability process.
Chairman HERGER. Thank you very much. Dr. C. Richard Dann,
please, to testify.
STATEMENT OF C. RICHARD DANN, M.D., UNION OF AMERICAN
PHYSICIANS AND DENTISTS, AND AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES, AUBURN, CALIFORNIA
Dr. DANN. Mr. Chairman and Honorable Members of the
Subcommittees, thank you very much for the opportunity to
present my views on Social Security's new approach to
disability determinations. I am Dr. Richard Dann from the
Roseville, California DDS. I am a DDS medical consultant (MC)
with 21 years experience in disability medicine. I am
testifying on behalf of the UAPD as well as the AFSCME. Of
2,100 DDS MCs nationwide, I represent 160 in California and
hundreds in other States.
The new approach eliminates the DDS medical consultant,
replacing us with nurses. At proposed ratios of about 2 to 1 in
current wages, two nurses would actually cost more than the DDS
MC replaced. The statutes require MC signatures on denials of
certain claim types. The DDS MCs fulfill those requirements. It
is unclear who will make the medical assessments and sign
medical decision documents if we are eliminated from the DDS.
New Approach sends easier quick decision cases to a regional
unit. Currently, DDSs decide 20 percent of all claims in under
25 days. Skimming quick decision cases from the DDS will
concentrate a more complex caseload into the DDS. This seems an
inappropriate time to replace the medical consultant with
nurses.
Abandoning the DDS reconsideration step for a regional RO
is somewhat troubling. An attorney does not have adequate
medical knowledge to make a better medical assessment than the
DDS MC. The DDS MCs provide convenient, close on-site medical
support to the DE. Adding a nurse and a computer between the DE
and the medical resource will hinder its use. The DDS MC is an
educator, training DEs, MCs and exam vendors. Off-site regional
medical experts would have trouble fulfilling these DDS support
roles. Medical licensure is a problem with New Approach. State
medical licensure is required for doctors to make diagnoses and
order diagnostic tests routine parts of casework at the DDS.
Nurses and attorneys cannot do this. State licensure costs a
lot and can be difficult to obtain due to a lack of reciprocity
between States. Regional medical experts would not be licensed
in every State of their region. Case development will be
impossible without the State-licensed DDS medical consultant.
The DDS MCs save millions of dollars each year by obtaining
medical evidence by phone. Regional medical experts would lack
familiarity with local medical providers and consultative
examiners. Regional medical experts would be less able to
obtain phone evidence.
The DDS MC approaches cases strategically and saves time
and cost by recognizing and allowance early. Disability
examiners consult casually with the on-site medical consultant.
I can allow cases early that might wrongly be denied by a nurse
or attorney. I have
done this with multiple throat cancer claims by using my
knowledge of anatomy to technically review an operative report
and find evidence for an allowance. Off-site regional experts
would not as user friendly to the DE.
To summarize, the DDS medical consultant should be retained
in New Approach. Social Security Disability is defined, quote,
``Due to a medically determinable impairment,'' unquote. There
is no one better to assess this than a physician. The medical
consultant has superior medical knowledge to a disability
evaluator, nurse or attorney. Our accessibility and knowledge
of Social Security regulatory medicine make us a unique asset.
Federally measured DDS accuracy is greater than 90 percent. The
DDS MC assessments are more legally defensible than those from
a DE, nurse or attorney. The DDS medical consultant provides
unparalleled professional training for the next generation of
DEs, MCs and vendors.
Eliminating the DDS medical consultant will waste millions
of dollars on wrong allowances and fraud, delay true
allowances, and weaken legal defense, and also impede the DE.
Importantly, it will erode public confidence in the Social
Security Disability decision. The DDS stakeholders, UAPD,
AFSCME, NADE and NCDDD, have all voiced solid support for
retaining the on-site DDS medical consultant; 2,100 MC jobs are
threatened by New Approach. Experienced DDS MCs will soon begin
leaving. We have obligations that will force us to seek secure
jobs. Many groups have worked diligently to show how Social
Security goals can be better achieved retaining the DDS MC. We
are an unparalleled resource to the DDS and Social Security and
our clients. Let us not let that resource disappear. Thank you
very much.
[The prepared statement of Dr. Dann follows:]
Statement of C. Richard Dann, M.D., Union of American Physicians and
Dentists, and American Federation of State, County, and Municipal
Employees, Auburn, California
Mr. Chairman and distinguished members of this Subcommittee;
We appreciate the opportunity to testify today regarding the Social
Security Administration's New Approach to Disability Determinations
plan.
I am Dr. Richard Dann, MD, from the Roseville, California
Disability Determination Service, (DDS). I am a DDS Medical Consultant
(MC) with over 21 years experience in disabilitymedicine. I am
testifyingon behalf of the Union of American Physicians and Dentists
(UAPD) and the American Federation of State, County and Municipal
Employees (AFSCME). I am one of approximately 2,100 DDS MCs nationwide.
I am testifying on behalf of the 160 DDS MCs in California and several
hundred more represented by AFSCME nationwide. I am a shop steward and
Board Member of UAPD.
I enjoy my job and obtain great satisfaction performing an
important medical, fiscal and civil service. I am here to explain why
the DDS MC is a critical resource in the adjudication of Social
Security Disability Claims and why MCs should remain in the State DDS.
In my judgment, eliminating the DDS Medical Consultant will waste
millions of dollars on erroneous allowances, encourage fraud, delay
bona fide allowances, weaken legal defense of decisions, and further
burden the Disability Examiner (DE). But most importantly, it will
erode the integrity of the SSA disability decision, along with the
public trust of the American people.
My job is to act like a medical detective, seeking accurate medical
assessments to determine if a claimant is disabled under SSA regulation
by a ``medically determinable impairment.'' I save costs by making
physician to physician phone calls to treating sources, obtaining high
quality evidence at no cost. I help to develop local vendor sources and
monitor their quality. The DDS MC helps provide initial and ongoing
training of the DE and new MC staff.
On Sept. 25, 2003, Commissioner Barnhart announced her New Approach
to Disability Determinations plan. The Commissioner stated that
applicant service would
improve, and that ``no SSA employee would be adversely affected by my
approach,'' explaining that included DDS employees and Adjudicative Law
Judges. The Commissioner then noted that she planned to eliminate the
position of the DDS MC, later elaborating we would be replaced with
nurses. The DDS nurse would liaison between the DE and a Regional
Medical Expert. At the staffing ratio proposed by SSA and current wage
scales, two nurses would cost more than the MC replaced. Many
operational specifics have not yet been shared with stakeholders and
the public. Statutes require DDS MC signatures on denials of pediatric
and mental health claims. Under the New Approach, who will sign these
claims? Where would all of these disability trained nurses come from? I
have helped write several position papers on elimination of the DDS MC
for UAPD, AFSCME, and the National Association Disability Examiners
(NADE), all of which have been submitted to this Subcommittee.
The Commissioner seeks faster disability decisions in her ``Quick
Decision'' plan, where cases of obvious severe disability would be sent
to a planned Regional Quick Decision Unit rather than to the DDS. There
are already mechanisms in place to expedite DDS claim review for the
obviously disabled and for those in dire need (E.G. PD or Presumptive
Disability and TERI cases). The speed of the decision must be weighed
against the accuracy of the decision; speed and quality tend to be
inversely proportional. Excessive emphasis on speed erodes quality
substantially. DDS administrators juggle these two factors constantly.
Very minor regulatory changes at the DDS would accomplish the goals of
the ``Quick Decision'' part of ``New Approach'' with considerably less
expense, staff training and change in procedures. The DDS team of
Disability Examiner and MC currently do quite well in this area, with a
mean DDS processing time of approximately 85 days nationwide and 75
days in California. About 20 percent of claims are adjudicated in less
than 25 days. Only a half hour or so is spent in review by the DDS MC;
the value added with that short step is enormous. Removing ``Quick
Decision'' cases will concentrate a more complex caseload into the DDS.
Accordingly, replacing the DDS MC with nurses at the same time as
concentrating more difficult cases into the DDS does not make sense.
The accuracy and quality of the disability decision are heavily
influenced by the DDS MC. Local DDS inline review and Regional quality
review keep DDS decision accuracy above 90 percent. Accuracy is
important; an allowance costs SSA between $100,000 and $200,000.
Erroneous allowances are very difficult to reverse due to SSA statutes,
and no one wants to wrongly deny benefits. This is a decision worth
getting right, for both the claimants and the budget. The quality of
the DDS decision is excellent, and more, rather than less, reliance
should be placed on it.
At the DDS, the MC provides medical knowledge at the doctorate
level rather than nurse level, peer level review of treating source
evidence, and inline quality review of the DDS decision. I have been
able to allow brain cancer cases to proceed quickly where the grade of
the tumor was not clearly stated, but my knowledge of histopathology
enabled me to support an allowance. Due to my knowledge of neck anatomy
and my ability to analyze operative reports, I have been able to
promptly allow claims for throat cancer that the DE would have denied.
Conversely, I have prevented inappropriate allowances for claims
involving multiple traumas due to my knowledge of fracture sites and
expected bone healing times. MCs recognize functional impacts of
cumulative impairments as well as potential disease complications a DE
or nurse cannot.
Many times every day, I carefully rationalize why a treating
source's diagnosis or assessment of capacity is inconsistent with the
medical evidence of record. The claimant's physician may not be as
objective as SSA would like. A treating doctor's functional capacity
statement is often noncritical in nature, based solely on what the
patient tells them. Applicants can distort the truth, deliberately or
unwillingly, and treating physicians are variably skilled at detecting
this. They are their patient's advocate, not their judge. Frequently, I
see statements from treating sources stating that their patient cannot
walk two hours or sit for six hours a day. Yet, the record shows that
the claimant lives alone, rides a bike, vacuums, and does his or her
own grocery shopping. Deliberate exaggeration of symptoms is common,
involving many cases every day.
Preventing fraud is a substantial part of our DDS job. There is a
big difference to SSA between ``uses a cane'' and ``needs a cane.'' The
DDS MC is best suited to evaluate those diagnoses and statements of
capability with the case findings. Careful assessment of evidence by
the DDS MC frequently reveals inconsistencies. DEs and nurses lack the
scope and depth of a medical doctorate to detect various subtle exam
and diagnostic findings and critically review treating source
statements. In Prototype states and under the Single Decision Maker
(SDM) models, the DE may make the medical assessment on some claims
without the input of a DDS physician; if the DE has questions or
concerns regarding aspects of the case, he or she consults with the DDS
MC. The SDM pilots and Prototype studies have shown at least a 70
percent rate of consultation with the MC. In non-Prototype DDSs,
currently the vast majority, the DE summarizes their findings in a
consult to the MC, who then completes the medical assessment on every
claim. It is not yet clear in the Commissioner's ``New Approach''
exactly what percentage of cases will have MC review or who will
prepare and sign medical decision documents.
UAPD and AFSCME continue to strongly support DDS MC assessment for
every single claim. Statistics have shown absolutely no improvement in
processing time or accuracy under SDM or Prototype, and a 70 percent
rate of MC consultation. The continued need for the DDS MC's input is
clear. In fact, the Agency's own report, #A-07-00-10055, published in
June 2002, noted increased claim processing times, appeal rates, case
pending numbers, and an erosion of quality in SDM and Prototype DDSs.
Current SSA promotional materials assure the public that doctors are
involved in the disability decision process, and the public expects
doctors to be utilized on most if not all claims. Imagine the response
of the public and the courts to denials of benefits by a DE or nurse,
despite endorsement from treating physicians.
The ``New Approach'' proposes using offsite Regional Medical Expert
Units to provide case consultation to DEs via DDS nurse and computer,
adding a computer and nurse between the DE and medical expert. This
change complicates the process without any apparent value added, and
causes some substantial problems. The DEs and DDS Directors have been
asked for input and have replied universally that remote Regional
Medical Experts will be much less efficient and user friendly than
walking down the hall to the familiar MC.
Medical licensure is another big problem with ``New Approach.'' MCs
are licensed by state. Most states require state medical licensure to
make diagnoses and order diagnostic tests, all very routine parts of
developing cases at the DDS. State medical licensure costs hundreds of
dollars a year and can be difficult to obtain due to lack of
reciprocity between states. Regional Medical Experts would find it
difficult and expensive to be licensed in every state of their Region;
Region 9 contains California, Hawaii, Arkansas, and Nevada. When
further testing needs to be ordered, this will be a major problem under
the ``New Approach'' if there is no state licensed DDS MC onsite.
The proposed replacement of the DDS Reconsideration Step by a
Regional Reviewing Official is especially troubling. How can a single
attorney better assess medical disability than the DDS team of MC and
DE? How will this attorney obtain adequate medical knowledge to make a
better medical assessment than the DDS? The low reversal rate of the
Reconsideration Step certainly does not devalue it. To the contrary, it
affirms the high quality of initial DDS decisions. With DDS accuracy
rates averaging above 90 percent, one should not expect substantial
reversal rates. Reconsideration reversals generally occur when new
evidence is presented or when disease progresses, not because of
errors. The DDS MC is a graduate of medical school as well as a
specialist in SSA disability. They are better qualified than an
attorney or nurse to do medical assessments of disability. The DDS
Reconsideration Step maintains integrity of the SSA Disability process
by providing a prompt second medical evaluation of the claim by DDS DE
and MC, and should not be exchanged for an attorney Reviewing Official.
Cost control is another fundamental role of the DDS doctor. The DDS
MC saves SSA millions of dollars every year. As noted earlier, doctor-
to-doctor phone contact obtains critical medical evidence from treating
sources quickly and at no cost. The DDS MC applies a strategic approach
to case processing, and development can cease as soon as a fully
favorable allowance can be made. Several times a week, I am able to
allow a case early in development by identifying a single impairment
severe enough to allow the claim. In cases involving multiple
diagnoses, early review of the medical evidence by the DDS MC
frequently leads to prompt allowance without costly time consuming
consultative exams. Nurses are untrained in this area, and Regional
Medical Experts would be less able to obtain phone evidence.
The DDS MC is an educator, training Disability Evaluators, new MCs,
and Consultative Exam vendors. He or she provide initial and refresher
medical training to the DEs and provide critical peer training to new
DDS MC. The MCs help the DDS find and train local CE vendors in program
requirements, then help monitor for quality. It is not clear how Remote
Regional Medical Experts might fulfill this important educator role.
In summary, the DDS MC is an invaluable component of the Social
Security Disability Program and should be retained in the ``New
Approach.'' Contrary to the goals stated, the elimination of the DDS MC
will increase errors, promote fraud, slow processing time, increase
expenses, make the DE's job tougher, and degrade the integrity of the
process.
MC contributions to decision accuracy are critical, preventing many
inappropriate allowances and denials at both initial and
reconsideration levels. The current DDS team of DE and MC is the most
effective way to accomplish the job. By statute, disability must be
from a medically determinable impairment, and no one is better suited
to assess this than a physician. The DDS MC provides strategic
professional case review and has medical knowledge deeper and broader
in scope than a DE, nurse or attorney. The MC is able to assess SSA
disability better than most treating sources and provides legally
defensible medical assessments, more defensible than those of a DE,
nurse or attorney. The DDS MC provides unparalleled professional
training to DEs and Consultative Examiners. Those stakeholders most
closely involved in the DDS process, UAPD, AFSCME, NADE, and NCDDD,
have voiced solid support for retaining the DDS MC onsite. Their
knowledge and experience in regulatory medicine and SSA regulations
makes them uniquely qualified to make this judgment.
If the DDS MC jobs remain threatened, overwhelming numbers of
valuable experienced DDS MCs will soon leave due to job uncertainty,
before any Regional Medical Experts even exist. Many groups have worked
diligently to show the Commissioner how to achieve her goals without
eliminating the DDS MC. For over a year now, 2,100 MCs have felt their
jobs threatened. We have obligations that will soon force many of us,
myself included, to seek more secure positions. DDS MCs take pride in
providing the best possible service to our SSA clients and training to
the next generation of DDS MCs and DEs. We offer an unparalleled
resource to the DDS and SSA. Let's not let that resource disappear!
I thank the Chairman and members of the Subcommittee for the
opportunity to present this statement and am pleased to answer any
questions you may have.
Chairman HERGER. Thank you. Ms. Everett to testify.
STATEMENT OF SHEILA EVERETT, PRESIDENT, NATIONAL COUNCIL OF
DISABILITY DETERMINATION DIRECTORS, JACKSON, MISSISSIPPI
Ms. EVERETT. Thank you, Mr. Chairman, for the opportunity
to provide written testimony today and comments before the
panel. I am the Director for the Mississippi DDSs, and as
President of NCDDD, represent the disability directors and
managers in over 54 DDS State agencies and over 16,000 State
employees. We too applaud the Commissioner's bold vision for
changes and want to thank her for inclusion of NCDDD in part of
the process to decide the final plans. We believe that DDSs are
in an excellent position to offer the Commissioner solutions as
we are considered to be a very cost effective, productive and
efficient part of the disability programs. Let me talk about
our solutions.
In the area of quality we do concur with the Commissioner's
definition that quality should be a combination or a balance of
accuracy, customer service, timeliness, cost and productivity.
Our solution will deliver consistency and quality across and
among all components. Our quality plan begins with sound
disability policy. We will work with the SSA to ensure that
their policy for disability is concise, clear and communicated
across all lines. For example, Social Security Disability
policy has evolved over the last several years from a purely
medical model to one that has more functioning in the listing
and in the policy. This has added inconsistency and increased
administrative costs.
Our solution would focus on consistently and adequately
communicating and applying policy to all components. We would
align the quality reviews with the policy component. We would
centralize end-of-line reviews. We would review all components
from the field office to the DDS to the proposed regional
officials, as well as OHA under the same rules. We would
institute and end-line or end-process reviews to ensure quality
at all steps in the process, and we would address the different
standards of evidence, for example, preponderance of evidence
standards used by the DDSs and substantial evidence standards
used by the ALJs. The results of our plan would improve
consistency and quality among all components and reduce
administrative cost.
Regarding quick decisions, we believe we can improve upon
the current infrastructure already in place in the State DDSs.
Our data shows that 19 percent of cases are allowed by DDSs in
25 days or less already. Our solution is to improve the
profile. We have identified to the Commissioner almost 50
impairments that would fit this category. We would have highly
trained and skilled examiners process these cases with
curtailed and expedited development independent of medical
consultant input, saving them for more complex cases.
Therefore, our result would improve the numbers of quick
decisions, reduce the times to process these, and process these
cases 26 million fewer dollars than a Federal component.
Regarding medical experts, the NCDDD solution does leave MCs in
the DDSs to process and rate cases along with all the other
duties that they perform. We would place these MCs in
electronic queues so that medical specialists could be shared
among all components. Our solution does make MCs available also
to OHA and ALJs for medical ratings so that we could improve
consistency and decrease administrative costs.
We also propose a service delivery expert. This is a highly
trained DE that would be able to make independent decisions on
denial claims, also saving medical consultant time for more
complex cases. We have recognized in the process that it does
take extra test time for MCs. This would be a great way to
balance and use those MCs and to decrease administrative costs.
We concur with the elimination of Recon, and creation of a
RO. However, we believe that State employees such as our
current disability hearing officers could also perform this job
at a cost savings to the agency. We concur with the need for
vocational specialists that are consistently trained the same
skill set from the same training used at all components to
improve consistency in the process. We also concur with all
demonstration projects and ``return to work.'' In summary, I
would like to thank the Commissioner for her bold vision, her
inclusion of NCDDD, and given the proper resources, we believe
that we could deliver her goals. Thank you.
[The prepared statement of Ms. Everett follows:]
Statement of Sheila Everett, President, National Council of Disability
Determination Directors, Jackson, Mississippi
Mr. Chairmen, thank you for your invitation to participate in this
hearing on our thoughts about Social Security Commissioner Jo Anne
Barnhart's ``New Approach to Changing the Disability Process''.
Before commenting on specific issues on the topic of today's
hearing, as the representative of the National Council of Disability
Determination Directors (NCDDD), I would like to restate the purpose of
our organization and reaffirm all our previous commitments to
participate in finding and implementing responsible solutions with
accountability by all stakeholders.
The NCDDD is a professional association of Disability Determination
Services (DDS) Directors and managers of the agencies of state
government performing the disability determination function on behalf
of Social Security. NCDDD represents 54 state Disability Determination
Services (DDS) agencies and over 16,000 staff nationwide. NCDDD's goals
focus on finding ways to establish, maintain, and improve fair,
accurate, timely, and economical decisions to persons applying for
disability benefits.
We applaud Commissioner Barnhart's bold vision for a new Disability
process. The Commissioner stated that she was guided by three questions
from the President as she considers changes to the Social Security
Disability program:
Why does it take so long to make a disability decision?
Why can't people who are obviously disabled get a
decision immediately?
Why would anyone want to go back to work after going
through such a long process to receive benefits?
Together with those questions, Commissioner focused on two over-
arching operational goals:
1. To make the right decision as early in the process as possible.
2. To foster ``return to work'' at all stages of the process.
The NCDDD had nearly every DDS Director's involvement in
formulating our response, reaction, and recommendations to the proposed
changes. We presented our position to Commissioner Barnhart and her
staff on April 7, 2004. At that time, we also discussed the need for
further research and input in several areas related to this new
position. Our membership is working to complete those assignments. We
have a meeting scheduled with the Commissioner and her staff in October
to discuss our findings. In addition, the NCDDD Officers have begun
meetings with the Office of Disability Policy to work together on
common solutions on disability policy. We are actively working with the
Commissioner and SSA to achieve our common goals in these areas.
NCDDD has offered several solutions and recommendations to the
Commissioner to help her achieve her goals and ensure consistency in
decision making. I will outline the recommendations we believe will
achieve the Commissioner's goals, best utilize the existing resources
and staffing, achieve consistency in the program, and allow us to be
good stewards of the trust funds. DDSs are the most efficient,
productive, and cost-effective component of the disability process.
Quality
NCDDD supports the Commissioner's plan to provide quality
disability decisions. We support her definition of Quality as accuracy,
customer service, timeliness, cost, and productivity. We concur with
this ``balance'' in case processing and believe that all components
should operate under this same definition. We support the concept that
quality reviews should be centralized and that the policy component
must play a central role in the review and assessment of quality. We
further support the concept that quality must be instilled at every
step in the process and quality measures should be applied consistently
within and across components. We support the Commissioner's plan to
instill an in-line, or in-process quality system that would address the
consistency between the DDS and Administrative Law Judge's (ALJ)
decisions, the variations among DDSs, and the variation among ALJs.
Most importantly, it would result in the right decision being made as
early in the process as possible.
NCDDD feels that any quality review process should be aligned
organizationally or in function with SSA's Policy component. Policy
must be written that is clear, concise, and which lends itself to a
consistent quality process. We recommend a culture change in which all
SSA components (Operations, Disability and Income Security Programs,
Quality Assurance and Performance Assessment, and Systems /eDib) are
committed to the same intent and definition of Quality. Currently, DDSs
operate under a preponderance of evidence standard while ALJs operate
under a substantial evidence standard. All components should focus on
the same outcomes. Currently some of these components stress competing
outcomes which result in problems within the program. For example,
stressing certain workload numbers at one component at the expense of
another component contributes to cost and time delays in the overall
process. Another example concerns policy that is written without regard
to the operational impact on case processing. Over the past few years
SSA Disability Policy has developed from a medical model to one where
there is emphasis on the functioning which is subjective and which adds
unnecessary costs, time delays, and inconsistency to the decision.
We are willing to work with SSA's Policy Component to ensure that
SSA disability policy is clear, concise, and consistent among DDSs and
across all components. We want to work with SSA to ensure an
operational success in this area and to help the Commissioner achieve
her goals. We strongly believe that the DDSs need the adequate
resources to achieve the Commissioner's definition of quality and
consistent application of policy.
Lastly, we believe that specific measures of success for these
quality outcomes should be SMART:
Specific
Measurable
Attainable
Relevant
Time based
Quick Decisions
We concur with the Commissioner that there ought to an expedited
decision making process for those cases where there is an obvious
disability. The NCDDD has identified nearly 50 impairments that might
potentially fit this category. We believe that the documentation
requirements have grown over recent years to include an expanded role
of the claimant's functional ability as opposed to a purely medical
model. This change in the documentation requirements has resulted in
increased documentation of claims and has decreased the consistency of
the process. We applaud the Commissioner's approach to identify those
``Quick Decisions'' and render these decisions expeditiously.
We believe that the DDSs already achieve this goal in the current
model and that with further definition of the criteria, the DDSs are
the best place to make these decisions. We believe that the placement
of this process at any other component adds an unnecessary level of
bureaucracy. In fact, even with the current process an NCDDD study
revealed that 19% of allowance decisions are made in less than 25 days.
We believe that we can surpass this goal with the current trained
disability staff and a refined and streamlined process of ``Quick
Decisions''.
We further propose that these decisions be given to the DDSs' most
experienced Disability Examiners so they can correctly and timely make
as many of these decisions with curtailed development and documentation
and independent of MC input. Using the current electronic environment
of case processing (eDib) these cases can be queued to the DDS
electronically, flagged for a ``Quick Decision'' review, and assured of
case processing of less than ten days in many instances.
The DDSs are willing to conduct the disability interview on these
cases provided we are given the adequate staffing and resources. Our
cost analysis shows that the DDSs can process these cases $26 million
dollars less than a federal component.
Medical Experts
The NCDDD's solution to the Commissioner's use of Medical Experts
is that we leave the DDS Medical Consultants (MC) in the DDSs so that
they can continue to provide medical ratings and continued to provide
the necessary ongoing medical training to adjudicator staff, assist
with medical/public relations, work with medical source recruitment,
and provide medical consultant training. We propose an electronic model
to pool and share DDS and other trained disability medical experts.
Currently, the process requires all of the DDS MCs as well as the SSA
Regional Office MCs to process the disability workload.
Early information has demonstrated increased task time in reviewing
the medical evidence on-line and preparing the electronic medical
ratings that are required in the eDib process. However, it is hoped
that some of this will be offset by the ``end-to-end'' time required of
the total disability process. The benefits gained by having the ability
to share these resources in an expanded electronic pool will further
add consistency to medical ratings. To further enhance consistency, we
propose these medical experts provide medical ratings to all
components: DDSs, Reviewing Officials, and Administrative Law Judges
(ALJs). Currently, resources are expended with the purchase of
consultative examinations and medical source opinions requested by
ALJs. We recommend making trained disability MCs available to ALJs who
will provide medical ratings. This will ensure the consistency of
medical evaluations and provide the best usage of the Agency's
resources.
We believe that leaving these MCs in the DDS can maximize the
efficiencies, accountability, and productivity of this staff. By
placing cases for these MCs in an electronic queue, SSA gains the added
benefit of ensuring consistency and of providing specialists to those
areas where currently there is none. DDSs support this opportunity for
expanded MC specialists availablility across the nation and to all
compontents.
Service Delivery Expert Proposal
DDS Directors strongly support an enhanced role for experienced
Disability Examiners (DE) in the decision making process. While we
support an expanded Quick Decisions process, we maintain that this is
just one area whereby a highly skilled and experienced DE should be
able to recommend disability decisions. NCDDD recommends a triage
decision making process whereby experienced DEs are able to make
decisions on those obvious allowances and denials. This reserves
valuable agency resources and MC time to be devoted to those more
complex medical decisions. We believe that this is an integral step in
the process ensuring that the trained medical resources are best
utilized at the appropriate steps in the process.
Currently, using a test model, there are DDSs who utilize a similar
model which has demonstrated efficient, cost effective, and quality
decisions on those cases. We are requesting that the remaining DDSs be
allowed to participate in this process. We will work with SSA to
develop and maintain the training to ensure quality and consistency in
this area.
Elimination of Reconsideration and Creation of Reviewing Official
NCDDD supports the elimination of the Reconsideration step as it
currently exists.
While the Commissioner's plan calls for a federal Reviewing
Official position as the first level of appeal, NCDDD proposes that
this function could be achieved by a state Reviewing Official that
would perform an on-the-record review of the file, give an expanded
explanation of the reasoning for a denial, process expedited decisions
in allowance claims, and provide feedback to the quality component for
purposes of policy and decisional accuracy. While the Commissioner's
proposed plan calls for an attorney to handle this appeals step, we
propose that experienced DDS staff with the appropriate skill-sets can
also be effectively employed to achieve this goal. For example, the DDS
Disability Hearing Officers currently conduct evidentiary hearings that
have received very good feedback from various components, including
OHA.
The DDSs have long been under-resourced in terms of providing an
expanded rationale. However, previous tests demonstrated effectiveness
in this area. The DDSs support the expanded rationale but would also
need the necessary resources to implement this. We believe that there
is already a structure in place at the state DDS level that can address
this appeal level within the parameters outlined above and we are very
concerned about adding another administrative layer and the increased
cost associated with this. The state model for appeals saves over $21
million in administrative costs for SSA.
Vocational Specialists
NCDDD supports the use of Vocational Specialists (VS) throughout
the disability process. We propose the following process across all
components:
Updated vocational policy
Vocational training for all adjudicators and VSs for all
components
Develop a curriculum and training plan for VSs
VS certification by SSA
Identification of VS in all components available for
consultation
Electronic queue of VS via the electronic process
The current model is lacking since SSA has not devoted the
resources to a comprehensive vocational training package such as the
basic training model available for DEs. This has been left up to the
various DDSs to develop their own vocational training packages, leading
to variations among DDSs in this area. There are even greater
differences between DDSs and ALJs in regard to Vocational Specialist
training, causing inconsistency between components. We advocate a
consistent training module for all VSs and that this staff should be
utilized consistently among DDSs and across all components via the eDib
process. NCDDD will work with SSA to develop a Vocational Specialist
training curriculum. We believe this would ensure consistency within
and across components. While this expanded vocational training would
require resources, we believe that overall administrative costs can be
curtailed as all components use the same vocational criteria. As
vocational evidence and analysis is consistently applied earlier in the
process, the agency will realize consistency in case processing as well
as administrative cost savings.
Demonstration Projects
NCDDD supports the various ``return to work'' initiatives endorsed
by a new disability plan and we welcome the opportunity to participate
in demonstration projects of this nature. Since these demonstration
projects do not require the electronic infrastructure for
implementation, we recommend that SSA begin this process immediately.
We support the notion of early intervention in this area and believe
that such efforts are not only cost-effective but also serve as a
social/psychological boost to potential disability applicants involved
in the process. We support the added resources needed to fully fund
such endeavors, since we believe that such outreach would also increase
disability applications.
We strongly support the transitional (youth) initiatives and
believe that public Vocational Rehabilitation should play a major role
in such efforts. We further support ongoing continuation of medical
benefits as part of the claimant's rehabilitation process and any other
changes that would entice disabled individuals to return to work.
In conclusion, we support the Commissioner's desire to structure a
disability program that renders the right decisions as early in the
process as possible and that fosters ``return to work'' at all stages
in the process. We share Commissioner Barnhart's definition of quality
and her goal of improved consistency in decision making within and
across components. We are appreciative of the fact that Commissioner
Barnhart has solicited input from NCDDD in an active manner. We are
continuing to provide information to her that will help her to achieve
her stated goals. We are also appreciative of SSA's recent efforts to
include NCDDD in active discussions regarding disability policy. The
DDSs will need the necessary resources to effectively implement these
changes. It is our understanding that an average DDS cost-per-case is
$400 as compared to the nearly $2000 cost-per-case at the OHA level,
making us the best value in the entire SSA disability process. We are
confident that by working together we can achieve our common goal of
improved service to current and future disabled Americans.
Mr. Chairmen, thank you for the opportunity to provide this
testimony today.
Chairman HERGER. Thank you, Ms. Everett. The gentleman from
Florida, Chairman Shaw, to inquire.
Chairman SHAW. Thank you. Hal, it has been 24 years since
you and I first came to Congress. We look a little different. I
never thought at that time that either one of us would have the
word ``Chairman'' before our name for anything.
Mr. DAUB. I enjoyed being your classmate, and I enjoy being
on this side of the microphone now. It is a pleasure to be with
you today, thanks. I hope you didn't take too much time to
calculate that 24-year figure.
Chairman SHAW. I am pretty quick about that. Hal, looking
at this, and maybe you are not the right person to direct this
question to, but do any of the Commissioner's recommendations
require congressional action to implement them?
Mr. DAUB. In my view, none of them.
Chairman SHAW. So, these are all administrative processes?
So, none?
Mr. DAUB. That can be done without further authorization.
My last point in my testimony was the electronic claims
processing, the eDIB system, as we are referring to is
fundamental. That has to be in place as the launching pad for
this to work. Assume that that gets done, then reforming the
process administratively in generally the way that the
Commissioner is attempting to suggest would be helpful. It is
still going to run up against a wall of needing to look at the
one problem that we have, which is, if you look at the
inconsistencies between the Americans with Disabilites Act
(P.L. 101-336) goals, and the definition, the 50-year-old
statutory definition of ``disability,'' which has never been
changed, and if you look at the improvements that have been
made in medications, rehabilitation, and therapy, we have made
so much progress, and we have a very different workplace, but
we are still saying to people, you are disabled, you cannot
work, and if you try to work and have a little dignity and a
little extra money, you are going to lose your health benefits.
So, Congress does have, as the next step, a very important
opportunity to look at the statutory definition, which in turn,
relates back to this whole idea about whether people get hung
up for, sometimes, 4 and a half years in this current process
that is pretty much based on an old definition.
Chairman SHAW. The appellant process, which the
Commissioner proposes to shorten by removal of one step, that
is not in the statute, that is in the regulations?
Mr. DAUB. The appeals process, everything flows inside of
the current Commissioner's prerogative.
Chairman SHAW. That is what I wanted, to have that in the
record. Ms. Marshall, while NADE supports the Commissioner's
proposal to replace the reconsideration step of appeals with a
decision by a RO, you are not convinced that such a step
improves customer service. How would you change the
Commissioner's proposal so that it would improve customer
service?
Ms. MARSHALL. We are not sure exactly what role the RO is
going to be taking right now. We do think that having this
person as an attorney rather than having the current process
that we have with the State Disability Hearing Officers, would
make it more adversarial, which would be less customer friendly
we think. The current system, where we have disability hearing
officers who are programmatically trained, as well as trained
in the process, would work, we feel, would be more friendly to
the claimant, more customer friendly and more effective, and
because we think that medical input, and attorneys are not,
necessarily are not trained in the medical aspects of the
disability program, they would not, the decisions they make
would be, we think, probably less accurate.
Chairman SHAW. Ms. Everett, the Commissioner, in her
testimony, mentioned some of the things that were, in a very
favorable light, I might say, to the Mississippi office, I
assume that is your office in Jackson?
Ms. EVERETT. It is.
Chairman SHAW. Congratulations.
Ms. EVERETT. Thank you.
Chairman SHAW. In your testimony you suggest that having
State disability determination staff conduct certain disability
interviews, that was on page 6, and appeals processes, that was
on page 8 of your testimony, would save about 26 million and 21
million respectively in administrative costs for the SSA. You
also suggest the need for additional resources to implement
such a plan. Could you explain how you arrive at these figures,
and what level of additional staff and resources that you have
in mind?
Ms. EVERETT. We are basing our information on the best data
that we have. We certainly would welcome any independent review
and assessment of that by SSA, who would have more access to
data. We certainly take the opportunity to compare current
infrastructures already in place in the DDSs, and the current
infrastructures which would need some additional resources, but
if you had to create independent Federal components to set up
both independent units with all the ancillary functions at the
salary differences between the State and Federal levels is how
we determined the cost differences there. Of course, we need
the additional resources primarily if we take on additional
tasks in addition to keeping up with the additional workload.
Chairman SHAW. Thank you. Mr. Chairman?
Chairman HERGER. Thank you. The gentleman from Maryland,
Mr. Cardin, to inquire.
Mr. CARDIN. Thank you, Mr. Chairman. In the interest of
full disclosure, let me acknowledge that I was trained as an
attorney. I notice some of you are recommending that we change
some of the requirements here. As I said in the beginning, I am
concerned about how long it takes to get through the process.
All of you have expressed the same concern. The Commissioner
has expressed the same concerns. I also am concerned about the
independent review and the fact that we try to maintain a
truth-seeking process rather than an adversarial process.
With that in mind, I want to concentrate on two of the
suggestions that have been made by the Commissioner that causes
me at least to want more information about. The first is that
the ALJ, if he or she disagrees with the ROs, has to document
or show the difference as to how he or she reached that
judgment. I am concerned that that could compromise the de novo
or independent review by the ALJ if that person has the burden
to justify a change from the RO.
The second, and many of you have talked to this, is the
elimination of the Appeals Council. I have been told by staff
that the statistics show that about one out of every four
matters that go through the Appeals Council, there is some
relief to the claimant. In many cases it is remanded, but there
is some relief. I am concerned that the District Court is not
well suited to deal with truth seeking, is more adversarial,
and it might be more difficult for that type of relief to be
granted at a District Court level rather than within the agency
at the Appeals Council. So, I would welcome comment from any of
our panelists in regards to these two issues, whether they
share these concerns or can help me in alleviating these
issues. Dr. Dann?
Dr. DANN. Thank you. I would like to reply to that. With
the current DDS statistics of 90 percent accuracy and above, as
noted by Federal agencies, I am very concerned that after
typically two runs through the DDS at 90-percent accuracy, the
case then proceeds on to the ALJ and we have a reversal of the
DDS decision 61 percent of the time. There currently is no
critical quality review of ALJ decisions, and I believe that is
what the Commissioner was getting at by having a panel of
people to review the ALJ decision. I definitely admire your
quest for the truth, and I think that is what we are all here
for.
I would just note that, unfortunately, having been a
physician for 24 years now, medicine is not an exact science.
There is a lot of subjectivity to it, and unfortunately, not
everybody can assess their own capabilities accurately, in fact
not even their own physician necessarily assesses their
capabilities accurately. When I was practicing clinical
medicine I was my patients' advocate and did whatever I could
for them. I was not their judge, and so I think that it is very
important to have a review of what we get from community
physicians by a physician to make sure that what is being
stated about a person's capabilities is accurate.
Mr. CARDIN. Appreciate that. Hal?
Mr. DAUB. At the Appeals Council, about 2 percent of the
cases get approved, which is about 1,500 cases out of 77,000
get approved. I need to go back and look at this point that you
make that it is one out of four, I haven't looked at it that
way before, who get relief. I think it proves the point when
you see the reversal rate, and when you look deeper into that
reversal rate and you see the great disparity between
jurisdictions as to how cases are resolved. That reversal rate
does raise questions of consistency, when you take someone who
is well trained and has been deciding these cases in DDS for 20
years with great knowledge, particularly of the larger
caseload, which is mental impairments. It is not like in the
old days when it was physical, broken arms and bad backs and
things of that sort. Now, much more of the caseload is mental
impairment, that are subjective. You begin to ask yourself how
do you step back from the existing system and adapt what we
have, given the constraint of keeping a fair process. Certainly
we can do better than putting somebody through 5 months to wait
from point of onset, then 2, 3, or 4 years in a process,
knowing that if they stay in the system long enough and appeal
it long enough, with the record never being closed, that they
are probably going to get a reversal and probably going to get
their benefits.
Mr. CARDIN. Understand that first.
Mr. DAUB. So, the RO then fills a need here to do a couple
of things I think. This is so, whether they are attorneys or
not; I happen to think that we will get a better quality of a
file moved into the ALJ system if they are attorneys. They may
not have as much medical knowledge, but neither does the judge
who is going to ultimately look at that case. We have trusted
the judge to be able to deal with the medical evidence, so we
can trust the RO to put together a more objective file, and the
judges will tell you, I think, that one of the biggest problems
they have is that the cases, when they come on appeal, are not
complete. So, I think that that is a wise step, and it is worth
the risk to get an overall better result.
Mr. CARDIN. That is a good point. I just wanted to
underscore the ALJ is still the first opportunity independent
of the agency, and that that is important to maintain that. I
think you make a good point though that it is important that
the ALJs have the opportunity to do this objectively, and
having a good complete file in some orderly way is important as
long as there isn't additional pressure, because there are some
who already think the ALJ has pressure from the agency, as long
as there isn't the pressure for conformity to the agency's
position more so than to what the ALJ thinks is the
appropriate,
Mr. DAUB. We put the judge in a tough position,
Congressman, to wear the hat of a judge in the hearing, not the
courtroom but the hearing room, and then also have to assure a
completeness of the record as if they were sort of adversarial
to the claimant who is sitting there in the ALJ hearing room.
It is an awkward situation we put the judge under, in a way, to
wear two hats like that since it is not adversarial, but 90
percent now almost I think or 85 percent of all the claimants
that come, come with an attorney into that hearing room.
Mr. CARDIN. Thank you. Thank you, Mr. Chairman.
Chairman HERGER. I thank the gentleman. The gentleman from
Texas, Mr. Brady, to inquire.
Mr. BRADY. Well, thank you, Mr. Chairman, and thank you for
holding this hearing. I apologize that I missed the earlier
testimony, but I got to look at it last night for a period.
Throughout all the discussions on making this a better system,
I continue to hear the complaint that the disability cases and
the information is not complete early enough in the process,
and it seems in some way that I keep looking for an incentive
or some requirement that forces these cases really to be
complete at every stage, each stage in the process. It seems
that it is better for the claimant, it is better for you as
decisionmakers, and my question, a simple layman's questions,
is what can be done to sort of front-load the completeness and
accuracy of a claimant's record, both medical, occupational,
all that? Ideas from the panel?
Mr. BUFFALOE. If I may start on that since I represent the
managers and the supervisors in the Social Security field
offices where the claim is taken. Certainly that has been an
issue as long as we have had disability claims. Part of the
problem is we do have two components involved, obviously, but
field office claims representatives who are responsible for
initiating the application have no medical training. That is
part of why my organization feels that on the quick decision
piece certainly, that with some additional training, rather
than having that handoff and then starting the process after we
have handed it off to the DDS, that with some additional
medical training we could avoid that hand-off in many, maybe
most, of the quick decision cases, and then only later hand off
the ones that have to go on for additional review and start the
normal DDS, ALJ process, but that has been something that has
been with all of us that deal with the disability programs, the
fact we initiate the claim, our claims representatives, but
they don't have the medical training. So, we do the shotgun
approach. We try to gather information on all possible
disabilities even though there may be only one or two they have
that actually may be pertinent to a disability decision. We
would have to gather everything, and then when the DDS gets
involved, they can focus in on what are the key things that may
in fact turn out to be an approval of a decision.
Mr. BRADY. Isn't one of the roles of the claimant's
representatives or attorney to create as complete a package as
early in the process? Yes, ma'am?
Ms. EVERETT. Sometimes we have competing goals. I mentioned
that we concur with the Commissioner's definition that quality
be the combination or the balance between all those components.
Sometimes the DDS's productivity expectations drive some of
this. Part of what I reference, I talk about the quality all
throughout the process. It must begin with the field office. It
must be consistently applied all throughout is part of the
problem also. The policy speaks to some of it.
In the past few years, the policy evolved from a more
purely medical model to one in which there is more subjectivity
and functioning in the listings in the policy. Mr. Daub
referenced the fact that we see more mental claims now. We see
more allegations of mental claims. Whether or not we see more
mental patients is another area for discussion, but as you
evolve this policy from a more purely medical model to one that
has introduced more functioning, therefore more subjectivity,
it becomes harder to define what is a complete record. Then of
course we all recognize that between the time a case is decided
at the DDS, and the 18 months or 2 years that it is seen by the
ALJs, it is a different case.
Mr. BRADY. Sure.
Ms. EVERETT. So, it is a very complex picture.
Mr. BRADY. Yes, sir?
Dr. DANN. Congressman, you have hit one of the nails on the
head. One of our difficulties in the DDS is obtaining good
quality evidence, and in a timely manner. Right now, the way
this is done is requests go out to treating physicians for
their information. That is completely voluntary, whereas in
other legal, medical-legal programs, a subpoena goes out and
the record comes. There is no choice of whether or not to send
that in. I would ask that at some point the Commissioner and
Congress consider whether or not the medical records for a
Federal decision like this might be worth a subpoena to obtain.
You could certainly get better records faster.
Mr. BRADY. In real life, what kind of impact would that
have, timely return of requested medical records?
Dr. DANN. I can tell you on both sides of the coin. I
practiced occupational medicine for a long time before I joined
the DDS, and I can tell you in my very fast-paced clinic that
when record requests came in for Social Security information,
we would try to get to them, but they were very low on our
priority list. There was not a substantial amount of
reimbursement for those records, and unfortunately, they did
not always go out when they should have, because of that, I
think that we really should consider the possibility that these
records are important legal documents, and that maybe they are
something worth a subpoena.
Mr. BRADY. Thank you.
Mr. DAUB. Congressman, let me comment, just briefly. It
probably is always going to be a very frustrating process at
the early stage of intake, but the eDIB process of
electronically building the input more thoroughly and more
consistently will help. Then, it will improve even more with
Secretary Thompson's idea of moving to electronic medical
records. We are starting to see new forms of communicating.
Physicians now can dictate and have their audible voice
actually computer type the report. I have watched this myself
in some offices. Our independent board goes out twice a year to
field offices, and I have tried to read through a paper file.
You have to be a magician to read the handwriting that comes,
not only in original form, but over the fax. To decipher it,
you spend hours, for nurses, physicians, and consulting groups,
to just try to figure out what somebody wrote, even if you get
the records. So, a lot of the things we have to do are just to
improve the gathering and the clarity of information. I think
one of the things the Commissioner is saying is that if we
spend more time in the beginning on that, then a lot of the
rest of the process isn't going to be so prolonged and so
costly.
Mr. BRADY. If you think the handwriting is bad, wait until
that software tries to decipher a Texas accent.
[Laughter.]
The only other point I would make, Mr. Chairman, is I
think, one, those are good ideas. Two, I still think there is a
way, especially, I think it is great, I think it is important
and vital really that claimants have the ability to have
representatives or attorneys moving their case through this
process. I think it is that attorney's and representative's
responsibility to make that document, an application as
complete and thorough as early as possible in the process. I
sometimes hear comments on the opposite side of that where that
may not be happening. At some point I think we need to explore
their role, if you are getting paid to advocate and complete,
then we probably need to require that type of job be done so
that the other decision makers can hopefully reach a decision
faster and more accurately. So, thank you, Mr. Chairman.
Chairman HERGER. I thank the gentleman. His time is
expired. The gentleman from California, Mr. Becerra, to
inquire.
Mr. BECERRA. Thank you, Mr. Chairman. Thank you to all of
you for your testimony. Let me see if I can focus on just a
couple of items that were discussed with the Commissioner a
bit, and perhaps, Chairman Daub, you could help me a little bit
here because of the recommendations made by the board itself,
the Advisory board. My understanding is that the board also
recommended or at least suggested consideration of this idea of
going straight from the ALJ determination to the District Court
for review.
Mr. DAUB. A Social Security Court.
Mr. BECERRA. A Social Security Court, right, which would be
a totally new entity within the Federal Court system.
Mr. DAUB. Maybe very responsive to your concern a moment
ago.
Mr. BECERRA. Yes, and I think that could be.
Mr. DAUB. That takes a statutory change, though. That is
something you all are going to have to do.
Mr. BECERRA. Did the Advisory board say where we would get
the money to establish a fully new court system?
Mr. DAUB. We think that if you look at the way that happens
now, if there is time to answer your question?
Mr. BECERRA. Please.
Mr. DAUB. You are looking at a huge amount of time and
resources being absorbed now in this whole process of constant
appeal over time. With no closing of the record, you just keep
adding a little to it and it changes, and the medical condition
changes. So, there is a lot of efficiency that can be added.
When that case gets to a District Court or to a magistrate
under the current process, they sort of describe it as a shoe
box. I have talked to magistrates, and they say they get the
case and it is in sort of a confused state. Then they look at
it, and it is not nearly in the shape they want it in, so they
automatically order a remand of the case. Back it comes up
through the system, and the lawyer got $2,000 simply for going
for 5 minutes and saying, ``Let us have a remand.'' Federal
judges don't want to look at these cases. So, it will go to a
specialized court.
Mr. BECERRA. What about trying to streamline the process
after the ALJ before the District Court, where you have a
functioning administrative review of the ALJ's decision, in
essence, the appeal of the ALJ's decision, but handled
administratively so you do it in-house with the expertise that
you have without creating an entirely new court system or using
the Federal Court.
Mr. DAUB. I would certainly be open to that approach,
except a lawyer is also going to say there was no lawyer in
there in that hearing room on the other side of that case to
start with.
Mr. BECERRA. I think that trying to avoid the adversarial
conditions that exist in a District Court or in most of these
settings to begin with, I think it is always good to try to
have this be as consumer friendly as possible.
Mr. DAUB. We agree.
Mr. BECERRA. No one is trying to deny someone benefits if
they are entitled to them. What we are trying to do is develop
the best record, so it seems to me that we almost lose the
spirit of what we are trying to do in these disability claims
if we make it too adversarial, because this should not be a
hostile setting. We are not trying to prove that you are not
disabled. We are trying to get the best evidence to prove
whether or not you are entitled to the benefits, and to me,
again, knowing how the courts work and how bogged down they
already are, and how expensive they are, especially for a
claimant to use, it seems to me to jump directly to a court
level, rather than trying to refine the decisions, I think the
idea that the Commissioner has of making sure that up front
decisions are made competently, so that from thereon in you are
developing a good record is obviously the best approach first.
I would hope that we would avoid trying to circumvent the
process or shorten it to try to expedite a final decision, and
instead, take something to the Federal Court level, where the
rules are much more rigorous, it will not be consumer friendly
because there it is a court, so it is naturally adversarial.
There is where the claimant will lose all touch with any
humanity that exists in a system where hopefully you are not
trying to undo a claimant's benefits claim.
Mr. DAUB. With 5 or 6 million people that are on the
disabled rolls today, costing the Federal Insurance
Contributions Act Trust Fund about $100 billion, and when you
begin then to look to 1 person who spends the agonizing 4 to 4-
and-a-half years in that appeals process today.
Mr. BECERRA. Absolutely, I don't think anyone.
Mr. DAUB. So, the cost of the court that we are talking
about should not be all that.
Mr. BECERRA. I don't think anybody should go through a
process that runs, that is why we are here. Let us not try to
accelerate a process and send them to purgatory at the same
time that we are telling them we are trying to get them
benefits. Let me ask one last question, and, gosh, it is always
the case that you run out of time.
Chairman HERGER. The gentleman's time has just about
expired.
Mr. BECERRA. Chairman, I will just ask this last question.
The record is closed after the ALJ makes a determination under
the proposal made by the Commissioner. Right now there are
certain circumstances under which a record can be, additional
evidence can be supported for the record even after the ALJ has
submitted his or her decision. It seems to me that there is a
good claim that can be made that we should at least have an
exception, a good cause exception to closing the record.
A quick example would be you have an individual who has
Multiple Sclerosis (MS) or claims to have MS, and is therefore
disabled. At the point that the ALJ makes the determination,
the determination is, no, that is not enough of a disabling
condition to stop you from being able to function. Time goes
by. The appeals process goes by. All of a sudden at this stage
now the medical determination is that this person is disabled
as a result of MS, but because the record is closed once the
ALJ decided, that new evidence can't be considered. It would
seem to me that any recommendation, they should have some
latitude for the claimant so that at least good cause, if there
is good cause, then why reject good evidence from being
considered?
Mr. DAUB. That should always be the case, and I think even
under the Commissioner's proposal that will practically be the
case because a judge will still have the authority at some
point to find good cause. The problem is now that even if it is
past the ALJ and is up at the Appeals Council, they can still
enter the evidence in. In most cases that ought not to be
allowed. You will never get finality at any stage of the
proceeding.
Mr. BECERRA. Well, that is why you say it has to be good
cause.
Mr. DAUB. I think you are correct.
Chairman HERGER. The gentleman's time has expired.
Mr. DAUB. I think you make a good point, Congressman.
Mr. BECERRA. Thank you very much.
Chairman HERGER. Dr. Dann, if you could please provide us
with more information regarding your statement that eliminating
the DDS medical consultant will waste money, encourage fraud,
delay legitimate allowances, and further burden DDS examiners?
Also, do you have any suggestions that could be implemented
right away that would further discourage disability applicants
from attempting to defraud the system?
Dr. DANN. Yes. The DDS medical consultant saves money in a
great number of ways, number one, we frequently are able to
avoid further development of the case. We basically have enough
evidence to come to a decision and can avoid a consultative
exam. Those typically cost $100 to $150 per claimant. We can
avoid erroneous allowances. An allowance in today's Social
Security system averages a value of $100,000 to $200,000.
Unfortunately, allegations and subjective evidence are not
always the truth, and they do need to be critically assessed.
There is a large difference to us whether a patient uses a cane
or needs one. We need to look for objective findings to support
the subjective allegations, swelling, atrophy, deep tendon
reflex changes.
The DDS MC avoids fraud by looking for that type of
findings in the record and looking for inconsistencies. It is
not unusual for me to get a statement from a treating physician
that their patient cannot sit more than 6 hours a day, or not
even 6 hours a day, and cannot walk or stand 2 hours a day.
That would make them an automatic allowance by our standards,
and yet in the same record I find evidence that they live
alone, keep house, do their grocery shopping and ride a
bicycle. Unfortunately, exaggeration of symptoms is a part of
multiple claims every day. That is what I do for a living.
On continuing disability reviews, it is very important to
be familiar with the statutes here. There is a medical
improvement review standard. We are not necessarily reviewing
how a patient is doing today. We are actually reviewing how
their condition today compares to when they were allowed. It is
an important legal principle because we do not want to clutter
the courts with decisions going back and forth, disabled here,
not disabled there.
It turns out, unfortunately, that if a bad decision takes
place, that decision is perpetuated literally ad infinitum,
because I have seen cases, I assure you, of patients that had
normal examinations and were assessed by the DDS as having very
little impairment, no disability, or maybe even a medium level
capacity for work, and because of some very compelling
subjective complaints given to an ALJ, or possibly a note from
their doctor saying that they can't do these things, the
decision of the DDS was ignored, and the ALJ allowed the claim.
Erroneous denials, on the other hand, certainly are not only a
huge disservice to the disabled individual, but they end up
costing us a great deal later in reconsideration and OHA
process. It is important to have a physician looking at the
record to come up with the true medical assessment. Most
importantly, we are already in place, and I feel that we have a
lot of experience and a lot of good skills to offer to the
system.
Chairman HERGER. Thank you very much, Dr. Dann. Certainly
while we want to ensure that those who legitimately are
deserving of the services, we also by the same token want to
make sure that those who are not, are not defrauding the system
and the American taxpayers. Thank you very much. I want to
thank each Member of this panel for your testimony, and you are
excused.
Chairman SHAW. For the final panel this afternoon, we have
Marty Ford, who is a Co-Chair of the Social Security Task
Force, Consortium for Citizens with Disabilities (CCD); Thomas
Sutton, who is Vice President of the National Organization of
Social Security Claimants' Representatives (NOSSCR) from
Langhorne, Pennsylvania; James A. Hill, who is President of the
National Treasury Employees Union (NTEU), Chapter 224,
Cleveland Heights, Ohio; Laura Zink, who is a member of the
Federal Managers Association (FMA), Social Security, Chapter
275, Phoenix, Arizona; and Ronald Bernoski, who is President of
the Association of ALJs from Milwaukee, Wisconsin. Thank all of
you for being here with us today. We have your full statement
which will be made a part of the record, and we would ask you
to summarize as you see fit. Ms. Ford, we will begin with you.
STATEMENT OF MARTY FORD, CO-CHAIR, SOCIAL SECURITY TASK FORCE,
CONSORTIUM FOR CITIZENS WITH DISABILITIES
Ms. FORD. Chairman Shaw, Members of the Subcommittee, thank
you for this opportunity to testify. Improving the disability
determination process is critically important for people with
disabilities, and we applaud Commissioner Barnhart for
establishing this as a high priority. We also applaud her work
in making the design process an open one. She has sought the
comments of all interested parties including beneficiaries and
consumer advocacy organizations. We believe the resulting
discussions will have a positive impact on the final proposal.
We have submitted a detailed written response to the
Commissioner, and I will highlight our key recommendations
here.
We strongly support efforts to reduce unnecessary delays
and to make the process more efficient so long as changes do
not affect the fairness of the process to determine entitlement
to benefits. Emphasis on improving the front end of the process
is appropriate since changes could substantially improve the
quality of decisionmaking and possibly reduce the need for
appeals in some cases. However, any changes to the process must
be measured against the extent to which they ensure fairness
and protect the rights of people with disabilities. We have
made the following major recommendations.
There should not be a separate appeal from the reviewing
official to the ALJ level. The record should not be closed
after the ALJ decision. If the record is closed, there should
be a good cause exception to submit new and material evidence.
The claimant's right to request review by the Appeals Council
should be retained. Any changes considered for the Appeals
Council should be postponed until SSA determines whether the
electronic folder and other changes improve the timeliness and
quality of the work at the Appeals Council stage. The
independence and quality of medical experts, consultative
examiners and vocational experts need to be ensured.
We strongly support efforts to implement the eDIB folder
since it has great potential for improving the adjudication
process and is critical to the success of the proposed changes.
An overarching concern is whether claimants and their
representatives will have appropriate access to the files. We
have also urged the SSA to ensure protection of original
documents by requiring that exact, unalterable electronic
copies of all originals be permanently maintained in the
electronic folder.
The Commissioner's proposal would create a new RO position
prior to review by the ALJ. We support the RO's ability to
obtain additional evidence, narrow issues in the claim, and
issue a fully favorable decision. However, we recommend that
there not be a separate appeal from the RO level to the ALJ
level. Further, to guarantee the claimant's right to a de novo
hearing at the ALJ stage, the RO's decision should not be
entitled to more weight or a presumption of correctness when
considered by the ALJ.
The Commissioner's proposal would close the record to new
evidence after the ALJ decision. While we strongly support the
submission of evidence as early as possible, there are many
legitimate reasons why evidence it not submitted earlier and
why closing the record could be harmful to claimants, including
changes in the person's medical condition, and the fact that
the ability to submit evidence is not always in the claimant's
or representative's control. We believe that the claimant
should retain the right to submit new and material evidence
after the ALJ decision.
The Commissioner's proposal would eliminate the Appeals
Council and establish an oversight panel to review decisions by
ALJs. We believe that the claimant's right to request review by
the Appeals Council should be retained. The Appeals Council has
important functions that benefit claimants, such as the ability
to allow new and material evidence, review of improper ALJ
dismissals and denials of reopening requests, review of ALJ
unfair hearing allegations, and review of non-disability
issues. If the Appeals Council is not retained, we believe that
its function should be carried out by some other appropriate
entity within the SSA. We fear that elimination of the Appeals
Council and its important functions could increase the caseload
of the Federal Courts. In any event, consideration of
eliminating the Appeals Council should be postponed because
proposed changes earlier in the process, combined with the
electronic folder, may relieve pressure on the Appeals Council.
Again, thank you for this opportunity to testify, and I am
happy to answer any questions you may have.
[The prepared statement of Ms. Ford follows:]
Statement of Marty Ford, Co-Chair, Social Security Task Force,
Consortium for Citizens with Disabilities
Chairman Shaw, Chairman Herger, Ranking Member Matsui, Ranking
Member Cardin, and Members of the House Ways and Means Social Security
Subcommittee and Human Resources Subcommittee, thank you for this
opportunity to testify regarding the Commissioner's proposal to change
the disability claims process.
I am Director of Legal Advocacy for The Arc and UCP Public Policy
Collaboration, which is a joint effort of The Arc of the United States
and United Cerebral Palsy. I am testifying here today in my role as co-
chair of the Social Security Task Force of the Consortium for Citizens
with Disabilities. CCD is a working coalition of national consumer,
advocacy, provider, and professional organizations working together
with and on behalf of the 54 million children and adults with
disabilities and their families living in the United States. The CCD
Social Security Task Force focuses on disability policy issues in the
Title XVI Supplemental Security Income program and the Title II
disability programs.
We applaud Commissioner Barnhart for establishing as a high
priority her administration's efforts to improve the disability
determination process. We also applaud her work in making the design
process an open one. She has sought the comments of all interested
parties, including beneficiaries and consumer advocacy organizations,
in response to her initial draft. We believe the resulting discussions
will have a positive impact on the proposals as they are refined into
official proposals for rulemaking. We have submitted a written response
to the Commissioner on her initial draft proposal and I will highlight
our key recommendations here.
For people with disabilities, it is critical that SSA improve its
process for making disability determinations. People with severe
disabilities who by definition have limited earnings from work often
are forced to wait years for a final decision. This is damaging not
only to the individual with a disability and his or her family, but
also to public perception and integrity of the program.
We strongly support efforts to reduce unnecessary delays for
claimants and to make the process more efficient, so long as the steps
proposed do not affect the fairness of the process to determine a
claimant's entitlement to benefits. Further, changes at the ``front
end'' can have a significant beneficial impact on improving the
backlogs and delays later in the appeals process, by making correct
disability determinations at the earliest possible point. Emphasis on
improving the ``front end'' of the process is appropriate and
warranted, since the vast majority of claims are allowed at the initial
levels. Any changes to the process must be measured against the extent
to which they ensure fairness and protect the rights of people with
disabilities.
Our comments primarily address the proposed changes at the
reviewing official and later stages, with the following major
recommendations:
There should not be a separate appeal from the Reviewing
Official to the Administrative Law Judge level.
The record should not be closed after the ALJ decision.
If the record is closed, there should be a good cause
exception to submit new and material evidence.
The claimant's right to request review by the Appeals
Council should be retained. Any changes being considered for the
Appeals Council should be postponed until SSA determines whether, once
in place, the combination of Ae-DIB, the electronic folder and other
changes planned for earlier stages of the process improve the
timeliness and quality of work at the Appeals Council stage.
The independence and quality of medical experts,
consultative examiners, and vocational experts needs to be ensured.
Before addressing these areas, we would like to address our support
for two other features in the Commissioner's proposal: (1) the
Electronic Folder: AeDIB and (2) retaining access to judicial review in
the federal court system.
The Electronic Folder: AeDIB
We support the Commissioner's efforts to implement technological
improvements, including the electronic disability process, AeDIB. These
improvements have great potential for improving the adjudication
process and are critical to the success of any changes. We believe that
it will reduce delay caused by moving and handing-off files, allow for
immediate access by any component of SSA or DDS working on the claim,
eliminate the problems created when paper files become ``lost'' in the
system, and allow adjudicators to organize files to suit their
preference.
An over-arching concern is how claimants and their representatives
will have access to the files. We have been told that CDs will be
burned and provided upon request. To know what is in the record at any
given point during the process, we believe that optimum meaningful
access requires secure online access with a ``read-only'' capacity.
In addition, claimants should not be precluded from presenting
available evidence in any format. We urge SSA to ensure protection of
original documents, which are valuable and sometimes irreplaceable
evidence, by requiring that exact, unalterable electronic copies of all
originals be permanently maintained in the electronic folder.
Retaining current access to judicial review in the federal court system
The Commissioner's proposal retains the current process of judicial
review by the federal courts and does not make any recommendations
regarding creation of a Social Security Court. However, other
stakeholders have recommended creation of such a court.
We support the current system of judicial review and strongly
oppose creation of a Social Security Court. We believe that both
individual claimants and the system as a whole benefit from the federal
courts deciding Social Security cases. Proposals to create either a
Social Security Court to replace the federal district courts or a
Social Security Court of Appeals to provide for consideration of
appeals of all Social Security cases from district courts have been
considered, and rejected, by Congress and SSA over the past twenty
years.
It is important to consider the impact of the Commissioner's
proposals on the workload of the federal courts. For example,
elimination of the Appeals Council could dramatically increase the
number of cases being filed in federal court, as there would be no
opportunity for a claimant to see review of an ALJ's decision within
the agency. While neutral on its face, this step would, in all
likelihood, result in federal district courts urging creation of a new
court to hear these cases, as a way to reduce their overall caseloads.
This is another reason why it is so important to move more slowly in
consideration of the Commissioner's proposal to eliminate the Appeals
Council.
I. Reviewing Official (RO)
In general, we support the proposal to create a ``Reviewing
Official'' (RO) position. The RO has features similar to those employed
in the Senior Attorney Program in the 1990's: the RO would be a federal
employee and would be an attorney; the RO should have a level of
expertise and training similar to the OHA senior staff attorneys; and
the RO should be able to obtain additional evidence, narrow issues in
the claim and, if warranted by the evidence in the record, issue a
fully favorable decision. And, like the rest of the administrative
process, the RO stage would not be viewed as an adversarial process, a
position we support. We do, however, have several concerns about this
stage.
A Separate Appeal To The ALJ Level Should Not Be Required.
To create a more streamlined process, we have supported elimination
of the reconsideration level and adding some type of predecision
contact with the claimant. We are concerned that, as initially
proposed, the RO stage will become a replacement for reconsideration
and, as a result, will not streamline the process. Further, by
requiring a separate appeal to the ALJ level, many claimants will be
discouraged from appealing denials and drop out of the process. We
recommend that one appeal from the initial decision stage should cover
review by both the RO and the ALJ (if a fully favorable decision on the
record cannot be issued by the RO).
The RO Should Issue Only One Type Of Decision In All
Cases That Are Not Fully Favorable To The Claimant, The ``Pre-Hearing
Report.''
We are concerned that issuing more than one type of RO decision
will be confusing to claimants and could discourage them from pursuing
an appeal, if a separate appeal to the ALJ is ultimately required.
While we understand the distinction between the two types of decisions
outlined in the proposal, we recommend that there should be only one
title for all decisions, preferably the more neutral and less
intimidating title, ``pre-hearing report.''
The RO Decision Should Not Be Accorded A Presumption Of
Correctness.
The proposal describes a process where the ALJ must describe in
detail the basis for rejecting the RO's Recommended Disallowance or
respond in detail to the RO's description of evidence needed in the
Pre-Hearing Report. This could build in a bias to deny a claim, because
it will be easier to issue an unfavorable decision, especially if there
are administrative demands to reduce processing times.
To guarantee a claimant's right to a de novo hearing before an ALJ,
the RO's decision should not be entitled to more weight than other
evidence in the folder or be given any presumption of correctness. As a
de novo process and to ensure the ALJ's independence, the ALJ should
not be required to explain why he or she is not following the RO's
report. However, in order to provide accountability and to provide a
record for the next reviewing level, we understand the need for every
adjudicator to explain the rationale for his or her decision.
II. The Right to a Full and Fair Hearing Before an ALJ
A claimant's right to a hearing before an ALJ is central to the
fairness of the adjudication process. This is the right to a full and
fair administrative hearing by an independent decision maker who
provides impartial fact-finding and adjudication. As described above,
in order to guarantee a claimant's right to a de novo hearing before an
ALJ, the RO's decision should not be entitled to more weight than other
evidence in the folder.Since there is a need to avoid a built-in bias
for denial (by making it easier for ALJs to adopt the RO decision than
to issue a different decision), the ALJ should not be required to
respond in more detail than required by the current regulations.
III. The Record Should Not Be Closed After the ALJ Decision
The Claimant Should Retain The Right To Submit New And
Material Evidence After The ALJ Decision.
We strongly support the submission of evidence as early as
possible. However, there are many legitimate reasons why evidence is
not submitted earlier and thus why closing the record is not beneficial
to claimants including: (1) the need to keep the process informal; (2)
changes in the medical condition which forms the basis of the claim;
and (3) the fact that the ability to submit evidence is not always in
the claimant's or representative's control. For these reasons, the
record should not be closed to new and material evidence submitted
after the hearing decision.
Keep the process informal
For decades, Congress, the United States Supreme Court, and SSA
have recognized that the informality of SSA's process is a critical
aspect of the program. Closing the record is inconsistent with
Congress' intent to keep the process informal and with the intent of
the program itself, which is to correctly determine eligibility for
claimants, awarding benefits if a person meets the statutory
requirements.
The value of keeping the process informal should not be
underestimated: it encourages individuals to supply information, often
regarding the most private aspects of their lives. The emphasis on
informality also has kept the process understandable to the layperson,
and not strict in tone or operation. SSA staff should be encouraged to
work with claimants to obtain necessary evidence and better develop the
claim earlier in the process. But, to the extent that important and
relevant evidence becomes available at a later point in the claim, the
claimant should not be foreclosed from submitting it, since this is not
an adversarial process but a ``truth-seeking'' process.
Changes in the medical condition
Claimants' medical conditions may worsen over time and/or diagnoses
may change. Claimants undergo new treatment, are hospitalized, or are
referred to different doctors. Some conditions, such as multiple
sclerosis, autoimmune disorders or certain mental impairments, may take
longer to diagnose definitively. The severity of an impairment and the
limitations it causes may change due to a worsening of the medical
condition, e.g., what is considered a minor cardiac problem may become
far more serious after a heart attack is suffered. It also may take
time to fully understand and document the combined effects of multiple
impairments. Further, some claimants may be unable to articulate
accurately their own impairments and limitations, either because they
are in denial, lack judgment, or simply do not understand their
disability. By their nature, these claims are not static and a finite
set of medical evidence does not exist.
The ability to submit evidence is not always in the
claimant's or representative's control.
Claimants always benefit by submitting evidence as soon as
possible. However, there are many reasons why they are unable to do so
and for which they are not at fault. Closing the record penalizes
claimants for factors beyond their control, including situations where:
(1) DDS examiners fail to obtain necessary and relevant evidence and do
not use forms tailored to specific impairments or the SSA disability
criteria; (2) Neither SSA nor the DDS explains to claimants or
providers what evidence is important, necessary and relevant for
adjudication of the claim; (3) Claimants are unable to obtain records
either due to cost or access restrictions; (4) Reimbursement rates for
providers are inadequate; and (5) Medical providers delay or refuse to
submit evidence.
The current system provides a process to submit new evidence at the
ALJ hearing and, if certain conditions are met, at later appeals levels
(see discussion below). So that claimants are not penalized for events
beyond their control, the opportunity to submit evidence should not be
eliminated in the name of streamlining the system.
Filing a new application is not a viable option. Requiring
claimants to file a new application simply to submit new and material
evidence does not improve the process and may in fact severely
jeopardize, if not permanently foreclose, eligibility for benefits.
By reapplying rather than appealing: (1) benefits could be lost
from the effective date of the first application; (2) in Title II
disability cases, Medicare benefits could be delayed, since eligibility
begins only after the individual has received Title II disability
benefits for 24 months; (3) in Title II disability cases, there is the
risk that the person will lose insured status and not be eligible for
benefits at all when a new application is filed; and (4) if the issue
to be decided in the new claim is the same as in the first, SSA will
find that the doctrine of res judicata bars consideration of the second
application.
In the past, SSA's notices misled claimants regarding the
consequences of reapplying for benefits in lieu of appealing an adverse
decision and Congress responded by addressing this serious problem.
Since legislation enacted in 1990, SSA has been required to include
clear and specific language in its notices describing the possible
adverse effect on eligibility to receive payments by choosing to
reapply in lieu of requesting review.
Apart from these harsh penalties, a claimant should not be required
to file a new application merely to have new evidence considered where
it is relevant to the prior claim. If such a rule were established, SSA
would need to handle more applications, unnecessarily clogging the
front end of the process. Further, there would be more administrative
costs for SSA by creating and then developing a new application. While
AeDIB may make the application procedure more efficient, it also may
make it more reasonable for SSA to take new evidence at later stages of
the process.
Current law already sets limits for submission of new evidence
after the ALJ decision. Under current law, an ALJ hears a disability
claim de novo. Thus, new evidence can be submitted and will be
considered by the ALJ in reaching a decision. However, the ability to
submit new evidence and have it considered becomes more limited at
later levels of appeal. At the Appeals Council level, new evidence will
be considered, but only if it relates to the period before the ALJ
decision and is ``new and material.'' At the federal district court
level, the record is closed and the court will not consider new
evidence. Under the Social Security Act, the court can remand for
additional evidence to be taken by the Commissioner (not by the court),
but only if the new evidence is (1) ``new'' and (2) ``material'' and
(3) there is ``good cause'' for the failure to submit it in the prior
administrative proceedings.
We recommend that these rules be retained. In any event, changes
would require congressional action.
Recognize ``Good Cause'' Exception For The Post-ALJ
Decision Submission Of New And Material Evidence.
While it benefits claimants to submit evidence as soon as possible,
there are many reasons, as discussed earlier, why they are unable to do
so and for which they are not at fault. If SSA's rules are changed to
provide that the record is closed after the ALJ level, there should be
a good cause exception that allows a claimant to submit new and
material evidence after the ALJ decision is issued.
We recommend an approach similar to that which already exists in
SSA's regulations for extension of time to file an appeal if the
claimant can show ``good cause'' for missing the deadline. The
regulations are constructed so that SSA has general discretion in
making the ``good cause'' determination with several criteria that must
be considered: the circumstances that led to missing the deadline;
whether SSA actions were misleading; whether the claimant did not
understand the requirements; and whether the claimant has any physical,
mental or linguistic limitations.
This construct could be adapted to ``good cause'' determinations
for submitting new evidence. It is important that the regulations do
not include an exhaustive list of reasons since each case turns on the
facts presented.
IV. Retain the Claimant's Right to Request Review of Unfavorable ALJ
Decisions
Under the proposal, the Appeals Council would be eliminated.
Centralized quality review staff would review a sample of ALJ
allowances and denials. If the staff disagrees with the ALJ decision,
the claim would be referred to an Oversight Panel for review. The
claimant would have no opportunity to request administrative review of
unfavorable ALJ decisions. The next level of appeal would be to federal
district court.
We recommend retention of a claimant's right to administrative
review of an unfavorable ALJ decision. Because of the important
functions provided by the Appeals Council (discussed below) and because
it is at the end of the administrative appeals process, we also
recommend that any consideration of elimination of the Appeals Council
be postponed while the changes at the earlier levels of the process are
implemented. These changes may result in less pressure on the back end
of the process, making it unnecessary to consider implementing the
proposed change at this level. As described below, the Appeals Council
plays an important role in protecting the rights of claimants and
beneficiaries:
The Appeals Council Can Provide Efficient Review And
Effective Relief To Claimants.
The Appeals Council currently provides relief to over twenty-five
percent of claimants who request review, either through outright
reversal or remand back to the ALJ. The Appeals Council has made
significant improvements in reducing its backlog and processing times.
When it is able to operate properly and in a timely manner, the Appeals
Council provides claimants with effective review of ALJ decisions.
A major basis for remand is not the submission of new evidence, but
rather legal errors committed by the ALJ, including the failure to
consider existing evidence according to SSA regulations and policy, the
failure to apply correct legal standards, and the failure to follow
procedural requirements. By providing relief in these cases, the
Appeals Council allows the Commissioner to rectify errors
administratively, rather than relying on review in the federal courts.
As recognized by the Judicial Conference of the United States, the
Appeals Council can act as an effective screen between the ALJ and
federal court levels and prevent a significant increase in the courts'
caseloads.
In addition, the procedure to request review is relatively simple.
SSA has a one-page form that can be completed and filed in any Social
Security office, sent by mail or faxed. In contrast, the procedure for
filing an appeal to federal district court is much more complicated
and, unless waived, there is a filing fee, which may be cost-
prohibitive for a claimant. Under the current process, there is a large
drop-off in appeals from the Appeals Council to federal court. As a
result, having an administrative mechanism to correct injustices is
essential.
The Ability To Submit New And Material Evidence
Claimants can submit new evidence at the Appeals Council level in
appropriate situations, as described earlier. There is no provision in
the Commissioner's proposal that would allow submission of new evidence
after the ALJ decision; therefore, a procedure for addressing such
circumstances would be lost.
Asking the ALJ to reopen his or her decision to submit new evidence
is problematic from a claimant's perspective. First, the claimant needs
to affirmatively request the reopening which creates another hurdle for
pro se claimants. Second, a claimant cannot appeal the ALJ's decision
to deny the request for reopening (see discussion in next section).
Also, eliminating the right to request review would prevent review
of situations where the ALJ should have obtained the evidence in the
first place.
Review Of Improper ALJ Dismissals And Denials Of
Reopening Requests
Current regulations provide that an ALJ can dismiss a request for a
hearing under certain circumstances, such as: lack of good cause of
both the claimant and representative for failing to appear at the
hearing; lack of good cause for failing to request a hearing within the
60 day time period; and application of res judicata (which precludes
consideration of an issue because of a prior, final decision on that
issue). When an ALJ dismisses a hearing request, a notice of dismissal
must be sent, stating that there is a right to request that the Appeals
Council vacate the dismissal action.
Dismissals generally are not subject to judicial review. However,
by regulation, claimants have the right to request review of ALJ
dismissals by the Appeals Council. A significant number of appeals to
the Appeals Council are for inappropriate dismissals and many of these
claims are remanded. If the right to request review by the Appeals
Council is eliminated, many claimants will essentially be unable to
have these improper decisions reviewed. As a result, they would be
ineligible for benefits, perhaps forever.
Reviewing Allegations Of Unfair ALJ Hearings.
The Appeals Council (AC) reviews allegations that a claimant's
right to a full and fair hearing has been violated. If the allegation
is supported, the AC will either reverse the denial of benefits or
remand the case to a different ALJ for a new hearing.
A recent report by the Government Accountability Office (GAO), SSA
Disability Decision Making: Additional Steps Needed to Ensure Accuracy
and Fairness of Decisions at the Hearing Level, GAO-04-14 (Nov. 2003),
emphasizes the necessity of providing a viable process to review
allegations that an ALJ hearing was unfair. Eliminating the current
review mechanism provided by the AC would be a step backwards.
Review Of Nondisability Issues
The AC reviews cases that do not involve a claim for disability
benefits, such as survivors' eligibility. Also, many disability claims
will have related nondisability claims, e.g., whether the claimant has
engaged in SGA, overpayments due to earnings. The process must continue
to accommodate the need for these reviews.
V. The Proposed Oversight Panel Does Not Provide Fair and Adequate
Review of ALJ Decisions
The Oversight Panel would consist of two ALJs (who will rotate onto
the panels) and one Administrative Appeals Judge (member of the Appeals
Council). In addition to the loss of the important functions of the
Appeals Council, we are concerned that the Oversight Panel (OP), as
proposed, does not provide fair and adequate review of ALJ decisions.
We seriously question whether a process in which ALJs review the
decisions of other ALJs will offer a neutral review of each case. Are
ALJs likely to reverse another ALJ when their roles might be reversed
in the future, with the other ALJ now considering the quality of their
decisions? In addition, we have several concerns about the impact of
the proposed review process on claimants. How will the claimant know
that the decision is final or that it is under review? Will the same
due process safeguards currently provided when the Appeals Council
intends to reopen a claim be afforded by the Oversight Panel?
When would the decision be ``final'' for judicial review purposes?
It seems that a fair amount of confusion will arise to determine
whether a decision is final for the court's purposes. Given the costs
involved in filing a court action (and the additional time without
needed benefits), it would be especially unfair to the claimants to
eliminate their opportunity to seek review within SSA.
How will SSA address cases in which it determines that additional
evidence should have been secured by the ALJ? There is no process for
remand in the proposal. Would the OP secure the additional evidence and
make the final decision? As the OPs will be ad hoc panels, basically
meeting electronically from their offices anywhere in the United
States, it is difficult to see how that process would permit securing
additional evidence.
VI. Maintain The Independence And Ensure The Quality Of Medical
Experts, Consultative Examiners, And Vocational Experts
Changing the role of medical advisors.
Under the Commissioner's proposals, the medical advisors currently
located in the state DDSs would be moved to regional medical expert
units. They would be available to provide advice to DDS staff,
reviewing officials, and administrative law judges. In clarifying the
proposal, SSA has indicated that the same medical advisor would not be
used at the ALJ stage that was used at the DDS or RO level in a case.
We generally support this approach but have several concerns:
Advocates in the field have raised questions and concerns about this
portion of the SSA proposal. These concerns include: By concentrating
medical expertise in a few locations, will the agency's medical advice
be too insular? Is it realistic to expect that SSA will be able to
create the walls between medical experts at the DDS and RO levels and
those at the ALJ level, especially if they are all located in regional
units? Will the interactions among experts in the regional offices make
it less likely that they will feel comfortable disagreeing with or
second-guessing their colleagues? Will it be more difficult to
determine whether a medical advisor has the appropriate expertise? Will
this change create a sealed system of medical expertise that will not
seek the advice of medical experts in the claimants' own communities?
Will it be more difficult to ensure that people with multiple
impairments have their cases reviewed by physicians with the type of
crosscutting expertise needed to evaluate the combined effect of their
impairments?
Improving the quality of consultative examinations
One important theme in the Commissioner's proposal is the emphasis
on securing higher quality and more comprehensive evidence earlier in
the process, preferably at the DDS level. We are very concerned that
steps be taken to improve the quality of the consultative examination
(CE) process. There are far too many stories about inappropriate
referrals, short perfunctory examinations, and examinations conducted
in languages other than the applicant's. This is wasted money for SSA
and unhelpful to low-income individuals who do not have complete
medical records documenting their conditions and who need a high
quality CE report to help establish their eligibility.
Another concern is increased use of volume providers for CEs. SSA
has a long and troubling history of using such examiners. Congress last
devoted its attention to the problems with use of volume provider CEs
in the early 1980s. SSA's goal should be to improve the quality of CEs
used--past experience in these programs shows that using volume
providers is antithetical to securing high quality examinations. In
order to secure quality examinations and reports, SSA may need to
increase its payment for CE examinations. As having quality information
early in the process should improve the decisionmaking and may shorten
the process, purchasing higher quality CE examinations would be a cost-
effective investment.
Another very significant concern is that the regionalization of the
medical advisors will lead to increased use of volume provider CEs,
possibly even to national volume provider CE contracts.
Consideration of vocational evidence earlier in the
administrative process
The Commissioner has indicated her intention to better incorporate
vocational expertise into the DDS stage. A significant number of ALJ
decisions are based on medical-vocational factors. A certain percentage
of these cases could be allowed earlier in the process if the medical-
vocational rules were applied properly. Also, it may result in greater
agreement between DDS and ALJ decisionmaking, as ALJs already generally
consider vocational evidence and expertise in making their decisions.
Conclusion
As organizations representing people with disabilities, we strongly
support efforts to reduce unnecessary delays for claimants and to make
the process more efficient. However, these changes should not affect
the fairness of the process to determine a claimant's entitlement to
benefits. As changes are made to the proposal and as more details
become available, we look forward to working with SSA to ensure that
the new process meets the needs of both the agency and people with
disabilities.
ON BEHALF OF:
American Association of People with Disabilities
American Council of the Blind
American Foundation for the Blind
BazelonCenter for Mental Health Law
Brain Injury Association of America
National Alliance for the Mentally Ill
National Association of Councils on Developmental Disabilities
National Association of Disability Representatives
National Association of Protection and Advocacy Systems
NationalLawCenter on Homelessness & Poverty
National Organization of Social Security Claimants'
Representatives
National Rehabilitation Association
NISH
The Arc of the United States
United Cerebral Palsy
United Spinal Association
Chairman SHAW. Thank you, Ms. Ford. Mr. Sutton?
STATEMENT OF THOMAS D. SUTTON, VICE PRESIDENT, NATIONAL
ORGANIZATION OF SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES,
LANGHORNE, PENNSYLVANIA
Mr. SUTTON. Thank you, Mr. Chairman, for inviting us to
testify. I am Thomas Sutton. I am Vice President of the NOSSCR.
We are over 3,400 attorneys and other advocates representing
claimants for benefits across the United States before both the
agency and the Federal Courts. Our written testimony that has
been submitted for the record conveys our view that the
Commissioner's goals and many of her proposals are worthwhile.
We share her goal of reducing the processing time required to
decide disability claims and will continue to work with her to
accomplish that goal. At the same time, however, we have very
serious concerns about some aspects of her proposal, especially
the plan to eliminate the Appeals Council. I will focus my
brief remarks entirely on this issue.
The elimination of the Appeals Council with nothing to
replace it for claimants seeking review of their cases would be
virtually certain to create an explosion in the number of cases
filed in the District Courts. This is obviously a major concern
to an already over-burdened Federal Judiciary as evidenced by
this week's letter to your Subcommittees from Judge Stamp,
which you have already admitted to the record, Mr. Chairman.
Judge Stamp points out in his letter from the JCUS that in
the last fiscal year about 77,000 claimants requested review by
the Appeals Council. Approximately 2 percent of the claims were
allowed outright and 25 percent were remanded to an ALJ for a
new hearing. In the same fiscal year 17,000 Social Security
cases were filed in the U.S. District Courts. To quote Judge
Stamp, ``This suggests that a substantial number of cases are
being resolved at the Appeals Council level without claimants
having to seek judicial review. Therefore, before a decision is
made on whether to eliminate the Appeals Council, we would hope
that the new claims process would be adequately tested. It may
be that substituting Appeals Council consideration with
judicial review in the Federal Courts would result in more
costs and further delay for many claimants.''
We could not agree more with Judge Stamp from JCUS. I can
personally attest from conversations with judges in the court
in which I practice most often, that is the U.S. District Court
for the Eastern District of Pennsylvania, that the judges are
extremely concerned about the impact that the abolition of the
Appeals Council would have on their dockets. The numbers cited
by Judge Stamp provide a stark illustration of the problem we
have. Using this current reversal and remand rate as a
benchmark of the Appeals Council is overturning 27 percent.
This would mean that of the 77,000 cases filed with the Appeals
Council in the last fiscal year, we would expect over 20,000
would be reversed or remanded because they were not correctly
decided by the ALJs. However, under the Commissioner's
proposal, if because they could no longer request review by the
Appeals Council, all of those claimants filed suit in the
courts, as they should because the Commissioner erroneously
decided their claims, we know that, the Social Security
caseload of the courts would more than double. It is currently
about 17,000 cases. That would add another 20,000 or so cases.
However, the situation is actually worse than that. Under
current regulations the vast majority of claimants who are
denied by the Appeals Council accept the outcome and do not
file suit. However, if claimants know that over a quarter of
the cases denied by ALJs would have been overturned by the
Appeals Council if it still existed, they will obviously be
more inclined to file suit in hopes that theirs are among the
27 percent which the Commissioner would agree have merit. As a
result of that effect, the actual impact of Appeals Council
elimination could easily be a tripling of the number of cases
filed in the courts. This would obviously be an unacceptable
outcome for both the courts and claimants, as the backlogs
which have plagued the SSA would simply be shifted to the
District Court.
The Appeals Council backlog has been a major problem, as
this Committee well knows, for us and our clients. Under the
Commissioner's leadership the backlog has greatly declined over
the last couple of years. At this point the average wait to a
decision is about 8 months, which is still too long for us, but
is certainly a vast improvement. Moreover, we are getting
decisions from the Appeals Council on cases that should be made
by the agency and should not have to go to the courts.
I want to give you just a few examples from my own firm's
case files. Miss M was a young woman with a bright future until
she suffered a catastrophic head injury. She was granted
disability benefits immediately, but was later terminated in a
decision she did not understand how to appeal. After several
appeals, the Appeals Council acted earlier this year to
reinstate her benefits retroactive to the date she was
terminated, based on their rulings protecting claimants who are
mentally unable to pursue their appeal rights. Had the Appeals
Council not acted, Miss M would have been forced to appeal
again to a Federal Court, which almost certainly would have
remanded her case to an ALJ again, resulting in even more delay
in her ability to receive the benefits that never should have
been cut off in the first place.
In another case, Mr. H was denied benefits by an ALJ
despite his documented mental retardation. After the Appeals
Council received new evidence showing that he had also had a
foot amputated due to severe diabetes, it awarded benefits to
Mr. H outright, it didn't remand for a new hearing, just
awarded him. Had the record been closed to new evidence at the
time of the ALJ decision, a new application, which is all Mr. H
could have done, if successful, would have resulted in a loss
of 5 years worth of retroactive benefits for Mr. H who was
disabled all along. These are just a couple of examples, Mr.
Chairman. As these cases illustrate, the Appeals Council has
played an essential role in providing relief to claimants, by
considering new evidence, by obtaining their own medical expert
opinions and resolving cases that did not need to be filed in
the Federal Courts, thus saving time and expense for claimants.
On their behalf, we urge the Commissioner to reconsider her
proposal to abolish the Appeals Council, or at the very least,
to retain the right of claimants to request review of ALJ
decisions by some component of the SSA, the review panels that
she has spoken of, for example, without having to file suit in
Federal Court. Without such appeal rights, the Federal Courts
will be inundated with disability cases which could and should
have been resolved by the agency. Thank you.
[The prepared statement of Mr. Sutton follows:]
Statement of Thomas D. Sutton, Vice President, National Organization of
Social Security Claimants' Representatives, Langhorne, Pennsylvania
Chairman Shaw, Chairman Herger, Ranking Member Matsui, Ranking
Member Cardin, and the Members of the Social Security and Human
Resources Subcommittees, thank you for inviting NOSSCR to testify at
today's hearing on the Commissioner's proposal to improve the
disability claims process. My name is Thomas D. Sutton and I am the
vice-president of the National Organization of Social Security
Claimants' Representatives (NOSSCR).
Founded in 1979, NOSSCR is a professional association of attorneys
and other advocates who represent individuals seeking Social Security
disability or Supplemental Security Income (SSI) benefits. NOSSCR
members represent these individuals with disabilities in legal
proceedings before the Social Security Administration and in federal
court. NOSSCR is a national organization with a current membership of
3,400 members from the private and public sectors and is committed to
the highest quality legal representation for claimants.
I currently am an attorney in a small law firm in the Philadelphia,
PA area. Adding to my experience in legal services programs, I have
represented claimants in Social Security and SSI disability claims for
the past 18 years. While I represent claimants from the initial
application through the Federal court appellate process, the majority
of my cases are hearings before Social Security Administrative Law
Judges and appeals to the Social Security Administration's Appeals
Council. This also is true for most NOSSCR members. In addition, I
represent claimants in federal district court and in the circuit courts
of appeals.
We agree with the Commissioner that reducing the backlog and
processing time must be a high priority and we urge commitment of
resources and personnel to reduce delays and make the process work
better for the public. We strongly support changes to the process so
long as they do not affect the fairness of the process to determine a
claimant's entitlement to benefits.
NOSSCR is a member of the Consortium for Citizens with Disabilities
Social Security Task Force and we endorse the testimony presented today
by Marty Ford on behalf of the Task Force. Specifically, we support
CCD's major recommendations in response to the Commissioner's proposal:
There should not be a separate appeal from the Reviewing
Official to the Administrative Law Judge level.
The record should not be closed after the ALJ decision.
If the record is closed, there should be a good cause
exception to submit new and material evidence.
The claimant's right to request review by the Appeals
Council should be retained.
Any changes being considered for the Appeals Council
should be postponed until SSA determines whether, once in place, the
combination of Ae-DIB, the electronic folder and other changes planned
for earlier stages of the process improve the timeliness and quality of
work at the Appeals Council stage.
The independence and quality of medical experts,
consultative examiners, and vocational experts needs to be ensured.
My testimony today will focus on two provisions of the
Commissioner's proposal: (1) closing the record after the ALJ decision;
and (2) eliminating the Appeals Council. Like CCD, we believe that the
record should remain open and that claimant-initiated review by the
Appeals Council should be retained.
Before addressing these two issues, I would like to state our full
support for several provisions in the Commissioner's proposal.
A de novo hearing before an ALJ is retained.
A claimant's right to file a request for hearing before an
Administrative Law Judge (ALJ), which is central to the fairness of the
adjudication process, will continue under the Commissioner's proposal.
This right affords the claimant with a full and fair administrative
hearing by an independent decision-maker who provides impartial fact-
finding and adjudication, free from any agency coercion or influence.
The ALJ asks questions and takes testimony from the claimant, may
develop evidence when necessary, considers and weighs the medical
evidence, evaluates the vocational factors, all in accordance with the
statute, agency policy including Social Security Rulings and
Acquiescence Rulings, and circuit case law. For claimants, a
fundamental principle of this right is the opportunity to present new
evidence in person to the ALJ and to receive a decision from the ALJ
that is based on all available evidence.
The process will remain nonadversarial and SSA will not
be represented at the ALJ level.
We support the Commissioner's decision to retain a nonadversarial
process. This will keep the disability determination process informal
and focused on the intent of the program itself, which is to correctly
determine eligibility for claimants. Past experience, based on a failed
project in the 1980's, demonstrated that government representation at
the hearing level led to extensive delays and made hearings
inappropriately adversarial, formal, and technical. Based on the
intended goals of better decision-making and reducing delays, the pilot
project was an utter failure. In addition, the financial costs could be
very high. Given the past experience and the high costs, we believe
that the limited dollars available to SSA could be put to better use by
assuring adequate staffing and developing better procedures to obtain
evidence.
Review in the federal court system is retained.
We support the current system of judicial review. Proposals to
create either a Social Security Court to replace the federal district
courts or a Social Security Court of Appeals to provide appeal of all
Social Security cases from district courts have been considered, and
properly rejected, by Congress and SSA over the past twenty years.
We believe that both individual claimants and the system as a whole
benefit from the federal courts deciding Social Security cases. Over
the years, the federal courts have played a critical role in protecting
the rights of claimants. The system is well-served by regular, and not
specialized, federal judges who hear a wide variety of federal cases
and have a broad background against which to measure the reasonableness
of SSA's actions.
Creation of either a single Social Security Court or Social
Security Court of Appeals would limit the access of poor disabled and
elderly persons to judicial review. Under the current system, the
courts are geographically accessible to all individuals and give them
an equal opportunity to be heard by judges of high caliber.
Rather than creating different policies, the courts, and in
particular the circuit courts, have contributed to national uniformity
by helping to establish the standards for termination of disability
benefits, denial of benefits to persons with mental impairments, rules
for the weight to give medical evidence, and evaluation of pain. The
courts have played an important role in determining the final direction
of important national standards, providing a more thorough and
thoughtful consideration of the issues than if a single court had
passed on each. As a result, both Congress and SSA have been able to
rely upon court precedents to produce a reasoned final product.
Finally, the financial and administrative costs of creating these
new courts must be weighed against their questionable effectiveness to
achieve the stated objectives. The new courts, if created, would
involve new expenditures. We believe that with limited resources, the
focus should not be on the end of the appeals process but, rather, on
the front end. Requiring claimants to pursue an appeal to obtain the
justice they are due from the beginning will only add to the cumulative
delay they currently endure.
We share concerns about the growth in the number of civil actions
filed in federal court. We believe that there are ways to lessen the
workload impact on SSA and the courts, and that in many cases,
claimants should not be required to appeal to the court level to obtain
relief. We also believe that the technological improvements discussed
later in my testimony will help to alleviate this problem.
We are ready to work with SSA and the courts to find ways to make
the court process more efficient for all parties involved.
THE RECORD SHOULD REMAIN OPEN FOR NEW EVIDENCE AFTER THE ALJ DECISION
The Commissioner's proposal would close the record to new evidence
after the ALJ decision. In the past, similar proposals to close the
record have been rejected by both SSA and Congress because they are
neither beneficial to claimants nor administratively efficient for the
agency. We recommend retention of the current process for submission of
new evidence.
NOSSCR strongly supports the submission of evidence as early as
possible, since it means that a correct decision can be made at the
earliest point possible. However, there are many legitimate reasons why
evidence is not submitted earlier and thus why closing the record will
not help claimants, including: (1) worsening or clarified diagnosis of
the medical condition which forms the basis of the claim; (2) factors
outside the claimant's control, such as medical provider delay in
sending evidence; and (3) the need to keep the process informal.
Under current law, new evidence can be submitted to an ALJ and it
must be considered in reaching a decision. Contrary to assertions by
some that there is an unlimited ability to submit new evidence through
the court levels, the current regulations and statute are very specific
in limiting that ability at later levels of appeal.
At the Appeals Council level, new evidence will be considered, but
only if it relates to the period before the ALJ decision and is ``new
and material.'' \1\ While the Appeals Council remands about one-fourth
of the appeals filed by claimants, it is important to note that the
reason for most remands is not the submission of new evidence, but
rather legal errors committed by the ALJ, including the failure to
consider existing evidence according to SSA regulations and policy and
the failure to apply the correct legal standards.
---------------------------------------------------------------------------
\1\ 20 C.F.R. Sec. Sec. 404.970(b) and 416.1470(b).
---------------------------------------------------------------------------
At the federal district court level, the record is closed and the
court will not consider new evidence. Under the Social Security Act,
the court is only allowed to remand under specified circumstances.\2\
The Act provides for two types of remands:
---------------------------------------------------------------------------
\2\ 42 U.S.C. Sec. 405(g).
1. Under ``sentence 4'' of 42 U.S.C.Sec. 405(g), the court has
authority to ``affirm, modify, or reverse'' the Commissioner's
decision, with or without remanding the case; and
2. Under ``sentence 6,'' the court can remand (a) for further
action by the Commissioner where ``good cause'' is shown, but only
before the agency files an Answer to the claimant's Complaint; or (b)
at any time, for additional evidence to be taken by the Commissioner
(not by the court), but only if the new evidence is (i) ``new'' and
(ii) ``material'' and (iii) there is ``good cause'' for the failure to
submit it in the prior administrative proceedings.
Because courts hold claimants to the stringent standard in the Act,
remands occur very infrequently under the second part of ``sentence 6''
for consideration of new evidence submitted by the claimant. The vast
majority of court remands are not based on new evidence, but are
ordered under ``sentence 4,'' generally due to legal errors committed
by the ALJ.
Several examples from cases handled by NOSSCR members emphasize the
importance of new evidence obtained after the ALJ decision. These
examples demonstrate that the ability to submit new evidence and have
it considered is beneficial to the claimant and the agency:
The Appeals Council awarded benefits based on new
evidence related to the claimant's multiple sclerosis. The new evidence
consisted of a four page Multiple Sclerosis Questionnaire from the
treating physician and a medical journal article.
The Appeals Council affirmed the allowance in a
subsequent application filed in 2000 and found that the claimant also
met the disability criteria for mental retardation in a prior
application. The Appeals Council considered and admitted new evidence
submitted by the claimant's attorney, and obtained a medical opinion
from a staff consultant who agreed with the finding of disability.
The Appeals Council awarded benefits to a claimant with
bipolar disorder. His condition had deteriorated after receiving the
ALJ denial. He became more depressed and his judgment and insight
lapsed. He rationalized that since the ALJ found him able to work, he
must not be mentally ill or need his medications. He had another
psychotic break that progressed from disposing of a recent inheritance
impulsively to engaging in some dangerous behavior and he eventually
was involuntarily hospitalized.
``Good cause'' exception. If the Commissioner decides to close the
record, there should be a ``good cause'' exception that allows a
claimant to submit new and material evidence after the ALJ decision is
issued. The statutory provision for sentence 6 court remands could be
adopted. The ``good cause'' exception for district court ``sentence
six'' remands for new and material evidence is well-developed. A review
of published court decisions shows a wide variety of reasons why
evidence was not submitted prior to the court level, including:
Medical evidence was not available at the time of the
hearing.
The claimant was unrepresented at the hearing and the ALJ
did not obtain the evidence.
Medical evidence was requested but the medical provider
delayed or refused to submit evidence earlier.
The claimant underwent new treatment, hospitalization, or
evaluation.
The impairment was finally and definitively diagnosed.
The claimant's medical condition deteriorated.
Evidence was thought to be lost and then was found.
The claimant's limited mental capacity prevented him from
being able to determine which evidence was relevant to his claim.
The existence of the evidence was discovered after the
proceedings.
The claimant was unrepresented at the hearing and lacked
the funds to obtain the evidence.
CLAIMANT-INITIATED REVIEW BY THE APPEALS COUNCIL SHOULD BE RETAINED
The Appeals Council, when it is able to operate properly and in a
timely manner, provides claimants with effective review of ALJ
decisions. The Appeals Council currently provides relief to nearly one-
fourth of claimants who request review of ALJ denials, either through
outright reversal or remand back to the ALJ. The Appeals Council has
made significant improvements in reducing processing times and its
backlog. The Commissioner has recently testified that in November 2003,
the average processing time was 252 days, down from 467 days in
November 2001.
In addition, elimination of Appeals Council review could have a
serious negative impact on the federal courts. As long ago as 1994, the
Judicial Conference of the United States opposed elimination of the
claimant's request for review by the Appeals Council prior to seeking
judicial review in the district courts, stating that such a proposal
was ``likely to be inefficient and counter-productive.'' \3\ The
Judicial Conference also recognized the Appeals Council's role as a
screen between the ALJ and federal court levels, noting that
``[c]laimants largely accept the outcome of Appeals Council review.''
Further, the Conference expressed concern that allowing direct appeal
from the ALJ denial to federal district court could result in a
significant increase in the courts' caseloads. As a result, the
Judicial Conference concluded:
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\3\ Comments dated May 26, 1994,of Chief Judge John F. Gerry,
Chairman of the Judicial Conference of the United States, in response
to SSA's April 1, 1994 ``Disability Reengineering Project Proposal.''
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From the perspective of both unsuccessful litigants and the federal
courts, the present system of Appeals Council review as a precondition
to judicial review is sound. The right of judicial review by Article
III courts for all claimants remains intact under the present system.
To the extent that the process of Appeals Council review is thought to
be too time-consuming, despite the high degree of finality that
results, it would be wiser to seek to streamline and expedite the
process of review rather than to bypass it as a precondition to federal
judicial review.
We agree with the conclusion of the Judicial Conference of the
United States. Access to review in the federal courts is the last and
very important component of the hearings and appeals structure. Court
review is not de novo, but rather, is based on the substantial evidence
test. We believe that both individual claimants and the system as a
whole benefit from federal court review. The district courts are not
equipped, given their many other responsibilities, to act as the
initial screen for ALJ denials.
The CCD testimony has outlined a number of reasons why it is
important to retain the important functions of the Appeals Council that
benefit claimants such as: the ability to submit new and material
evidence; review of improper ALJ dismissals and denials of reopening
requests; review of ALJ unfair hearing allegations; and review of
nondisability issues. Cases handled by NOSSCR members demonstrate the
critical role of the Appeals Council in providing fair and effective
administrative review of ALJ decisions:
Substantive review of claim
The Appeals Council awarded benefits to a claimant
with a diagnosis of bipolar disorder with depression. The
treating physician noted that medications were only partially
effective and that the claimant had not been able to cope with
normal stress.
The Appeals Council awarded SSI benefits under
Listing 12.04, relying on their medical consultant's report
that the claimant had bipolar disorder of lifelong duration
with an overlapping diagnosis of Post Traumatic Stress
Disorder. Evidence indicated significant limitations.
The Appeals Council remanded because the ALJ erred in
finding that the claimant had no ``severe'' mental impairment.
The treating source evidence showed that the claimant had post-
traumatic headaches and was incapable of even low stress jobs
due to symptoms of visual disturbances, mood changes and
hallucinations.
The Appeals Council remanded, finding that the
claimant's work as a data entry clerk more than 15 years
earlier was not past relevant work. Further, although the
vocational expert (VE) testified that there were transferable
skills that the claimant had learned from vocationally relevant
work, the VE did not mention the specific skills. Given her
mental residual functional capacity, the claimant would not be
able to perform the jobs identified by the VE.
ALJ bias
The Appeals Council reversed, finding that the ALJ
was biased and demonstrated prejudice by statements made
throughout the hearing, including inappropriate use of words
and phrases regarding the claimant's weight and evidence from
the treating physician.
The Appeals Council reversed an ALJ denial in an SSI
childhood disability claim. The Appeals Council found that the
ALJ was biased, noting that ``certain lines of questioning
directed at the claimant's mother during the hearing were
inappropriate and lacked objectivity.''
The Appeals Council remanded the case to a different
ALJ, finding that the claimant was denied a full and fair
hearing because the ALJ was abusive.
Review of hearing dismissals
The Appeals Council found good cause for the claimant
and her representative's failure to attend the hearing, and
remanded for a new ALJ hearing. The ALJ had dismissed the first
hearing request. The claimant had moved to a different state
before the hearing and had asked to have the claim transferred.
She was unaware the hearing had been dismissed, which was
supported by the notice of hearing being returned by the post
office as ``address unknown.''
The Appeals Council found good cause based on the
dislocation in the claimant's affairs caused by her
hospitalizations, and based on the prompt action by her
attorney in faxing the appeal.
The ALJ erroneously used the date that the request for hearing
arrived at the district office as the date of appeal, and dismissed the
appeal as filed one day late. The ALJ made no attempt to contact the
claimant or her representative about submitting evidence of good cause
or timely filing. The claimant's attorney showed that the request was
timely faxed and that the claimant was psychiatrically hospitalized.
Review of other procedural issues
Post-hearing evidence
The Appeals Council remanded because the ALJ failed
to consider the claimant's request for a supplemental hearing
and failed to rule on the claimant's objections to post-hearing
interrogatories to the VE as required by agency policy.
The Appeals Council remanded because the ALJ
obtained additional medical evidence after the hearing and did
not proffer the evidence to the claimant's representative for
review and comments as required by agency policy.
The Appeals Council remanded because the ALJ failed
to submit material to the claimant or representative for a
post-hearing, pre-decision review and comment according to
agency policy, and also for his inadequate explanation for
rejecting the treating physician's opinion.
Right to appoint legal representative
The Appeals Council remanded after finding that a
minor in state foster care had the right to appoint a legal
representative to pursue an appeal of a disability cessation
and overpayment determination. The ALJ had determined that the
minor had no right to a hearing because she was in the legal
custody of the state and the state had not signed the appeal
form. The Appeals Council found that the minor had properly
appointed a legal representative who properly had filed a
hearing request. Further, good cause had been shown for filing
an untimely appeal (the State/Guardian had not appealed a 1998
disability cessation) because the minor was not notified of the
initial cessation and overpayment determinations. On remand,
the ALJ ruled that the minor's disability continued and the
overpayment from the cessation was eliminated.
Reopening
The Appeals Council remanded, finding that the ALJ
did not provide adequate notice in the Notice of Hearing that,
as required by regulations, he intended to reopen the favorable
portion of a partially favorable DDS decision. An ALJ may
consider new issues, but only after proper notice.
The Appeals Council decision found that a
subsequent application, filed just 2 months after the initial
determination on the prior claim, constituted an implied
request for reopening. A prior final determination may be
reopened for any reason within 12 months of the date of the
notice of the initial determination.
OTHER ISSUES
A. Provide SSA With Adequate Resources To Meet Current And Future Needs
To reduce delays, better develop cases and implement technological
advances, SSA requires adequate staffing and resources. We urge
commitment of sufficient resources and personnel to resolve the waiting
times and make the process work better for the benefit of the public.
To this end, NOSSCR supports removing SSA's administrative budget, like
its program budget, from the discretionary domestic spending caps.
B. Technological Improvements
Commissioner Barnhart has announced major technological initiatives
to improve the disability claims process. NOSSCR generally supports
these initiatives because they have the potential of dramatically
reducing processing times for disability claims.
The Electronic Folder
In several states, SSA has begun to process some disability claims
electronically. Evidence from medical sources, including consultative
examinations, is received either in electronic form or in paper form,
which is then scanned and turned into an electronic document. The
project is enormous in scope and ambitious in both design and
implementation. This initiative has the prospect of significantly
reducing delays by eliminating lost files, reducing the time that files
spend in transit, and preventing misfiled evidence.
We want to thank the Commissioner for her inclusive process to seek
comments about these changes, which will help to ensure that claimants
benefit from these important improvements. Several NOSSCR members
recently were invited to an Office of Hearings and Appeals in
Mississippi, the first state to implement the electronic folder and
eDIB, for an explanation and demonstration. Our members reported back
that they had a very productive meeting and we appreciate this valuable
opportunity to provide input.
Several of our concerns regarding eDIB have been answered through
these meetings. First, advocates can continue to submit evidence that
is on paper. It will then be scanned into the system by SSA. Advocates
also can choose to submit evidence by email.
Second, advocates can continue to request copies of the file. SSA
will ``burn'' a CD and send that to the appointed representative and to
unrepresented claimants as well. Representatives can then print out the
file or view it on their own computers. In addition, at some point in
the future, SSA plans to set up a special, secure website for the use
of appointed representatives. With their assigned identification
numbers, they will be able to go online to see the contents of their
clients' folders.
Video teleconferencing
The Commissioner has announced her plan to expand the use of video
teleconferencing (VTC) for ALJ hearings. The initiative has the
potential to reduce processing times and increase productivity.
Where available, ALJs can conduct hearings without being at the
same location as the claimant and representative or the medical or
vocational experts. In general, we support the use of video
teleconference hearings, so long as the right to a full and fair
hearing is adequately protected and the quality of video teleconference
hearings is assured.
NOSSCR members who have participated in VTC hearings have reported
a mixed experience, depending on the travel benefit for claimants, the
quality of the equipment used, and the hearing room set-up. Also, some
have raised concerns that the ALJ's inability to see the claimant in
person will be disadvantageous.
We are in the process of surveying our members regarding their
participation--or nonparticipation--in VTC hearings. To date, the
surveys we have received indicate that receptivity remains mixed. We
would be glad to share the results and comments with you and the
Commissioner when the survey is final.
Digital recording of hearings
Another important component of technological improvement is digital
recording of ALJ hearings. Currently, hearings are taped on obsolete
tape recorders, which are no longer even manufactured. If copies are
needed, they must be transferred to cassette tapes, which is time-
consuming. Tapes are frequently lost because they are stored separately
from the paper folder. Given the age of the taping equipment, the
quality of tapes is often quite poor, which also results in some
remands from the Appeals Council or the district court. A digitally
recorded hearing would not only be of high audio quality but would be
easy to copy for representatives or transfer to the district court as
part of the administrative record.
CONCLUSION
For people with disabilities, it is critical that the Social
Security Administration address and significantly improve the process
for determining disability and the process for appeals. We strongly
support efforts to reduce unnecessary delays for claimants and to make
the process more efficient, so long as they do not affect the fairness
of the process to determine a claimant's entitlement to benefits.
We are pleased to see Commissioner Barnhart take on this task as a
major goal of her tenure as Commissioner. We support her view that this
is a vitally necessary course of action for the agency and we look
forward to working with the Commissioner in meeting the challenges.
Thank you for this opportunity to testify before the Subcommittees
on issues of critical importance to claimants. I would be glad to
answer any questions that you have.
Chairman SHAW. Thank you, Mr. Sutton. Mr. Hill?
STATEMENT OF JAMES A. HILL, PRESIDENT, NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 224, CLEVELAND HEIGHTS, OHIO
Mr. HILL. Good afternoon. My name is James Hill. I have
been employed as an attorney advisor at the Cleveland OHA for
over 21 years. I am also the President of Chapter 224 of the
NTEU that represents attorney advisors and other staff members
in approximately 110 OHA hearing and regional offices across
the United States. I thank Chairman Shaw and Chairman Herger
for inviting me to testify at this hearing. Testifying today is
a pleasure. I have testified before the Subcommittee on Social
Security on numerous occasions over the past 10 years. On most
of those occasions I criticized the SSA for failing to
effectively deal with the backlog problem at OHA. I do not
enjoy public criticizing the SSA. The major initiatives
formerly advanced by the SSA, the disability process redesign
and hearings process improvement plan were, as I predicted,
failures.
The only effective program at reducing the backlog, the
Senior Attorney Program, which was terminated by HPI, was a
temporary solution that did not address long-term systemic
problems. The salient fact is that for the last 10 years the
Social Security Disability Program has been in crisis. It still
is, but now for the first time a plan has been advanced that
addresses its systemic shortcomings and will finally end the
crisis.
Perhaps the most important factor in successfully dealing
with crisis situations is leadership. I believe that the
leadership provided by the Subcommittee on Social Security,
particularly its Chairman, Clay Shaw, and Ranking Member Robert
Matsui, has provided a stable environment in which wide-ranging
improvements in the process can be instituted. I also note with
pride the role that my congressional representation, Stephanie
Tubbs Jones is playing in improving the disability process. Of
course, the need for dynamic leadership does not end here at
the Hill. The quality of leadership at the SSA will be a major
factor in determining whether the agency can meet the
expectations of the American public. With Commissioner Jo Anne
Barnhart and her executive staff, the SSA finally has the
leaders with the vision, the will, the intelligence and the
courage to solve the long-term disability crisis at the SSA.
The SSA leaders are confronting a disability adjudication
system that is fundamentally flawed. It is clear that wide-
ranging systemic changes are necessary. However, these changes
must address the actual flaws, and not, as in the past, simply
be the result of philosophical leanings and the bureaucratic
inclinations of senior SSA officials. To this end, Commissioner
Barnhart and Deputy Commissioner Martin Gerry, conducted an
objective review of the entire disability system, resulting in
a remarkably accurate picture of its strength and weaknesses. I
believe that for the first time senior SSA officials truly
understand the deficiencies and strengths of the current
system. This insight, combined with the Commissioner's
commitment to create a process which serves the needs of the
public rather than the dictates of the bureaucracy, has led her
to propose a plan for implementing fundamental process changes
that will provide a level of service of which we can all be
proud.
The plan is comprehensive and involves extensive changes
such as the replacement of paper folders with electronic
folders, the formation of a quick decision process to service
those with obvious disabilities, the elimination of
reconsideration determination, the elimination of the Appeals
Council, a completely revamped process-wide quality assurance
system, the creation of three-judge panels to review ALJ
decisions, and the creation of the RO position to provide an
intermediary step between the State agency and the ALJ. These
are fundamental changes that address fundamental flaws in the
current system.
I am convinced that this plan, if implemented, will result
in an efficient, effective and most importantly, a fair
adjudicatory process. The plan advocated by Commissioner
Barnhart will finally end the disability crisis and provide the
American public with a level of service it deserves. Of course,
implementing such a comprehensive plan will require adequate
funding. I urge the Congress to provide the funding necessary
to implement this plan as expeditiously as possible. Thank you.
[The prepared statement of Mr. Hill follows:]
Statement of James A. Hill, President, National Treasury Employees
Union, Chapter 224, Cleveland Heights, Ohio
My name is James Hill. I have worked as an Attorney-Adviser in the
Office of Hearings and Appeals for over 21 years. I am also the
President of Chapter 224 of the National Treasury Employees Union
(NTEU) that represents Attorney-Advisers and other staff members in
approximately 110 OHA Hearing and Regional Offices across the United
States. I thank the Subcommittees for allowing me to testify regarding
Commissioner Barnhart's proposal to reform the disability determination
process.
The Backlog at OHA--A Problem Inherited by Commissioner Barnhart
The current disability backlog problem at OHA is neither recent nor
unique. Nonetheless, a quick review of the history of the number of
cases pending at OHA demonstrates that the backlog problem is not
altogether intractable. The backlog problem in the SSA disability
program began in the early 1990s. Primarily as a result of increased
receipts and SSA inaction, cases pending at OHA hearing offices rose
from approximately 180,000 in 1991 to approximately 550,000 cases
nationwide by mid-1995. However, by October 1999 the number of cases
pending was reduced to 311,000. Since 1999, a number of factors
including the termination of the Senior Attorney Program, increased
receipts, and the implementation of the disastrous Hearings Process
Improvement Plan (HPI) have resulted in a record number of cases
pending. Currently, there are approximately 660,000 cases pending at
OHA hearing offices and processing times in some hearing offices are
significantly in excess of one year.
As discouraging as the increase in cases pending may be, it does
not fully reflect the harmful effect of the inefficient disability
process on the public. Average processing time at OHA was approximately
270 days in 2000; it is currently nearly 400 days. This is an
unconscionably long wait for a disability decision, and it is causing
untold harm to some of the most vulnerable members of society. None
will dispute that the public deserves far better service than SSA is
presently providing.
There is no question that the current disability system is
fundamentally flawed and that wide ranging systemic changes are
necessary. SSA recognized this as early as 1993 and in response
proposed the ``Disability Process Redesign'' (DPR), a plan so complex
and misguided that despite the expenditure of millions of dollars, it
was never implemented. By 1995 the backlog problem at OHA had become so
severe SSA empowered its experienced Attorney Advisors to review cases
and issue fully favorable on-the-record decisions where justified. This
was known as the Senior Attorney Program. During the period from 1995
through 1999 Senior Attorneys produced over 220,000 fully favorable on-
the-record decisions with an average processing time of just over 100
days. It is not a coincidence that during the time the Senior Attorney
Program was in operation the number of cases pending at OHA hearing
offices dropped from 550,000 to 311,000.
The Senior Attorney Program was focused on a specific problem: the
many cases coming to OHA that could be adjudicated favorably to the
claimant without the need for an ALJ hearing. It was a small, low cost
program that addressed a specific operational reality. It did not
address the systemic problems plaguing the disability adjudication
process. Nonetheless, the termination of the Senior Attorney Program
was a bureaucratic blunder.
SSA's next foray into solving the ``disability crisis'' was the
disastrous Hearings Process Improvement Plan. Unfortunately, HPI was
implemented with catastrophic results. SSA Management believed that the
Hearings Process Improvement Plan (HPI) obviated the need for the
Senior Attorney Program. Since the advent of HPI the number of cases
pending in OHA hearing offices has more than doubled. The
implementation of HPI disrupted nearly every aspect of hearing office
functioning with predictable results. A persistent lack of vision and
leadership at SSA resulted in programs such as DPR and HPI that did not
realistically address the root causes of the problems. Not
surprisingly, they failed to improve the disability process, and in
fact, wasted resources while actually harming the adjudicatory process.
The Beginning of a Solution
At the beginning of her term, Commissioner Barnhart was confronted
by a discredited disability process with severe structural and
operational problems at all levels. Commissioner Barnhart and Deputy
Commissioner Martin Gerry conducted a truly objective review of the
entire disability system resulting in a remarkably accurate picture of
its strengths and weaknesses. I believe that for the first time senior
SSA officials truly understand the deficiencies at each level of the
current system. This insight combined with the Commissioner's
commitment to create a process which serves the needs of the public
rather than the dictates of the bureaucracy, has led her to propose a
plan for implementing fundamental process changes that will provide a
level of service of which we all can be proud.
It is apparent that a considerable amount of research and insight
went into the process of formulating this plan. The systemic problems
that have plagued the disability adjudicatory process have been
identified and politically plausible and operationally sound solutions
have been advanced. Specifically, problems including the State
Agencies' inadequate development of the record, their cursory rationale
for unfavorable determinations, and their chronic failure to award many
deserving claimants are all addressed and potentially solved through
the ``Quick Decision Process'', the elimination of the Reconsideration
Determination, and the creation of the Reviewing Official. Additional
problems including long delays at the hearing level, the lack of
adequate development prior to the ALJ hearing, closing the record after
the ALJ decision, the lack of decisional consistency at the various
levels of adjudication, the excessive number of voluntary remands from
the U.S District Courts, and the lack of an effective appellate process
are also addressed and potentially solved.
Other mechanisms which will be employed to improve the adjudication
process are the elimination of regional Disability Quality Bureaus
(DQBs) and the introduction of an integrated quality control process,
the placement at the regional level of medical and vocational experts
who are available to adjudicators at all levels, and the replacement of
the Appeals Council with three judge review panels.
Commissioner Barnhart recognizes that the SSA disability
adjudication system must be a truly integrated system that better
utilizes the expertise of its various components in the most efficient
manner. To view or analyze each component individually without
considering its role in the entire system leads to a distorted view and
introduces needless inefficiencies. The Commissioner's Approach must be
viewed in its totality, recognizing the effects changes at one level
have at the other levels.
Quick Decision--An Excellent Idea
In order to provide benefits to those who are ``obviously
disabled'', the Commissioner has proposed ``The Quick Decision
Process'' It will significantly improve the disability adjudication
process for those claimants with specified medical conditions that
normally result in a finding of disability. A Panel of Medical Experts
that will be located in various regional offices will review those with
verified medical conditions and quickly determine whether these
claimants should receive disability benefits. The Commissioner projects
that approximately 10 % of initial claims can be handled through this
process. The Quick Decision process will perform a valuable service in
identifying those ``obviously'' disabled claimants.
The Role of the State Agency
The disability adjudication process is an integrated process that
should promote the efficient, accurate, and fair adjudication of
disability claims. An efficient disability adjudication process must
recognize that some adjudicatory tasks are better performed by one
component than by others. The Commissioner has proposed changes that
will permit State Agencies to focus on fully developing the record thus
improving the efficiency of the entire process as well as improving
their own decision making.
The State Agencies are far better situated to develop the record
than either the Reviewing Official or the OHA Hearing Office. They have
the facilities and expertise to efficiency acquire medical evidence.
The Commissioner's plan recognizes and utilizes this expertise.
Consequently, primary responsibility for developing the record should
be placed upon the State Agencies. Securing possession of the medical
documents necessary to adjudicate a claim is a difficult and at times a
time-consuming process.
Accurate adjudication of disability claims requires a relatively
complete compilation of the record. Decisional consistency is
significantly enhanced if, at the different levels of adjudication, the
adjudicators are considering essentially the same record. The
Commissioner's plan places emphasis on the full development of the
record at the earliest practicable time--at the State Agency level. The
elimination of the Reconsideration Determination eases the time
constraints under which the State Agencies currently operate, and will
permit more complete development at the initial level. The
Commissioner's Plan includes feedback mechanisms and in extreme cases,
a remand process that will combat the lack of a realistic incentive to
properly develop the record before sending the case to OHA. More
complete development initially will lessen the necessity of expending
considerable time and resources developing the record at OHA and permit
more timely adjudication.
Better development at the State Agency means better decision making
at that level, fewer cases being appealed to OHA, and fewer resources
being expended at the OHA level to develop cases. It also permits both
the State Agency and OHA to make the right decision as quickly as
possible.
The overall efficiency of the adjudication process is enhanced by
the changes suggested by the Commissioner.
The Commissioner's Approach will provide the resources for the
State Agencies to more completely develop a case. The Commissioner has
promised that the appropriations provided to the State Agencies will
not be decreased. The State Agencies will receive 10% fewer cases
because of the Quick Decision Process. This combined with the
elimination of the Reconsideration Determination will permit more
resources to be directed toward more completely developing the record.
The Role of the Reviewing Official (RO)
Perhaps the most innovative initiative contained in the
Commissioner's approach is the creation of the Reviewing Official (RO),
a federal attorney with complete adjudicatory authority placed between
the State Agency and the ALJ. The RO process does more than replace the
current Reconsideration Phase. The Reconsideration Determination has
very little credibility with the public or with ALJs because it is
viewed as a mere rubber stamp of the initial determination. One of the
recommendations from the Association of Administrative Law Judges, and
one that we fully support, is that the RO and the ALJ use the same
standards for adjudication. Past experience with the Senior Attorney
Program and the current ALJ review of unpulled files demonstrates that
the application of those standards results in a fully favorable
decision in approximately 30% of the cases reviewed. The review and
decision making by the RO will result in many disabled claimants being
awarded benefits in as little as 30 days rather than subjecting the
claimant and the Agency to the time and resource consuming activities
associated with conducting a full ALJ hearing.
One of the most important aspects of the RO process is to introduce
an element of credibility that is presently lacking prior to the ALJ
hearing. Currently, the State Agencies provide almost no rationale for
their unfavorable determinations which seriously undermines their
credibility. The Commissioner recognizes that it is essential to the
success of her Approach that the decisions made by the RO be recognized
as independent decisions by an individual who has the discretion to
award or deny benefits as justified by the record. To ensure the
credibility of the RO decision, it must be a well reasoned,
comprehensive and literate explanation of why a claimant is or is not
entitled to disability benefits. To be effective the RO must establish
its credibility with claimants, the State Agencies, Administrative Law
Judges and most importantly with the American public. The importance of
attaining this credibility cannot be overstated.
The Commissioner's Approach demands that the RO issue an accurate,
complete, convincing, and legally defensible decision that explains in
detail the rationale for each finding of fact and conclusion of law.
This necessitates that the RO have extensive legal and disability
program knowledge and experience. This requires the legal expertise of
an attorney to apply the rules, regulations and law to the evidence and
to make and issue a legally defensible decision. It also demands
extensive knowledge and experience in evaluating the functional effects
of medical impairments. Fortunately, SSA already employs personnel with
the education, training, and experience to decide and draft disability
decisions necessary to assure the success of the RO process--OHA
Attorney Advisers. Attorney Advisors have many years of experience in
deciding and/or drafting disability cases, and with minimal training
and expense, can effectively perform the functions of the RO from its
inception.
Another objective of the Commissioner is to facilitate decisional
consistency at all decisional levels. The inconsistency of decision-
making between the State Agencies and the ALJs is undeniable. Through
the Process Unification effort, the agency did take some measures to
attempt to create a higher level of consistency. Despite some level of
success, primarily represented by an increase in payment rates by some
State Agencies, decisional consistency still eludes the Agency.
The introduction of the RO will significantly improve decisional
quality as well as consistency through all the levels of adjudication.
The Commissioner's Approach requires substantial interaction between
the RO and the State Agencies. If the RO decision is different from
that of the State Agency, the RO's written decision will explain to the
State Agency why a different decision was reached. In extreme cases,
the RO will be able to remand cases to the State Agency. This level of
communication, both formal and informal, between the RO and State
Agency will result in improved decision making by both entities and
promote decisional consistency without adversely affecting the
claimants.
The increased level of decisional consistency promoted by the RO
will result in the reality and perception that the proper decision is
being made at the lowest possible level. The RO decision will present
the ALJ and the claimant with a comprehensive explanation of why the
Agency denied the claim. While it imposes no limitation on the ALJ, it
does help focus the issues in controversy leading to a more efficient
hearing process. By providing the claimant with a detailed explanation
of why his/her application was denied, the RO assist the claimant in
marshalling evidence needed to establish disability.
The ALJ Hearing
The Commissioner's approach wisely retains the Administrative Law
Judge hearing process essentially unchanged. Hearing offices will
continue to prepare cases for hearing, Administrative Law Judges will
continue to conduct due process hearings, and the decisional
independence of the ALJ continues to be protected by the APA. However,
concern has been expressed about the relationship between the RO and
the ALJ. The Commissioner has made it clear that the RO decision is not
entitled to any deference on the part of the ALJ. The Commissioner's
Plan recognizes that the reality of the de novo hearing must be
maintained and the freedom of the ALJ to decide cases based upon his/
her evaluation of the evidence and the appropriate law and regulations
must be preserved.
Elimination of the Appeals Council
Another bold initiative proposed by the Commissioner is the
elimination of the Appeals Council and the claimant's right to make an
administrative appeal of the ALJ decision. While on its surface the
elimination of the Appeals Council appears to be detrimental to
claimants, that is not the case. The effect of the elimination of the
Appeals Council must not be viewed in isolation, but in the context of
the entire adjudicatory process. Improvements in the decision making
process at the State Agency level, the introduction of the RO, and the
quality assurance program proposed by the Commissioner render the
administrative review of ALJ decisions unnecessary. We believe that
considering the Commissioner's New Approach in its totality, an
additional administrative appeal of the ALJ decision is unnecessary.
As currently constituted the Appeals Council serves two distinct
purposes. It serves as an appellate body and as a quality assurance
entity, but performs neither with distinction. This is not intended to
disparage the hard-working employees at the Appeals Council, but rather
its basic concept and design. The Commissioner's approach replaces the
Appeals Council with an end-of-line review by a centralized quality
control staff and a potential review by a Commissioner's Oversight
Panel. The Agency, in its effort to improve quality assurance at the
ALJ level of adjudication, should take care not to repeat its mistakes
of the early 1980s when it attempted to interfere with ALJ decisional
independence. In order to avoid the appearance of interference with ALJ
decisional independence, it is essential that ALJs be intimately
involved in any quality assurance program.
There is concern that the lack of a right of administrative appeal
of the decisions of Administrative Law Judges will result in a
substantial increase in the caseload of the District Courts. We agree
that any action that significantly increases the caseload of the
district courts is unacceptable. However, we believe that the
assumption that eliminating the Appeals Council will significantly
increase District Court caseload is unwarranted. While such an
assumption is sustainable if one considers the elimination of the
Appeals Council in isolation, it is far less sustainable when one
considers the whole breadth of the Commissioner's plan. In that light,
we expect that after a period of adjustment, the increased quality of
the adjudication system will actually decrease the number of cases
filed at the District Court. It will certainly significantly decrease
the number of voluntary remands.
Currently, the State Agency unfavorable determinations are given
little credibility due to their nearly complete lack of a comprehensive
explanation to the claimant and his/her representatives why he/she is
not entitled to the disability benefits. Consequently, it is commonly
believed that the first step at which an individual can receive fair
consideration of his/her application is at the ALJ level. Therefore,
appeal to the Appeals Council represents the second time that the
claimant's application receives fair consideration. The lack of
credibility of the determinations made prior to the ALJ decision
virtually mandates an additional (second) level of appeal.
The Commissioner's approach contains an entirely new step, the
review and decision by the Reviewing Official. As noted earlier, the RO
will bring a level of credibility far in excess of that of the current
Reconsideration Determination. The RO will apply the same adjudicatory
standards as the ALJ. For those cases in which the RO cannot issue a
decision favorable to the claimant, the Commissioner's Approach
mandates that the RO prepare a detailed explanation of why the claimant
is ineligible for benefits. It is essential that the explanation of why
the claimant is, or is not, entitled to disability benefits be
thorough, fair and unbiased. The decision of the RO will be the first
step at which the claimant receives a detailed and credible explanation
of why he/she is not entitled to disability benefits. Under the
Commissioner's approach, the ALJ decision will be the second level at
which a claimant receives a detailed decision from an independent
decision maker. In as much as the ALJ process involves a de novo
hearing rather than the appellate review currently performed by the
Appeals Council, dissatisfied claimants actually have more substantial
review and greater opportunity to achieve a favorable result than
provided by the current system. The combination of the RO process and
the ALJ hearing renders an additional administrative appellate step
unnecessary in most circumstances. The claimant always retains the
right to appeal to the District Court.
While appealing unfavorable decisions to the District Court is
appropriate, claimants should not have to file an action in the
District Court to contest a dismissal of a Request for Hearing. We
believe a three judge panel should consider appeals of dismissals. If
the claimant is dissatisfied with the decision of that panel, then
appeal to the District Court would be appropriate.
The Commissioner's Approach introduces major changes to the SSA
disability process, and if properly implemented, it will result in
substantial improvement in disability adjudication. However, it will
require substantial changes in both organization and systems. The
Commissioner has made it clear that inauguration of her new approach is
predicated upon the successful implementation of Ae-DIB. SSA has had
sufficient experience with implementing substantial process changes
without ensuring the necessary system improvements are in place to know
the dangers of premature implementation. Fortunately, Ae-DIB is
progressing as well as can reasonably be expected. While the
Commissioner's prudence in this matter is welcomed, the transition to
her ``New Approach'' should begin as soon as practicable.
Ae-DIB
The years 2004 and 2005 will be notable in SSA history for a number
of reasons, not the least of which are the changes in business
processes driven by Information Technology (IT). This year saw the
introduction of a new case tracking system (CPMS), and the change from
analogue to digital recording of hearing proceedings, the further
expansion of video teleconferencing for conducting hearings, and the
implementation of the electronic folder are all in the immediate
future. Each of these programs, once installed and operating properly
will improve Agency operations. By far the most far reaching change
will be brought about by the electronic folder. The savings, both in
time and money, that can be realized by converting from paper folders
to electronic folders are substantial and will result in improved
service to the public. The electronic folder will significantly
increase the Agency's flexibility in managing its workload and permit
cases to be processed more expeditiously.
These innovations recognize the advances in information technology
and demonstrate SSA's commitment to maximize the efficient use of its
limited resources. NTEU is concerned that the hardware and software
currently in hearings offices is inadequate to the demands that the
electronic folder will place upon them. We are further concerned that
not enough effort has been expended in considering the needs of the end
user in using the electronic folder. The functionality of that
interface will have a significant impact on the functionality of the
entire system.
Conclusion:
Since 1993 SSA has been aware that its disability adjudication
process has been fatally flawed. It was not designed to process the
workload now imposed on it. Previous attempts to improve the process,
the Disability Process Redesign and Hearings Process Improvement Plans
were fundamentally flawed and actually degraded the level of service
provided to the public.
SSA, under the leadership of Commissioner Barnhart and Deputy
Commissioner Gerry, has proposed a new process which if properly
implemented will result in an adjudicatory process that serves the
needs of the claimants and as well as the public at large. Given the
magnitude of the problems facing SSA, only a program that is bold and
innovative will achieve the desired result. Commissioner Barnhart has
delivered such a plan. NTEU recommends that SSA implement the
Commissioner's proposal to reform the disability determination process
as quickly as practicable.
Chairman SHAW. Thank you, Mr. Hill. Ms. Zink?
STATEMENT OF LAURA ZINK, MEMBER, FEDERAL MANAGERS ASSOCIATION,
SOCIAL SECURITY ADMINISTRATION, CHAPTER 275, PHOENIX, ARIZONA
Ms. ZINK. Chairman Shaw and distinguished Members of the
Subcommittees, thank you for this opportunity to voice some of
the concerns managers and supervisors at the Social Security
OHA have with the SSA Commissioner's proposal for reforming the
disability process. I am here as a member of the FMA, which
represents the interests of nearly 200,000 managers,
supervisors and executives serving in the Federal Government.
Within FMA we represent executives, managers and supervisors in
all Social Security Program Service Centers, the Office of
Central Operations and the OHA.
Last year Commissioner Barnhart unveiled her proposal for
restructuring the OHA, and the appeals process. We at the FMA
support the Commissioner's overall mission to support the
disability adjudication process, including her commitment to
retention of the due process hearing and the modernization of
the disability claims process, including migration of the eDIB
folder, otherwise known as eDIB. However, there are some
remaining challenges and concerns that need to be addressed
while the reforms move forward. The most significant concern to
managers and supervisors agency side is a lack of meaningful
performance management system. Our employees have vague and
nearly unenforceable performance standards. Supervisors are not
permitted to document performances, good or bad, in personnel
files. The pass/fail appraisal system is a disservice to our
employees and to the American people. There is no incentive for
excellent performance because every employee gets the same
appraisal. Moreover, our performance award system is
disconnected from performance appraisals of necessity, because
when you look at their appraisals, you cannot tell one employee
from another, and nobody likes it.
In a September 2003 poll, many Federal employees expressed
their dissatisfaction with the current system. Seventy-six
percent of respondents do not believe that the pass/fail system
is an improvement over the more traditional multi-tiered
performance appraisal system. Sixty-eight percent indicated
that the biggest problem with pass/fail was that outstanding
performers get the same rating as low performers. Where is the
incentive to excel in that?
In addition to the need for an appropriate performance
management system, we're still woefully short on meeting
staffing needs of the current workload seen by the OHA. At the
hearing office level we are devoting extensive resource to the
preparation of a more automated system. However, we must
recognize that we are facing a workload crisis today which will
continue into the foreseeable future. Between 2002 and 2012,
SSA expects the disability rolls to grow by 35 percent.
Currently OHA has 600,000 cases pending at the hearing level.
That is more than a year's worth of work. Even though our
production has increased year after year, we are unable to keep
pace with the increasing receipts. We will not fully realize
the benefits of automation for at least 2 to 3 years. In the
meantime we must deal with the paper claims that are with us
now, and that will continue to come to us for the next year or
2. In order to address this shortfall, we need additional
staff.
It is widely recognized that Social Security and the
Federal Civil Service in general is facing a huge retirement
wave. Sixty percent of Federal managers and 50 percent of the
overall Federal workforce will be eligible for retirement in
the next few years, including me. It makes sense for us to hire
employees, both ALJs and support staff now to reduce the
backlog of cases now and over the next several years. Attrition
will bring the staff levels back down over time. The OHA
affects the lives of millions of Americans. With increased
staffing and funding the agency would be able to improve its
service to its customers, the American public.
Last, the Commissioner's proposal to eliminate the Appeals
Council and replace it with decentralized oversight panel is
particularly troubling. The Appeals Council is the only body
that reviews cases from the entire Nation, and is responsible
for the implementation of the Commissioner's policies. In a
disability program that is supposed to be uniform and
consistently administered nationwide, it is extremely valuable
to have one body that can spot trends, regional variations and
potential problems. We are concerned that without the Appeals
Council our National perspective may be lost.
Additionally, the Appeals Council performs a number of
crucial functions. It provides the only recourse and dismissal
cases, and provides protection for unrepresented claimants who
would otherwise have to navigate their way through the Federal
Courts. The council further deals with a number of due process
issues which arise at the hearing level, and handles
allegations of bias and unfairness from claimants. Last, it
plays a vital role in the preparation of cases for court review
and performs nationwide quality assurance. These functions are
essential and best performed by one central body. Thank you for
your time and for allowing me to speak on behalf of the many
dedicated and hardworking OHA managers and supervisors.
[The prepared statement of Ms. Zink follows:]
Statement of Laura Zink, Member, Federal Managers Association, Social
Security Administration Chapter 275, Phoenix, Arizona
Chairman Shaw, Ranking Member Matsui, Chairman Herger, Ranking
Member Cardin and Members of the Subcommittees on Social Security and
Human Resources:
Thank you for allowing us at the Federal Managers Association (FMA)
to testify about the challenges and opportunities facing the
implementation of the Social Security Commissioner's proposal to
improve the disability process as it relates to the Office of Hearings
and Appeals (OHA) in the Social Security Administration (SSA).
FMA represents the interests of the nearly 200,000 managers,
supervisors and executives serving in the Federal government. Within
FMA, we have Conferences divided along agency lines, one of which is
the FMA-Social Security Administration (SSA) Conference representing
executives, managers, and supervisors in all Social Security Program
Service Centers, the Office of Central Operations, and the Office of
Hearings and Appeals.
Last year, Social Security Commissioner Jo Anne Barnhart unveiled
her proposal for restructuring OHA and the appeals process. While FMA
supports certain aspects of the Commissioner's plan, we cannot support
her proposal to eliminate the Appeals Council in favor of the creation
of Oversight Panels. The Appeals Council is the only body that reviews
cases from the entire nation and is responsible for the implementation
of the Commissioner's policies. In a disability program that is
supposed to be uniform and consistently administered nationwide, it is
extremely valuable to have one body which can spot trends, regional
variations and potential problems. We are concerned that, without the
Appeals Council, our national perspective may be lost.
Additionally, the Appeals Council provides the only recourse in
dismissal cases, deals with a number of due process issues which arise
in the hearing process, and handles allegations of bias and unfairness
from claimants. These are important workloads that can best be
performed by one central body. Moreover, we continue to have concerns
about underlying problems in the hearings and appeals process, which,
if not specifically addressed, will continue to inhibit the success of
any reform plan.
Briefly, FMA supports the:
Due Process Hearing;
Recommendation to close the hearing record following the
decision by the Administrative Law Judge (ALJ);
Acceleration of the use of the Electronic Disability
Folder (eDIB), video teleconferencing, digitally recorded hearings, and
a strong management information system;
Need to aggressively address the staffing issue in the
Social Security Administration (SSA);
Agency's efforts to make meaningful improvements to the
OHA process;
Elimination of the reconsideration step only after the
full implementation of the Reviewing Official (RO) position; and,
Establishment of the Regional Expert Medical Units.
The most significant underlying problems we see include:
The lack of a meaningful performance appraisal system;
Severe staffing shortages and imbalances; and,
The cumbersome and lengthy process to hire and assign
ALJs.
While we believe that some of Commissioner Barnhart's proposals may
have a positive impact on OHA processes in the long term, others, such
as the elimination of the Appeals Council, should not be implemented.
It is also important to note that full implementation of other aspects
of the proposal will take time. The plan is predicated on the
successful implementation of eDIB, which even the most optimistic
forecasts indicate will take two to three years. Additional changes
will then be followed by the necessary learning curve for affected
employees. This two to three year process is expected to see initial
disruptions in office operations and a decrease in productivity. The
July 2, 2004 GAO report, Social Security Administration: More Effort
Needed to Assess Consistency of Disability Decisions (GAO-04-656),
noted that SSA should proceed with caution in implementing e-DIB, to
avoid rushing into practices that are not sufficiently tested.
Meanwhile, OHA is facing a growing backlog of pending hearing cases
which needs immediate attention. Over the past two years the hearing
offices have made tremendous strides in improving the disposition rate
and efficiency, and the Appeals Council has significantly reduced its
pending workload. However, because of the aging of the American
population, OHA is receiving more new cases than ever before, but we
have not been given staff increases to keep up with the ever-growing
workload. The rate of receipts is projected to continue to rise. At the
end of Fiscal year 2003, we had 556,369 pending SSA cases at the
hearing level. At the end of August, 2004, we had 625,587; an increase
of more than 69,000 cases. The backlog will not decrease until staffing
levels are increased. OHA desperately needs some short-term relief in
the form of additional employees to deal with the current situation.
In recent years, OHA has reached a number of milestones:
In FY 2002, we produced the largest number of
dispositions in history, 532,106.
In FY 2003, OHA exceeded that performance with 571,928
dispositions.
This represents an increase of almost 40,000 cases.
In FY 2004, OHA piloted and then implemented nationwide
the transition to CPMS, the case-management piece of Ae-Dib.
In FY 2004, despite the challenges of CPMS, OHA has
produced 503,384 cases through August 2004 (final numbers for the FY
are not yet available).
In spite of these accomplishments, we continue to fall behind
because of the increasing receipts. The solution must be increased
human resources as well as increased flexibility for managers to assign
those resources.
Meaningful Performance Measurement
As we previously mentioned in testimony submitted to the
Subcommittee in September 2003 the development of a meaningful
performance management system should be a top priority for SSA and OHA.
The success or failure of any initiatives will be directly related to
management's ability to hold all employees accountable for their work.
Without meaningful performance measurements, we will achieve only
limited success at best.
Many of the problems within the disability process parallel the
deterioration of our performance management system. Our performance
management system began to decay in the late 1980s and has steadily
regressed. Group-based accountability, introduced under HPI, only moved
us further from individual accountability. The current Pass/Fail
appraisal system does not provide incentives for high performance, and
we continue to see the grave consequences of this failed structure.
Each year the Social Security Administration presents its
Government Performance and Results Act Annual Performance Plan. This
plan describes specific levels of performance and outlines the means
and strategies for achieving those objectives. The objectives are
supported by indicators, which are used to measure the agency's success
in achieving the objectives. The performance indicators are translated
into goals that are shared with SSA executives. These goals are then
clearly presented to managers and supervisors as expectations for
performance. At OHA, for example, the indicators are expressed in terms
of dispositions per day per ALJ, processing time, percent of aged
cases, etc. As noted above, SSA holds managers and supervisors
responsible for communicating performance goals to agency employees.
However, when the goals are communicated to the employees, managers are
required to communicate in very generic terms due to the absence of
numeric standards.
Our current performance management system in SSA addresses these
elements, but at an organizational level rather than an individual
level. We certainly have set performance expectations (Planning), but
these are agency goals, not individual goals. As directed by the
system, progress reviews are held (Monitoring), but since there is no
individual measurement, the discussions are generic. Ideally, we would
spend time training (Developing) our employees, but in reality, most of
our offices suffer from significant staffing imbalances and struggle
just to accomplish our most basic missions. We rate (Rating) our
employees on a Pass/Fail appraisal system, which fails to distinguish
individual performance. Finally, our rewards (Rewarding) system is
essentially a ``do-it-yourself'' process. Rewards are currently
determined by regional and national panels, which make their decisions
almost exclusively using written recommendations with little knowledge
of the offices or the nominees. The recommendations--written by the
employees themselves--do not always provide an accurate view of an
employee's workload or their ability.
In a September 2003 poll conducted by FedNews Online, many Federal
employees expressed their displeasure with the current Pass/Fail
appraisal system that is used throughout the government. Seventy-six
percent of the poll's respondents do not believe that the Pass/Fail
system is an improvement from the more traditional five-level
performance appraisal system. Sixty-eight percent of respondents
indicated the biggest problem with the Pass/Fail system was that
outstanding employees were given the same performance rating as
mediocre employees.
Our current performance management system sends the message that
performance does not need to be individualized. Because the standards
are so generic, performance cannot be measured on an individual level.
The labor-management contract requires that data focus on the process,
not the individual. For all intents and purposes, the system is one of
non-accountability. In spite of an employee's best effort, the employee
will simply ``pass'' under current criteria. Award money is distributed
according to a formula based on the number of employees on the payroll.
This distribution is completely devoid of any recognition for
performance, even at the office level. Since we have no individually
measurable standards (numerics) that can be taken into consideration,
overtime/credit hours/flexiplace must be given to anyone interested.
It is absolutely critical that our employees are provided with
clear goals. These goals must be understandable, measurable,
verifiable, equitable, and achievable. An Associated Press article
dated May 27, 2002 describes how the Department of Veterans Affairs has
succeeded in slashing their backlog of pending claims. VA Secretary
Anthony Principi was quoted as saying, ``We decided to really declare
war on that backlog and took some rather bold steps to address it.
We're really getting this backlog under control, and we did it through
sheer focus and discipline, performance measurements and production
goals.'' When employees know what is expected of them, they are better
able to focus their efforts.
There is an old adage that states, ``What gets measured gets
done.'' Implementing an effective performance plan within SSA given the
current culture will be difficult. But if the Agency expects to meet
its objectives it must be done. OPM has prepared A Handbook for
Measuring Employee Performance. This Handbook outlines the guiding
principles for performance measurement as follows: 1) performance
management must be viewed as a valuable tool, not as an evil; 2)
acceptance of the process is essential to its success; 3) we must
measure what is important, not what is easy; 4) the plan must be
flexible enough to allow for changes in goals to keep the process
credible; 5) we must rely on multiple measures; 6) employees must
perceive that performance measurement is important; and, 7) management
must demonstrate that performance is critical to organizational and
individual success. These are the principles, which must guide efforts
to reform the current system.
In October 2003, a Human Resources Management Consortium of forty-
six organizations--most of them Federal agencies--asked the National
Academy of Public Administration to conduct a comprehensive review of
the use of broadband pay in the public and private sectors. The
Academy's Human Resources Management Panel oversaw this important
effort. Over a 19-month period, the Panel worked with a three-member
Academy project team to produce four reports, culminating in
Recommending Performance-Based Federal Pay in May 2004. The final
report's recommendations include:
Transition to the integrated band structure should be
completed within five years. Individual agencies should be allowed to
develop their own schedules based on their human capital plans, budgets
and performance management systems.
Individual agencies should be accountable for planning
and implementing performance management systems that identify
outstanding performers, those who meet performance expectations and
employees who fail to meet expectations. The systems should demonstrate
a clear linkage or ``line of sight'' to the agency's mission and
operating goals.
Each agency should define a new position to provide
support to managers in implementing new performance systems and dealing
with day-to-day pay and performance issues.
Agencies should provide extensive performance training
for managers who are responsible for the implementation and
effectiveness of the new system.
OPM and agencies should both develop linked
communications strategies, which are key to the system's success. These
strategies should delineate the process used to develop policies and
practices.
New system rollouts should be managed as organizational
change.
A strong performance management system will go a long way in
restoring the Social Security Disability Program to the status of a
premier program. Our current leadership is committed to reforming our
performance management system, but we realize it will take several
years to have an effective system in place. Nonetheless, any initiative
implemented prior to having a meaningful performance management system
will have minimal impact.
Staffing Imbalances
In an April 18, 2003 letter sent to A. Jacy Thurmond Jr., Associate
Commissioner of OHA, we outlined a number of issues related to the
staffing of hearing offices. Since the late 1980s, OHA has used the
employee-to-ALJ ratio of 4.5-to-1 to determine staffing. This ratio is
basically applied to all hearing offices regardless of individual
office dynamics. However, since the ratio was established, conditions
have changed at OHA offices. Staffing of OHA offices should reflect the
current needs of those offices.
We at FMA fully recognize that there must be a general formula in
place in order for a central office to be able to compare the regions'
staffing levels. However, a useful staffing formula must be derived by
performing work studies on various positions to determine the amount of
time that is required on average to support an ALJ. Since the current
4.5: 1 ratio was established, OHA's technology capabilities have
advanced significantly and these advancements have dramatically altered
numerous work functions and, correspondingly, the time it takes to
perform the functions. Furthermore, we feel that it is shortsighted to
use such a formula in the strictest sense, regardless of how much
effort was devoted to work-studies. Focusing only on the pre-set,
``ideal'' ratio--without considering other internal or external factors
that impact an office's ability to serve the public--will prevent OHA
from placing itself in the best position to meet coming challenges. The
formula needs to be reviewed and updated as procedures, technologies,
and dynamics change to ensure a true staffing picture. We believe that
our actual staffing needs will be better realized with the following
changes:
Regions should have the flexibility to staff based on
``actual'' needs and not just ``predetermined'' ratios.
Position mix must be considered in any staffing
determination.
Ratios or guidelines have their place, but must be
reviewed and updated as advancements in technology are realized. In
addition, the regions should have the flexibility to surpass the pre-
determined ratio when office dynamics warrant additional staffing.
For purposes of a general guideline ratio, only ``pure''
production employees should be included.
In order to be in a position to handle the anticipated increase in
workload, we must have the flexibility to staff offices according to
their actual needs. Should the agency move forward with its proposal to
eliminate the reconsideration step, the workload of OHA will likely
increase immediately. This is currently the experience in prototype
states which operate with no reconsideration step. Reviewing officers
should be in place and fully trained before the reconsideration step is
eliminated nationwide. Consideration should be given to not restrictin
the RO position to attorneys only. There are many qualified and
knowledgeable paralegal analysts who would increase the pool of
candidates available. If this does not occur, employees new to their
positions will be faced with the inevitable increase in receipts that
will follow the elimination of this step. In our view, this could
create another backlog situation. It is critical that new staff is
already on board, trained, and ready to meet the challenge of this
anticipated spike in workload.
Automation Initiatives
Potentially, these initiatives--including eDIB, video-
teleconferencing, and voice recognition software, will have the
greatest impact on productivity and will significantly alter the way we
do business. Sufficient resources need to be devoted to testing and
implementing e-DIB, as it will ultimately eliminate manual case
preparation, in addition to providing significant savings on mail &
storage costs. As we move closer to this reality, we need to look at
the entire structure of the hearing offices and the positions within.
We cannot start too early on this project considering the impact on the
senior case technicians (SCTs) and the potential to easily distribute
work to where the resources are. The positive impact that eDIB can have
on the SCTs who now spend much of their time preparing the cases for
ALJ review would be substantial. The full implementation of eDIB will
allow SCTs to spend time on other functions that will help to decrease
the backlog OHA currently faces.
We have been very pleased to see the advance of video hearings.
This has been implemented in more locations, and more sites are slated.
This initiative is already saving time and money in providing more
timely hearings for claimants who live a distance from their servicing
hearing office. We applaud the Commissioner's actions in putting this
important initiative on the fast track.
Appeals Council
We are very concerned with the Commissioner's proposal to eliminate
the Appeals Council and create Oversight Panels consisting of two ALJs
and one Administrative Appeals Judge. As part of the plan outlined in
her testimony a year ago, the Commissioner concluded that the Appeals
Council level of the current process should be eliminated because it
``--adds processing time and generally supports the ALJ decision.'' We
disagree with that conclusion, and submit rather that the Appeals
Council level of the process contributes to the achievement of the
Commissioner's stated goals and provides important benefits to
disability claimants.
While it does require some time for the Appeals Council to consider
requests for review, great strides have already been made in more
effectively processing the Appeals Council workload. Pending requests
for review have decreased dramatically and now number approximately
50,000 cases. Average processing time has been reduced significantly,
standing at 251 days at the end of August 2004. At that time, nearly
half the requests for review received by the Council were worked to
completion within 105 days. Technological changes currently being
developed (e.g., digital recording of hearings and the development of
an electronic folder) and policy changes being considered (closing the
administrative record after the hearing) will result in further
significant improvements.
The benefits added to the disability adjudication process by
Appeals Council review make a substantive positive contribution to
achieving the goals stressed by the Commissioner:
Three to four percent of requests for review result in
the issuance of a favorable decision without the necessity of the much
longer appeal process to Federal court. The Council also remands about
24 percent of the request-for-review cases it considers, ultimately
resulting in additional favorable decisions without court action or
unfavorable decisions more likely to withstand court scrutiny on
appeal.
Review by the Appeals Council is the only recourse
available to claimants who have had their requests for hearing
dismissed. The Council grants review in a large percentage of these
cases, providing an avenue for these claimants to receive due process
and a substantive decision.
Many claimants are not represented. The Appeals Council
is the last recourse for those who lack the understanding or resources
to pursue their case in Federal court. For them, the Council provides
an avenue to appeal the Administrative Law Judge's decision in a non-
adversarial setting.
The Council's workload also includes review of favorable
hearing decisions that have not been appealed. Exercise of this
function prevents payment of benefits in cases where an allowance is
not warranted by the law and facts of the case.
The Council also plays a vital role in the preparation of
cases for court review, processing requests for voluntary remand,
preparing court remands, and reviewing final decisions after court
remand. These functions are essential to the efficient processing of
the civil action workload.
In her testimony last year, the Commissioner stressed the need for
disability claims to be better developed and indicated the need for
consistency in disability adjudication. The Appeals Council contributes
to the achievement of both these objectives. By remanding cases, the
Council sets a higher standard for case development. The Council is the
only body that reviews disability cases on a national basis. The
Council has developed principles and guidelines that have insured
consistent actions by Administrative Law Judges throughout the country.
If national consistency is the objective, the Appeals Council is the
logical body to be tasked with continuing oversight of this effort.
Stakeholders in the disability process, including claimants'
representatives and advocacy groups, value the contribution of the
Appeals Council and support retention of the request for review.
Previous studies dealing with the elimination of the request for review
indicated that the workload of the courts would increase dramatically
if the Appeals Council review level were to be abolished. Reports by
the Judicial Conference of the United States have indicated that most
claimants do not seek judicial review after Appeals Council action, and
that Appeals Council review lessens clogging of court dockets. The
Conference viewed the prospect of eliminating Appeals Council review
unfavorably.
The Office of Hearings and Appeals Management Association (FMA
Chapter 275) agrees that the disability adjudication process needs to
foster fully developed case records to support accurate and timely
decisions which are consistent and of high quality. For 64 years the
Appeals Council has contributed to the achievement of these goals by
providing a final level of appeal and review within the Social Security
Administration. Such experience and public service are invaluable. The
Council should continue to be a driving force in improving the
disability adjudication process.
Conclusion
The Office of Hearings and Appeals within the Social Security
Administration affects the lives of millions of Americans with its
disability services. With increased staffing and funding, the Agency
would be able to improve its service to its customers--the American
public. The missions performed by OHA could be completed at an even
higher level of proficiency if a meaningful performance management
system were instituted within the Agency. These changes would allow OHA
to provide to the public the level of service that is both expected and
deserved by taxpayers.
FMA has long served as a sounding board for the Legislative and
Executive branches in an effort to ensure that policy decisions are
made rationally and provide the best value for the American taxpayer,
while recognizing the importance and value of a top-notch civil service
for the future. We at FMA would welcome the opportunity to do the same
for any initiatives that Congress, as well as SSA, would like to
develop that would further enhance the mission of the Office of
Hearings and Appeals.
We want to thank you again, Chairman Shaw, Ranking Member Matsui,
Chairman Herger and Ranking Member Cardin, for providing FMA an
opportunity to present our views and for the hard work and interest of
the members of both Subcommittees on this very important topic.
We look forward to working with Congress, the Commissioner, and
other stakeholders in finding solutions to the challenges facing SSA in
our collective pursuit of sustaining excellence in public service.
Chairman SHAW. Thank you, Ms. Zink. Mr. Bernoski, you are
certainly no stranger to this Committee. Welcome back.
STATEMENT OF RONALD G. BERNOSKI, PRESIDENT, ASSOCIATION OF
ADMINISTRATIVE LAW JUDGES, MILWAUKEE, WISCONSIN
Mr. BERNOSKI. Thank you, Mr. Chairman. Thank you for
inviting us to testify. We commend the Commissioner for her
attempt to reform the Social Security disability process. The
plan is mostly simple and direct with some complex changes in
eDIB. We are committed to working with the Commissioner to
ensure that her program succeeds. The ALJ hearing remains at
the center of the Social Security adjudication system, and we
believe that the ALJ hearing should become more formal and
developed. With appeals going directly to the Federal Court, it
is imperative that we have an improved level of expert
testimony at our hearings, and we will also need highly
qualified decision writers to ensure that our written decisions
pass the scrutiny of the Federal Courts. Also the staffing
problems that we have talked about many times of HPI must be
corrected.
The plan eliminates the Appeals Council, with the appeal
going directly to the Federal Courts. We agree with this change
because the Appeals Council has lost its utility to the
disability process. The plan also calls for three-judge quality
control panels. It is not clear how these panels will function,
but it appears that they will review live cases. A decision of
the panel will become the decision of the Commissioner unless
appealed. We have some concerns with this proposal. There is no
indication that the claimants have a right to appear before
these panels or that the claimants have a right to appeal their
cases to a panel. A claimant has an interest in a favorable
decision, and we suggest that any such quality review be done
on closed files after the appeals time has lapsed. This is to
protect the claimant's right in the case.
We suggest a quality review mechanism be built into the
appeal to the Federal Court from the ALJ. This can be done by
providing for a delay in the perfection of the appeal for a
period such as 60 days. During this period, the case could be
reviewed by the Office of General Counsel to determine if the
agency will defend the case. If the case is not defended, it
would then be returned to the ALJ for further action. The plan
also contains the new position of the RO. This person is an
attorney who reviews the case on appeal from the DDS. The RO
can either allow the claim or prepare a report for further
action by the ALJ. We suggest that this report be a memorandum
for the file and not a decisional document.
It is also important that the RO be provided with
sufficient support staff to fully develop the record. Mr. Daub
spoke about that earlier. The CPMS is a new case tracking
system which has gotten off to a slow start, but we want to
work with the Commissioner to cure its defects. The eDIB is a
larger system that is more complex. We are encouraged by this
concept but have some concern with the size of the project.
Now, eDIB was recently implemented on a limited basis in the
Charlotte, North Carolina Hearing Office, and the information
that we have received indicates that the first hearing went
very well. However, much remains to be done on that system, and
we should look at things such as the utility of the system for
handling large cases with many exhibits, the efficiency of
inputting documents into the system, determining how the
claimants will use this new electronic system for the review of
their files, how the system will be used at remote hearing
sites, the impact of the system on the size of the hearing
room, the number of computers that will be required in the
hearing rooms, the impact of this system on the office users,
and whether there will be a continued need for paper files.
Based on our experience with CPMS we have concern with
ruling out eDIB too quickly, because we believe that there are
going to be problems that can't be anticipated, and that
caution is advisable. However, we are committed to working with
the Commissioner to make this reform a success. We also believe
that the agency must adopt the rules of procedures that were
recently recommended by a Joint Rules Committee. These rules
are needed to implement the Commissioner's reform plan. The
agency should also deal with the use of Social Security numbers
as case identifiers on documents that are electronically
transmitted, as we explained in our written testimony.
Last, on the persistent issue of the OPM's lack of capacity
to efficiently administer the ALJ system, we suggest that there
be a joint hearing between this Subcommittee and the
Subcommittee on Administrative Law in the Committee on the
Judiciary. We recommend the adoption of a Conference of ALJs
similar to the bill that was introduced by Congressman Gekas in
the 106th Congress. Thank you very much.
[The prepared statement of Mr. Bernoski follows:]
Statement of Ronald G. Bernoski, President, Association of
Administrative Law Judges, Milwaukee, Wisconsin
I. INTRODUCTION
Thank you for the opportunity to testify today. My name is Ronald
G. Bernoski. I am an Administrative Law Judge (``ALJ'') who has been
hearing Social Security disability cases at the Office of Hearings and
Appeals (``OHA'') of the Social Security Administration (``SSA'') in
Milwaukee, Wisconsin, for over 20 years.
This statement is presented in my capacity as the President of the
Association of Administrative Law Judges (``AALJ''), which represents
the administrative law judges employed in the SSA OHA and the
Department of Health and Human Services (``DHHS''). One of the stated
purposes of the AALJ is to promote and preserve full due process
hearings in compliance with the Administrative Procedure Act for those
individuals who seek adjudication of program entitlement disputes
within the SSA.
We commend Commissioner Barnhart for her plan to reform the Social
Security disability process. During the past 15 years the agency has
made several attempts to reform the disability process, but
unfortunately each effort has failed. The Commissioner's proposed plan
has the advantage of being simple and direct, yet it includes a
significant challenge on an unprecedented scale. E-Dib, or the
electronic file, is an innovative and bold change in the agency's
collection, transmission, and retrieval of data. Smaller electronic
systems are in existence. The SSA system will include all of the
components of the Social Security Administration as well as the fifty
state agencies involved in initial disability determinations. The
transition from paper files to electronic files will be a difficult,
but not impossible test, for the judges who hear disability cases.
However, it is vital that the Commissioner receive adequate funding to
implement her entire reform plan. If only a portion of E-dib is
completed, we will be left with a struggle of working with the
confusion of two systems or face the dilemma of stepping back from an
achievable technological advancement.
II. THE ADMINISTRATIVE LAW JUDGE HEARING
In September of last year, the Commissioner testified before this
Subcommittee. She stated that claimant advocacy and claimant
representative organizations strongly recommended retaining the de novo
hearing before an administrative law judge. The Commissioner's reform
plan follows these recommendations and the administrative law judge
hearing is retained as the center of the agency's adjudicative process.
We completely agree with this action.
The Administrative Procedure Act was enacted by the Congress in
1946 to ensure fairness in the agency adjudication system in the
Federal government. The Act left the hearing examiners (now
administrative law judges) within the agencies as qualified employees,
but provided them with additional protections to ensure full and fair
hearings for the American public [see Ramspeck et. at. v. Federal Trial
Examiners Conference, 345 U.S. 128 (1953)]. We recommend that the
intent of Congress be fully implemented and that the SSA hearing
process be made more formal. We urge the agency to adopt, by
regulation, rules of practice and procedure for ALJ hearings. Practice
and procedure rules have been proposed by a joint rules committee
established by the Associate Commissioner of the Office of Hearings and
Appeals. Also, with a high percentage of claimants represented by
counsel at our hearings we recommend the establishment of an agency
representative to balance the interests of what has become one-sided
advocacy. If the claimant is not represented at the hearing, the agency
representative would provide assistance to the claimant.
Under the Commissioner's reform plan, the administrative law judge
hearing will be the last agency action for many claimants. We support
the concept of closing the administrative record after the ALJ hearing.
This makes it imperative that the administrative law judge hearing is
full, fair and complete with all relevant evidence included in the
hearing record. The hearing decision must be prepared in a manner that
is legally sufficient and meets all agency and legal standards. ALJs
need highly qualified, professional decision writers to insure that our
decisions pass the scrutiny required of direct appeals to the Federal
district courts.
SSA actions alone will not make the ALJ hearing process more
professional. Congress plays an important role. When creating the
Administrative Procedure Act, the Congress vested considerable
authority in the Civil Service Commission (now the United States Office
of Personnel Management) and gave it the responsibility to regulate the
administrative law judge function in the Federal government. The Office
of Personnel Management (OPM) has the responsibility to maintain a
testing system that qualifies applicants for entry upon a register that
provides new administrative law judges to the agencies. Traditionally,
OPM administered this responsibility through an Office of
Administrative Law Judges. Regrettably, OPM has backed any from its
responsibility for the administrative law judge function in the Federal
government. It recently abolished its Office of Administrative Law
Judges and dispersed the functions of this Office within OPM in an
indefinable manner. For what we believe is the first time in its
history, OPM does not have a test in place for applicants for the
administrative law judge position. A new test has been promised for
years. The ALJ register has been closed to new applicants for over 5
years. The lack of effective management of the administrative law judge
program by OPM has made it extremely difficult for agencies, including
SSA, to hire new judges. This problem must be addressed to allow the
Social Security Administration and other agencies to hire the new
administrative law judges needed to maintain the various programs in
the Federal government.
Rep. George Gekas (R-PA) attempted to address this problem in the
106th Congress by introducing the Administrative Law Judge Conference
of the United States Act (H.R. 5177). This legislation would have moved
the functions of the Office of Administrative Law Judges from OPM and
placed them in an Administrative Law Judge Conference. The Conference
was to be headed by a Chief Judge who reported annually to both the
Congress and the President. The Chief Judge was to be responsible for
regulating the Federal administrative law judge program and for
promulgating a code of professional conduct for Federal administrative
law judges modeled after the America Bar Association model code for
administrative law judges. The administrative law judges remained as
qualified employees of the agencies and the existing authority of the
agencies and judges was not changed in any manner. The concept was
patterned after the Judicial Conference of the United States and it
provided a needed organization and structure for the Federal
administrative law judge system. We ask that legislation of this type
be supported by each member of this joint Subcommittee.
III. APPELLATE REVIEW
The Commissioner's reform plan eliminates the Appeals Council. We
agree with this change. There have been many studies and comments on
the utility of the Appeals Council to the Social Security disability
process. In a prior report, the Administrative Conference of the United
States recommended that the Appeals Council be either improved or
abolished. The main weakness of the Appeals Council is that it has not
developed a true appellate function in the Social Security disability
process. Its decisions do not have any precedent and its authority has
not been developed. As such, it merely serves as a ``pass-through''
area for the claimants on their way to the Federal courts and it adds
no value to the process.
The reform plan provides for a centralized quality control staff
that would review administrative law judge decisions. If the quality
control review disagrees with an administrative law judge decision, it
will be referred to an oversight panel for review. This panel consists
of two administrative law judges and one administrative appeals judge.
The decision of the panel becomes the final decision of the
Commissioner, unless it is appealed to the Federal court. We have
considerable concern with this change. The claimant does not have any
right of appeal to the panel, and it is not clear whether the claimant
has any right to representation before the panel. If the claimant has
received a favorable decision from the administrative law judge, he/she
has a clear interest to protect in the decision before the panel. We
recommend that any quality control review conducted by the agency be
performed on closed files where the appeals time has lapsed. This will
eliminate the problem of interfering with a ``live'' case where the
claimant has an interest to protect.
The reform plan provides that if the administrative law judge
decision is not reviewed by the panel it will become the final decision
of the Commissioner, unless it is appealed to the Federal court. As is
currently the case, the claimant will continue to have a right of
appeal to the Federal court under existing law. We agree that the
Federal districts courts should continue to have jurisdiction of Social
Security disability cases. To act as a filter for appealed cases, we
recommend that SSA consider a procedure to return certain cases to the
administrative law judges before jurisdiction is perfected in the
Federal courts. This could be accomplished by establishing a time
period (e.g. 60 days) before the appeal to Federal court is perfected.
During this time period, the attorneys for the agency's Office of
General Counsel could review the cases and decide which cases, if any,
the agency will not defend in court. The cases that the agency decides
not to defend in court would be returned to the administrative law
judge for further action. Jurisdiction in the Federal courts gives a
safeguard to the claimant by providing a forum that is outside the
agency and allows for independent judicial review of the case. In the
1980's the Federal courts proved the value of this review by protecting
the claimants from widespread agency abuse.
IV. REVIEWING OFFICIAL
The plan creates a new position in the Social Security disability
system. This position is the SSA reviewing official (RO) and it a
Federal position. If the claimant files a request for review of a DDS
determination, the claim would be reviewed by the RO. This person will
be an attorney, who will be authorized to review the case and to either
issue an allowance decision in the case or concur with the DDS denial
of the claim. This is a review of the file, and the claimant will not
appear before the RO. If the claim is not allowed, the RO will prepare
a written report on the recommended disallowance which discusses the
evidence in the case. We believe that this report should not be an
agency decisional document and it should instead be a memorandum for
the file to assist the administrative law judge. If the report is a
decisional document, the claimant will have a right to state his/her
case to the RO in writing prior to the issuance of the report. This
will add time to the process and require an appeal from the RO to the
administrative law judge hearing.
V. CENTRALIZED MEDICAL PANELS
The reform plan provides for centralized medical panels that would
be available to disability decision makers at all levels. These units
would be organized around clinical specialties, such as,
musculoskeletal, neurological, cardiac and psychiatric.We are
encouraged by this proposal, because we believe that any method
employed to improve the quality of the medical evidence at the
administrative law judge hearing is beneficial. The reform plan
provides for a ``quick decision'' process which could use this expert
medical resource. We support the quick decision process so that pay
cases can be identified as early in the process as is possible. We
suggest that the medical panels for the State DDS disability reviews
and the administrative law judge hearings be separate to provide a
``fresh look'' of the case at each level of the administrative review.
However, if a needed medical specialist is present on only one of the
panels, this expert should be available to all adjudicators. Heretofore
hard to obtain medical testimony could be obtained at our hearings by
use of the video conference system that the agency is acquiring. This
new technology allows administrative law judges access to needed
medical experts not otherwise available. Video testimony also gives the
claimant a better opportunity to cross examine the witness as well as
providing for a more efficient use of the expert's time.
VI. CPMS
Conversion to an electronic work environment needs to be well
planned. The initial version of the Case Processing and Management
System software did not live up to expectations. That version of CPMS
made the change to this new system more difficult than it needed to be.
The General Accounting Office forecast this result in a briefing and
report submitted to the Subcommittee earlier this year.\1\ GAO
presented four main points of concern. I will address only one: the
failure to adequately consult with actual end-users at the field
offices of the Office of Hearings and Appeals at each step of the
software design process. The feedback we receive from the field is that
no judge, staff member or field manager with knowledge of our process
would plan CPMS the way it was designed. I will give you just two
examples since they are symptomatic of many other problems with CPMS
which actually impede the ability of an OHA to get the work done. The
solutions we propose will cure these and many similar problems.
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\1\ U.S. General Accounting Office, Electronic Disability Claims
Processing: Social Security Administration Needs to Address Risks
Associated with Its Accelerated Systems Development Strategy, GAO-04-
466 (Washington, D.C.: March 26, 2004).
---------------------------------------------------------------------------
The first example is: A clerk assigned to a judge cannot always run
a listing of his or her assigned judge's cases.
This occurs because the Systems division at SSA, for reasons not
entirely clear but seemingly in the interests of confidentiality of
data, have limited access by individuals to only those cases actually
assigned to those individuals.\2\ This excessive internal secrecy and
limited access to data impedes getting the work done. We all need to be
able to work together to accomplish our mission. We recommend that CPMS
be transparent at the local office level. What we urge is that every
individual at a local office have access to the status of all cases
within an office. CPMS' limited access policy blocked rapid responses
when action was required and an employee was available to take such
action except for an internal block. Such compartmentalization can also
be destructive to local office morale. ALJs and members of our support
staff are acutely aware of the long waits claimants endure before a
disability hearing is held. When staff fields a phone call or mail
inquiry for which immediate action can save a claimant days or weeks of
wait but can't act because they are blocked by artificial barriers it
is extremely frustrating to them.
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\2\ Managers are an exception to this policy.
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The second example is: CPMS is unforgiving.
It is imperative that even simple mistakes are not made in CPMS.
Once a mistake is entered into the system there is no easy way to
correct it. If a mistake is made an employee must delete all the work
to that point and start that step from the beginning. For example, a
judge in Miami decided to make his own entries in CPMS to assist the
office in closing out as many cases as possible. He found in favor of a
claimant and established an onset date in January. When he entered the
date, he mistakenly typed 11 which is November, rather than 01 for
January. He then saved and closed the case. A staff member at the
office discovered the mistake before the case was mailed. However, he
discovered that no one in the entire agency could correct his clerical
error. An entirely new file had to be recreated with all the data
having to be re-entered into this new file to correct this simple
error.
When the Group Supervisor in Miami complained about this problem to
a Systems person, he was told the solution was simple: ``Don't make
mistakes.'' The agency must find a user friendly way to correct
mistakes in CPMS. We urge greater emphasis on ongoing consultation with
the employees in the field who actually use the new electronic process.
This coordination and receipt of feedback from the field will become
even more critical when we transition to work with electronic files.
VII. E-DIB
Accelerated Electronic Disability Claims Processing (AeDib) is the
foundation upon which the Commissioner intends to construct her Reform
Plan. We know that a change of the magnitude contemplated by E-dib will
not be perfectly smooth. As we have learned with the CPMS phase it is
critical that there be flexibility within the agency to address
problems that are highlighted by experiences in the field. The AALJ is
encouraged by the efforts of SSA at its highest levels to consult with
us on this monumental transformation. However, much of the nitty-gritty
of implementation occurs at lower echelons of the agency as well as
within hearings and appeals' management. It is at these levels that we
see a need for more open communication and a new found sense of
cooperation. The vision and scope of the Commissioner's plan requires
more flexible and invigorating management to open effective lines of
cooperation with all levels of the agency.
We believe the Electronic Disability Collect System of E-dib has
great potential to assist judges in rendering decisions and to speed up
the overall process. The EDCS contains structured data that unlike the
data in the Electronic Folder may be searched and manipulated easily by
the judge. We recommended early that the agency not simply convert
standard government forms to electronic format but that they take the
time to revalidate the data collected in the old hardcopy forms to make
sure the data is relevant today and actually helps a judge render a
decision. We continue to urge the agency to fully act on this
recommendation.
The Document Management Architecture part of E-dib has not been
piloted for a sufficient time to comment on its utility. However, the
initial reports are promising. It is my understanding the first hearing
involving a pure Electronic Folder has just taken place at the
Charlotte, North Carolina OHA. However, based on our experience with
CPMS, we have concerns about the rapidity of the roll-out of E-dib.
VIII. Discontinue use of SSN as a Case Identifier
Although this does not fit perfectly under any AeDib category, this
issue should be addressed by the agency. First, Chairman Shaw we
applaud you and your Subcommittee for your leadership role in
introducing the Social Security Number Privacy and Identity Theft
Prevention Act of 2003 (H.R, 2937) and holding hearings on this most
important issue to all of us. At the hearing Mr. Patrick P. O'Carroll,
the Acting Inspector General of the Social Security Administration,
declared in his prepared statement:
Perhaps the most important step we can take in preventing SSN
misuse is to limit the SSN's easy availability. We believe legislation
designed to protect the SSN must strictly limit the number's
availability on public documents. As long as criminals can walk into
the records room of a courthouse or local government building and walk
out with names and SSNs culled from public records, it will be
extremely difficult to reverse the trend.\3\
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\3\ Statement of Patrick P. O'Carroll, Acting Inspector General,
Social Security Administration Testimony Before the Subcommittee on
Social Security of the House Committee on Ways and Means (June 15,
2004).
---------------------------------------------------------------------------
We have recommended to the agency during the AeDib process that it
discontinue the use of SSNs as a disability decision and case
identifier. It could be easily accomplished \4\ Until this is done we
might have an Electronic Folder but we cannot even e-mail the Exhibit
List to an attorney because the case is identified by the claimant's
SSN and the agency rightfully has a prohibition on transmitting SSNs
over the internet. We will instead need to print out the list and send
it by regular mail. This is inefficient.
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\4\ Under HOTS cases could be searched using the first four letters
of the claimant's last name and the last four digits of their SSN. The
agency could easily use the entire last name of the claimant and the
last four digits of the SSN to identify a claimant's disability claim
file and decision.
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IX. THE NEED FOR PROCEDURAL RULES
In 1969 SSA ALJs issued about 20 to 30,000 dispositons. This year
we will conduct over 500,000 hearings. In 1969 few claimants were
represented. Presently 88% of claimants are represented at the hearing
level. The old concept of an informal hearing made sense for un-
represented claimants. But today very skilled and assertive
representatives effectively advocate on behalf of their clients. We
work in a different judicial environment. Yet judges conduct hearings
today in exactly the same manner they did thirty years ago; without
procedural rules. As one example where rules would greatly assist our
judges, the agency does not have a rule which requires attorneys to
submit evidence in a timely manner before a hearing. The orderly
submission of evidence is a basic requirement of any other adjudication
system. Presently, attorneys can and do show up at hearings with 100 or
more pages of new evidence. An ALJ is then faced with two distasteful
choices. The judge can either conduct a hearing without time to
adequately review new evidence or add further delay to the process by
postponing the hearing. It is a terribly inefficient system with the
American public paying for this inefficiency.
Adoption of procedural rules is needed to make new technologies
more efficient. The video hearing system provides another example. A
judge reports waiting while the attorney faxed seventy-five pages of
new evidence to him which needed to be read before the hearing could
proceed. We need updated procedural rules to provide the disability
hearing process with an efficient system which can take full advantage
of our new technology.
Thank you.
Chairman SHAW. Thank you. Mr. Brady?
Mr. BRADY. Thank you, Mr. Chairman. In the written
testimony, because it shortens the time in the verbal
discussion today, several of you cited what you would include
in the good faith exception to closing the file after the ALJ
case. Can each of you talk about sort of some key points that
ought to be part of that exception?
Mr. SUTTON. Yes. Congressman Brady, if I could address
that. As a practitioner who has been doing these cases for
years, I will give you some examples of what that would look
like. For example, we had a client who appeared before an ALJ
with orthopedic injuries that caused pain that was so severe
that her doctors actually considered amputating her leg to stop
it, but she had no attorney when she appeared before the judge,
and she did not know to go and get that evidence. It wasn't
obtained until after the judge had denied her case. It was
appealed to the Appeals Council by my firm. We obtained that
evidence, submitted it to the Appeals Council. The Appeals
Council remanded the case to the judge and said, ``Look at this
evidence,'' at which point of course the judge granted her
benefits. That is a perfect example of the kind of good cause
for new evidence coming in, unrepresented people who don't
understand what their burden is.
There are also cases where diagnoses are unclear, people's
symptoms are very well documented in the medical records, but
they do not know exactly what is causing them, and then perhaps
3 months or 6 months after a judge denies a case, you find out,
well, it was MS, or it was Amyotrophic Lateral Sclerosis, or it
was some terrible disease. At the time the judge had the case
he or she saw it as, these are unexplained complaints of pain
and there is no objective documentation to explain, and so it
is denied.
If you cut off the record and don't allow that opportunity
to bring the evidence before the agency, it doesn't work. You
really can't bring it to court, by the way. There is a
statutory provision for evidence to be brought to the court if
a case gets that far, but it is an extremely stringent standard
there that usually is not met. The courts, of course, don't
have doctors on their staffs to evaluate that new evidence. The
Appeals Council does, and that is why it is so important, I
think, to have that safety valve for new evidence that can come
in after the point that the ALJ decides the case.
Mr. BRADY. Thank you. Ms. Ford?
Ms. FORD. I would just echo what Tom has just explained. I
think Mr. Becerra used an example earlier this afternoon about
a person who has MS and the documentation of that does not come
in until after the ALJ has made a decision. In that situation,
you would not want to force someone to start over completely,
and there could be some serious implications in whether or not
they could get benefits if they were not allowed to continue
this case, but instead, had to start over with a new claim.
Mr. BRADY. In that case you stressed documentation. In a
case like that, wouldn't the issue of MS or the illness being
raised to the ALJ, wouldn't you as an ALJ want to obtain that
document before you rendered a decision? There is a difference
between an absence of any knowledge of an illness and the
documentation that justifies it.
Mr. SUTTON. Sometimes, Congressman, in my experience,
judges are conscientious and they do make an effort to try to
get that evidence for a claimant, let us say, particularly one
who doesn't have counsel at the hearing. There comes a point
where the judge can become frustrated with the absence of
certain tests, that kind of documentation. You know, if the
treating physicians aren't referring that claimant for the
proper tests, MS is a perfect example. There are multiple tests
that have to be done. It is a triangulation effect that the
clinicians have to go through to actually diagnose the disease.
Unfortunately, with many claimants having little or in some
cases no health insurance, getting referrals to have that kind
of expensive testing is easier said than done. The ALJ could
order a consultative exam, but those usually aren't going to
pay for or do the kind of intensive testing or specialty
referral that is really needed.
So, those things happen. They happen sometimes not when
they should and not as early as they should, and we have to
have a process that at least allows claimants, who are in a
position where they cannot just wave the magic wand and get the
referral that they need, to be able to bring that evidence to
the agency when they get it, show that they had good cause for
not having it before, and that may allow them, as Marty said,
to get benefits when they otherwise would be cut off. We have
cutoff dates in this program. There are dates when insurance
expires, when you have been out of work so long. Sometimes it
is no answer to a claimant to just say, ``File a new
application.'' They can never get benefits unless a decision is
reconsidered and overturned, perhaps in light of new evidence.
Mr. BRADY. Any other panel members want to comment?
Judge BERNOSKI. Under the Commissioner's plan, if the case
goes directly from the ALJ to the Federal Court, the current
Federal statute for that appeal from the agency to the Federal
Court has a case closing aspect to it. So, as the Commissioner
indicated during her testimony, the case is going to close as a
matter of existing law. To answer your question directly as to
what the new cause standard should be, we suggest there should
probably be two tests, the first one would relate to evidence
that is not in existence at the time of the hearing, that would
be reason for allowing that evidence be received to the record
subsequent to the hearing; or second, if the claimant could
offer a good explanation why evidence that was in existence at
the time of the hearing was not offered at the hearing. It
would be a two-prong test.
Mr. BRADY. Thank you. I appreciate it. Mr. Chairman, I am
just sort of at a point on this, it seems like our whole system
is sort of a series of safety nets to catch the claimants that
fall through the net in front of them in each step of the way.
I think one thing the Commissioner is trying to do that I
support is to tighten and strengthen those nets early on in the
process, so we find and help as many claimants so that we don't
build in a series of five or six different steps, but try in
fact to catch the claimants who need the help as early on I the
process. I think as an idea and as an approach that is a good
one to take. Thank you, Mr. Chairman.
Chairman SHAW. Thank you, Mr. Brady. Mr. Sutton, you have
made the argument as to the excessive litigation that would
result if the Appeals Council was eliminated. Could I ask the
other panel members to comment on that? Ms. Ford, you have an
opinion on that? I would like to go to Judge Bernoski.
Ms. FORD. Thank you. I think that is an important point,
that the Federal Courts could be swamped with cases that really
don't belong there. I also fear that claimants won't be able to
take cases forward. Some won't have the wherewithal to know how
to get through the process. Making an appeal--or filing a case
in the Federal Courts--is far more complicated and more costly
to an individual, and if they haven't had legal representation
up until that point, it may be beyond their ability to even
consider it. So, you would have a claimant who possibly should
have been entitled to benefits who doesn't get them.
Chairman SHAW. Judge?
Mr. BERNOSKI. Mr. Chairman, our suggestion does have that
additional feature, it allows the agency to have the quality
review system built into the appeals process. We suggest that
there be a period of time between the time that the appeal is
filed and the perfection of the appeal. I said 60 days, but it
could be for any period that is determined, during which the
agency can have another look at the case. The Office of General
Counsel would look at the case and decide whether or not this
is a case that should be defended. If it is, it would go on to
the court. If not, it would be returned back to the ALJ for
further action. This, I think, would keep a huge number of
cases from moving to the Federal Courts.
Now, with relationship to the claimants having the
knowledge to bring the case to the Federal Court, most of the
claimants are now represented at the ALJ hearing. I think Mr.
Daub indicated 80 percent or 85 percent of the claimants are
represented, so that knowledge currently exists in the system.
They have an attorney, and these attorneys certainly know how
to bring the cases to the Federal Courts. Also the Federal
Courts provide a ``pauper waiver'' of the filing fee where the
claimants, upon filing an affidavit, can file the case in the
Federal Court at no charge.
In the previous testimony there seemed to be some concern
about the claimants and the complexity of the Federal Courts,
and there seemed to be a belief that the case before the
Federal Court is a trial. It is not. The case goes to Federal
Court on certiorari, so it is simply at that point an argument
before the magistrate or the Federal judge based on the record.
It is not a complex hearing. The hearing is before the ALJ, and
that is why we recommend it be a more formal and complete
hearing, so that the Federal Courts, if they do get the case,
have a better record than is now being sent to them.
Chairman SHAW. Mr. Sutton?
Mr. SUTTON. If I could just briefly respond. I have great
respect for Judge Bernoski. The problem with this proposal, as
I see it, that the Commissioner has made to replace the Appeals
Council with these review panels is twofold. First, as to that,
claimants have no ability to request review. It is purely a
matter of whether the Commissioner says, ``We are going to
review all claims'' or a sample. It is totally at the
Commissioner's initiative. Claimants have no way to obtain
review, to know whether their case is being reviewed or
anything of the kind, and that is the fundamental problem with
it as an idea for replacement of the Appeals Council.
Judge Bernoski's testimony has noted that problem. He has
suggested and his association suggested that the Office of
General Counsel review all these cases to somehow decide
whether they really belonged in Federal Court or not. Is that
all 200,000 ALJ denials a year? Is it 3 times the 17,000
filings you now have in District Court? You are going to have
those cases filed because people who are not satisfied with the
ALJ denial, believe there is really a wrong and a legal error
there and they have no place else to go. The Office of General
Counsel, I can tell you because I litigate against them every
week, has a hard enough time defending the 15,000 to 17,000
filings a year now; to tell them that they are going to
essentially replace the Appeals Council to review the merits of
these ALJ decisions I believe is completely untenable.
Chairman SHAW. Thank you. Mr. Hill, in your testimony you
talk about the lack of consistency in decisionmaking and note
that the, and I am quoting you, ``inconsistency of
decisionmaking between the State agencies and the ALJs is
undeniable.'' That is the end of your quote. Given that it will
take some time to implement aspects of the Commissioner's plan.
Do you have any suggestions for improving the consistency of
decisions right away?
Mr. HILL. Sir, that is a very difficult proposition,
because I think when you hear, and we heard it earlier, the
State agencies believe they are right 90 percent of the time,
yet ALJs are overturning 61 percent of the cases that come to
them. Overturning is even a wrong word. The cases can be very
fundamentally different when an ALJ finally makes a decision
because it is a year or 2 years older. One easy way is
obviously to truncate the process so we do not have such a huge
period of time between them. The other one I think is probably
more fundamental, and it comes down to the end, two factors,
one, the quality assurance program. At the State agency level,
because of statutory requirements, a preponderance of payments
are reviewed. At the ALJ level, because of a system of appeals,
very few people who are awarded benefits appeal the award. It
is primarily review of denials, and there are built in factors.
It is easier at the State agency to deny a case, to get it by
quality assurance. It is easier at the ALJ level to pay a case
if there is some problem with it.
I think that is a very practical problem that exists, and
that is something that the Commissioner is going to address by
having a process-wide quality assurance system. The other
fundamental problem deals with the ALJs looking at the evidence
and applying the rulings, the regulations and the statute. The
State agency is applying, and the problems are much more
specific and the agency will say that everybody is applying the
same law, but one is very specific, the other is more general.
We lawyers are used to dealing with generalities and applying
facts of a specific circumstance to generalized law and
regulations. That is what we do. I think that fundamental
difference of what is being applied, they tried to address it
with the PUTT, which was process unification. To some extent
they did, but it has been very incomplete. I think it is
another one of the failures that has plagued us for the past 10
years, and I really don't have a quick solution that can be
done out of hand.
Chairman SHAW. Thank you very much. Thank all of you for
being here and waiting. We have been in session now for 3
hours, and I appreciate your patience with us, but this is a
most important subject and it is one that has plagued this
Committee and I might say the Subcommittee on Social Security
for many, many years. As long as I can remember looking at it,
there has been a tremendous problem moving these cases along. I
see from the two panels that there is quite a bit of
disagreement, but I think that expediting these cases is
tremendously important, and of course, at the same time
maintaining fairness. Thank you for being here. The Hearing is
adjourned.
[Whereupon, at 4:08 p.m., the hearing was adjourned.]
[Submissions for the record follow:]
American Bar Association
Washington, DC 20005
October 14, 2004
The Honorable E. Clay Shaw and the Honorable Wally Herger
Chairmen, Subcommittee on Social Security and Subcommittee on Human
Resources
Committee on Ways and Means
U.S. House of Representatives
Washington, DC 20515-4315
Dear Chair Shaw and Chair Herger:
On behalf of the American Bar Association, I thank you and the
members of your respective subcommittees for your interest in the
Social Security Administration's disability determination process. The
American Bar Association is well aware of the myriad challenges that
confront the Social Security Administration, and we agree that few are
as pressing as the need to reduce unnecessary backlogs and delays in
the processing of disability claims and appeals. We have long advocated
increased efficiency and fairness in this system, and we have drawn
upon the experience and expertise of our membership to develop a wide
body of recommendations in this area. During the past year, we have
carefully examined Commissioner Barnhart's proposals, we have met with
the Commissioner and her staff, and we have shared with her our
positions on various elements of her plan.
We support the Commissioner's goal of making a correct decision as
early in the process as possible. To accomplish this objective, the
Social Security Administration must communicate with claimants at all
levels of the determination process, and must provide them with the
information they need to understand the process and their
responsibilities as well as the availability of legal representation.
We recommend that SSA increase its efforts to educate the medical
community about eligibility criteria used in the disability program and
the kind of evidence required to establish eligibility for benefits. In
gathering medical evidence, SSA should consult a claimant's health care
providers and compensate them adequately for providing relevant medical
information. SSA also should give special weight to reports from
treating physicians and should hold consultative examiners to the
highest medical standards. We are interested in the concept of using
nurse consultants as case managers to collect medical evidence and
coordinate the services of medical experts, but we do caution against
sole reliance on a nurse for medical assessments, particularly where a
claimant has multiple impairments.
We also support the proposal to eliminate reconsideration. We agree
that the process and the claimant could be well served by a Reviewing
Official (RO) whose job is to marshal all the evidence, prepare a
report on the claim, and issue allowances when claims are clear.
However, we do not support requiring a separate appeal to the
Administrative Law Judge if the RO recommends disallowance. This
requirement would simply replace reconsideration with another level of
appeal. It is likely to discourage some claimants from pursuing
legitimate claims, and to delay the scheduling of a hearing for others
who do appeal.
We commend the Commissioner's decision to retain the claimant's
right to a de novo hearing before an administrative law judge. Hearings
should be on the record, and the administrative law judges who conduct
those hearings should be appointed pursuant to Sec. 3105 of the
Administrative Procedure Act, Title 5 U.S.C., and applying standards
consistent with the law and with published regulations. We also support
the Commissioner's plan to preserve the non-adversarial nature of those
hearings. We have cautioned against a return to the days of the
``Government Representation Project,'' about which we have expressed
concerns related to cost, effectiveness, and fairness to claimants. On
the issue of when to close the record, the ABA has not taken a specific
position. We recently urged that Medicare beneficiaries be provided the
opportunity to reopen the record after the ALJ hearing, upon a showing
of good cause. We note that current law already restricts the
circumstances under which evidence may be submitted after the ALJ has
rendered a decision.
The Commissioner's proposal as currently articulated eliminates the
Appeals Council and replaces it with an oversight panel that reviews
ALJ decisions. Claimants who disagree with an ALJ decision would not be
permitted to request such a review; they would be required to appeal
directly to federal court. The ABA has not taken a specific position on
whether to retain or eliminate the Appeals Council, or whether to
replace it with another form of review panel. However, we have long
been concerned about significant delays at this level as well as agency
attempts to use own-motion review by the Appeals Council to compromise
the independence and impartiality of ALJ decision-making. In 1986, we
urged a complete study of Appeals Council procedures and functions to
determine whether review by this body is necessary and to explore
possible changes in the Council's structure, methods of operation,
delegation of authority, and its role as policy maker. We also
recommended that if the Appeals Council fails to act upon a request for
review within a specified period of time, claimants should be deemed to
have exhausted their administrative remedies and permitted to seek
federal court review.
We have seen improvement in the processing of cases at the Appeals
Council level in recent years, and we encourage the Commissioner to
consider the consequences of eliminating this level of appeal.
Witnesses at the September 30 hearing discussed such issues as the need
for timeliness of decision making, for fair and adequate review of ALJ
decisions, for due process safeguards for claimants, and for finality
of the agency decision (for judicial review purposes). They also raised
concerns about the cost of court appeals, the burden on unrepresented
claimants, and the burden on federal courts. We caution also that
changes to this level of appeal not create additional delays or
compromise the independence and impartiality of administrative law
judge decision making.
Finally, mention has been made of creating Article I courts to hear
Social Security appeals. The ABA has consistently opposed legislation
to create Article I Social Security courts. We have observed that
efforts to establish a separate court appear to be motivated by
concerns over the volume of appeals and the need for uniformity of
decision-making in these cases. At last week's hearing, concern also
was expressed about the likelihood of an increased burden on Article
III courts if the Appeals Council is eliminated. We have posited in the
past that Social Security appeals are not drains on federal court
resources because they are on the record reviews that in many, if not
all, jurisdictions are considered by magistrates. The more significant
problem is the need for accurate determinations at the agency level,
particularly in the early stages of the process. Fixing the system at
the front end will reduce the need for appeals. Simply shifting such
appeals to another court system is not a practical solution.
We appreciate Commissioner Barnhart's efforts to address these
important issues and we commend you for your ongoing efforts in this
area. We respectfully request that this letter be made a part of the
record of the September 30, 2004 hearing.
Sincerely,
Robert D. Evans
Director
Statement of Witold Skwierczynski, American Federation of Government
Employees, American Federation of Labor-Congress of Industrial
Organizations
Chairman Shaw, Chairman Herger, Ranking Members Matsui and Cardin,
and members of the Social Security and Human Resource Subcommittees, I
thank you for the opportunity to present this statement regarding the
Commissioner Barnhart's proposals to change the process for making
determinations regarding application's for Social Security disability
benefits.
As the President of the American Federation of Government
Employee's National Council of Social Security Field Operations Locals,
I speak on behalf of approximately 50,000 Social Security
Administration (SSA) employees in over 1500 facilities nationwide. The
employees represented by our union work in Field Offices, Program
Service Centers, TeleService Centers, Regional Offices of Quality
Assurance, Offices of Hearings & Appeals, Regional Offices,
Headquarters Offices, the Wilkes-Barre Data Operations Center, and
other facilities throughout the country where retirement and disability
benefit applications and appeal requests are received, processed, and
reviewed.
The primary message our union hopes to convey to the members of the
Subcommittee is that Commissioner's proposed changes to Social
Security's Disability Determination Process will undermine the rights
of the disabled to gain access to benefits they have earned and that
the Social Security system has a duty to provide. As employees of the
Social Security Administration, we have devoted our lives and our
careers to making the promises of Social Security a tangible reality
for our fellow citizens. We care deeply about the elderly, the
survivors of a breadwinner who has perished, and the disabled. We take
our responsibility of making sure that all those who are eligible to
receive Social Security benefits receive them, and that in their
encounters with our agency, they find our processes helpful, fair, and
efficient.
Unfortunately, Commissioner Barnhart's Disability Determination
``Reform'' undermines those goals. Ultimately, it sets up an
adversarial relationship between the SSA and those whose disabilities
have led them to seek access to Disability benefits under Social
Security. To make matters worse, the impact of these proposed
``reforms'' will fall most heavily on those who are both poor and
disabled, because they are the group least likely to be successful in
navigating a ``reformed'' system designed to require them to jump
through numerous and complex legal hoops in order to gain access to the
Social Security Disability benefits they have earned and that they
need.
Not surprisingly, the occasion of having suffered an illness or
injury that renders one disabled and in a position to apply for Social
Security Disability Benefits often leaves our fellow citizens in an
extremely weak position financially, physically, and emotionally. In
many, if not most cases, their disabling condition inhibits their
ability to seek or secure effective legal representation. The
particulars of the Commissioner's proposed ``reform'' to the Disability
Determination process would appear to exploit this fact. The inevitable
result will be denial of Disability Benefits to those who meet all the
program's explicit required criteria, but not the implicit required
criteria of aggressive and competent legal counsel and the funds to pay
for it.
The Commissioner's ``Reform'' the Disability Determination Process is
Misguided
As SSA employees who know first-hand how the agency's policies and
procedures affect beneficiaries, we can tell you that the Disability
Determination Process has flaws and is thus in need of some reform. Yet
the changes Commissioner Barnhart is pursuing do not address the areas
that are actually in need of improvement. For example,the
Commissioner's plan does little to address the need for a new quality
management system that will routinely produce information the Agency
needs to properly guide disability policy. Equity and consistency in
disability decision-making continues to be inconsistent and
problematic. Because of wide variation from state to state among the
Disability Determination Service (DDS) workforce, a claimant's chances
of being approved for disability benefits depends in large part on
where he lives. There is also variation based upon whether a claimant
has the resources to obtain medical attention.
SSA records suggest that those who have the resources to obtain
medical attention early and often have a better chance of being
approved for benefits than those whose income or resources make this
impossible. In addition, nationwide, those applying for Social Security
disability have a much greater chance of being approved than those who
may only apply for the Supplement Security Income (SSI) program.
Finally, SSA records clearly expose the inconsistencies among State DDS
decisions. More than 65 percent of Social Security disability claims
for benefits are approved in New Hampshire, while less than 32 percent
of those who file for benefits in Texas are approved. This was recently
addressed in the Government Accountability Office's (GAO, formerly the
General Accounting Office) report, GAO-04-552T.
GAO found that the state DDS's have:
Two times the turnover of the federal workforce that
performs similar work, resulting in increased costs to SSA for hiring
and training, as well as increased claims-processing times;
Difficulties in recruiting and hiring examiners due to
state-imposed compensation limits, which has contributed to increases
in claims-processing times, backlogs and turnovers;
Critical training needs that are not being met, which
have a large impact upon their examiner's ability to make disability
decisions.
It seems certain that the state DDS will continue to be plagued
with problems, in spite of SSA's efforts to provide additional
resources. So long as inconsistent initial decisions are being made by
state DDS's, we believe that it is unethical to eliminate the
reconsideration process as Commissioner Barnhart's ``reform'' requires.
AFGE Critique of Commissioner's Plan
If inconsistency as a result of the patchwork of state DDS
decisions is a problem, how can eliminating a claimant's opportunity to
seek reconsideration of that decision be the solution? As preposterous
as it is, taking away a claimant's opportunity to have a DDS decision
reconsidered is one of the key elements of the Commissioner's anti-
beneficiary ``reforms.'' The six main components of the Commissioner's
plan are as follows:
Elimination of the Reconsideration Process,
Creation of a ``Quick Decision'' Process
Creation of a ``Reviewing Official (RO)''
Elimination of the Appeals Council Review
Closure of the record
Changes quality review to ``end-of-line''
Eliminating the Reconsideration Process
The reconsideration process occurs after a DDS office makes an
initial decision to deny a claim for disability benefits and marks the
first level of appeal for a claimant. Currently, approximately one out
of every five SSI recipients receives a favorable decision at the
reconsideration level. Therefore, to eliminate the reconsideration
process would take away opportunities for appeal at a less contentious
stage and would eliminate the checks and balances of DDS examiner's
decisions. Eliminating an opportunity that now proves successful for 20
percent of disabled beneficiaries who access it is unconscionable.
Creation of a ``Quick Decision'' Process
The Commissioner's plan to create a ``Quick Decision'' unit would
mean that the DDS's receive and make decisions on the most difficult
disability claims--a task that many DDS examiners will not be able to
accomplish easily, since examiners have been found to lack the
knowledge and skills to make such decisions as determined in GAO's
January 2004 report on the ``Strategic Workforce Planning Needed to
Address Human Capital Challenges Facing the Disability Determination
Services.'' These ``Quick Decisions'' will relegate to the DDS all
complex cases. They are a poor substitute for putting adequate
resources into initial claim determination. The number of complex cases
that will be sent to the state DDS offices will lead to backlogs and
increased litigation as claimants who do not land in the ``quick
decision'' category end up in the adversarial and litigious vortex
described below.
Creation of a ``Reviewing Official''
The Commissioner's decision to implement a ``Reviewing Official
(RO)'' for the purpose of evaluating and recommending decisions to
Administrative Law Judges (ALJ) will forever change our relationship
with the public. Under the Commissioner's proposal, the Reviewing
Official, who will be an attorney, will prepare a pre-hearing report.
If the reviewing official recommends denial of the claim, the only way
an ALJ can overturn the Reviewing Official's decision will be through a
written legal brief that refutes every point made by the Reviewing
Official.
The brief must describe the supporting evidence and basis for his/
her decision if that decision conflicts with that of the Reviewing
Official. Not only will this procedure result in forcing already over-
worked ALJs to spend more time and resources on each case, it will also
create new delays, backlogs, and litigation. Even more disturbing from
the perspective of those who view the role of SSA as facilitating--not
impeding--the delivery of Social Security benefits to those who meet
eligibility requirements is that it places the new and increased
burdens upon claimants. They will now have not only to make the case
that they meet eligibility requirements, but they will also have to
disprove every argument a Reviewing Official has put forth against
them. This change will require the claimant to hire an attorney to
pursue his/her claim for benefits, and dramatically increase the
likelihood of prolonged litigation that serves neither SSA nor the
claimants.
Elimination of Appeals Council Review
The Commissioner's plan is to deprive claimants of what was the
last step in the appeal's process, the Appeals Council Review. In its
place would be a sample end of line review and ALJ oversight that would
review only a few decisions made by the Office of Hearings and Appeals.
This change represents a loss in due process rights for claimants and
beneficiaries, as access to end of line review and ALJ oversight is at
the agency's discretion, and once a case is selected for end-of-line
review, no testimony or other input on the part of the claimant is
permitted.
Under the current appeal review process, approximately 28 percent
of the cases reviewed by the Appeals Council have resulted in a
decision either to reverse a decision to deny benefits, or to remand
the case back to the DDS for further development. Of the cases remanded
to DDS, approximately 75 percent result in allowances, according to
SSA's own data.
Replacing the Appeals Council with an oversight panel means that
once a claim has been denied, either by the ALJ or the oversight panel,
the claimant must appeal to the Federal District Court. Unfortunately,
this process is too expensive for most SSI beneficiaries to pursue.
Claimants who live in rural areas will also be disadvantaged by the
fact that few attorneys who practice near them will have been admitted
to practice in Federal District Court. Once again, the ability to
achieve benefits will depend on the claimant's financial resources and
where he or she lives.
Closure of the Record
The Commissioner proposes closing the record after each claim has
been processed. However, claimants who are disabled but do not have
adequate health benefits or resources may not have sufficient medical
evidence to support a claim. Under the Commissioner's ``reform'' even
if the claimant is eventually able to obtain the proper, official
medical evidence to support the claim, if it is not submitted during
the life of the claim, the claim cannot be reopened for consideration.
This is blatantly unfair to claimants, and flies in the face of SSA's
long tradition of compassion and service.
In addition, this policy will create massive increases in
duplicative workload and increases in litigation. Claimants' attorneys
will recommend, prudently, that their clients file subsequent claims
for benefits each and every time new medical evidence becomes available
in order to protect their retroactivity. The problems that will be
created by this ``reform'' will be enormous, as SSA's does not have the
capability to house or track multiple, corresponding claims.
Changing Quality Review to ``End of Line''
The Commissioner proposes that the quality review of all disability
claims be accomplished at the ``end-of-line.'' This means that after
all decisions have been made, a quality review will be done, rather
than the ``in-line'' review that has traditionally been performed.
Therefore, if a decision were improperly rendered at any level, the
errors will not be addressed in a timely manner. Additionally, the
oversight panel responsible for conducting the ``end-of-line'' reviews
will have the authority to overturn all decisions, approvals or
denials, creating a breach of due process and a more hostile
relationship with the disabled community.
If the claim has been denied, either by the ALJ or the Oversight
Panel, the claimant must appeal to the Federal District Court.
Unfortunately, this process is too expensive for most SSI recipients to
pursue. Claimants who live in rural areas will have less access to
attorneys who practice law in Federal District Courts. Once again, the
ability to achieve benefits will depend on the resources available to
an individual and where that person lives.
AFGE believes, based upon our long experience in serving the
public, that when the disabled community begins to experience these
harsh ``reforms'' the response will be anger and resentment. The
proposed changes by the Commissioner do nothing to improve the
disability decision-making. They simply reduce processing time by
eliminating steps and opportunities for claimants to make their case,
and create an adversarial posture between the agency and those we
should be serving.
Does the Commissioner's ``Reform'' Include Establishing Temporary
Benefits?
There is reason to believe that the Commissioner's new approach,
once fully implemented, will include an effort to introduce ``time
limited'' or ``temporary'' disability benefits in Social Security. A
radical move such as this is would have an enormous and detrimental
impact Social Security's disability programs.
AFGE does not make this charge lightly. Earlier this year, union
representatives became aware of SSA's plans to implement temporary
allowance demonstration projects that would provide immediate cash and
medical benefits for a specified period (12-24 months) to disability
applicants. AFGE has also learned from concerned members of management
who are unwilling to come forward publicly that the use the of the
demonstration project authority masks the agency's intention to move
directly to national implementation.
In July, 2004 meetings with SSA officials, AFGE representatives
explained that we had become aware of the plan to replace the current
disability system with ``time limited benefits.'' Those officials did
not deny such plans existed and seemed very concerned about the Union's
awareness of these plans.
The introduction of ``time-limited'' disability benefits in Social
Security will have far-reaching consequences for beneficiaries and the
burdens and requirements that SSA places upon them in the context of
the overall Social Security system. A determination by SSA regarding
the length of time that an individual can be expected to remain
disabled will inevitably be inaccurate for numerous beneficiaries.
Further, the decision to experiment with the only source of income
support that many who are both severely disabled and poor have appears
to have been taken with virtually no public debate.
AFGE urges Members of these Subcommittees to seek an assessment of
the economic impact of ``time limited benefits.'' Given, the lack of
clear guidelines for determining expected medical improvement, the time
frames are determined at the discretion of the agency. If the
Administration should follow through with plans to limit disability
benefits to a 24-month period for recipients who are expected to
medically recover in a 2-3 year period, it is possible that the vast
majority of disabled recipients can be placed in this category.
AFGE Recommendations
AFGE believes that immediate attention needs to be given to three
specific issues regarding the Social Security Disability Benefit
program: 1) Provide proper staffing and resource allocations, 2) Ensure
consistent disability decisions in a more expeditious manner, and 3)
Maintain quality, face-to-face service and assistance at the field
office level.
SSA's disability programs are at the heart of the Agency's many
challenges. AFGE is just one of many voices that have insisted that
SSA's disability structure has flaws that need to be addressed. The
Commissioner's proposals, unfortunately, fail to address or resolve any
of the systems real problems. Institutional problems continue to be
overlooked. Communication between headquarters and operations in the
field remains poor. SSA's approach of discouraging open discussion of
problems continues to exist. Workgroups designed to address problem
areas or workloads no longer include either the union or the employees
who actually do the work. These employees in field offices and
teleservice centers, who have been working at SSA's frontlines serving
the public, know what is wrong and what is needed to solve existing
problems. Although there used to be an open door policy between the
Commissioner and our union, it no longer exists.
AFGE understands that long-lasting progress will only be achieved
with the assistance of those who not only understand the problems, but
who also have the institutional experience and knowledge to repair
SSA's disability programs. Certainly much more can be accomplished in a
constructive manner with open, two-way, communications. The union
remains committed to such a process.
As I emphasized in previous testimony before the Social Security
Subcommittee, the Disability Claims Manager (DCM) pilot (another SSA
initiative) proved to be highly successful in addressing these problems
in the disability program. Processing time was significantly better. In
fact, the DCM processing time of 62 days was just over half of SSA's
initial disability claim processing time goal of 120 days. Customer
service improved dramatically. Claimants expressed record high
satisfaction rates for the DCM.
The public likes the DCM caseworker approach and wants it retained
in the current process. Although SSA contended that the DCM would cost
more than the current process, no valid data exists showing this
conclusion. Also, the pilot was prematurely terminated, before valid
statistical data could be compiled regarding full program costs. It is
unfortunate that, since the last time I testified before the SSA
Subcommittee, then Acting Commissioner, Larry Massanari, decided not to
implement the most successful new disability initiative, the DCM. The
DCM was a positive step to ensuring the public that consistent and
equitable disability decisions are made. Unfortunately, no actions were
taken to implement any of these successes, and the pilot was
terminated. AFGE urges Congress to direct the SSA justify the
elimination of this successful and innovative experiment. It is part of
the answer to the disability problem.
It seems apparent that the primary reason why SSA terminated the
DCM pilot was due to State resistance. Such resistance certainly was
not based on a poor pilot result. Instead the decision appears to have
been based on political considerations and the fear of losing work.
Congress should be very concerned when SSA spends millions of dollars
for a process that demonstrably improves the disability processing
time, yet is rejected for political reasons. The concerns of the states
are understandable in view of their unacceptably poor performance
regarding decision consistency from state to state and their poor
processing time in comparison to the DCM. However, the only real
criteria should be the level of service that is provided to the
claimant. Using customer service as a measure, the DCM exceeds State
DDS performance in virtually every category.
AFGE recommended to Commissioner Barnhart that she reconsider
former Acting Commissioner Massanari's decision and implement the
position of the DCM at SSA as soon as possible. However, the
Commissioner refuses to act on the AFGE's recommendation. AFGE is
willing to work with the Commissioner in an incremental approach to
achieving this goal. AFGE understands that there will need to be
changes in policy, processes and institutional arrangements, as well as
funding to implement this very valuable and successful position at SSA.
Legislative amendments to the Social Security Act would be
necessary to allow SSA workers to make disability decisions, however
the crisis in disability processing requires immediate, as well as
long-term changes. When trained to make medical decisions, SSA
employees can provide immediate relief to backlogged Disability
Determination Agencies, and provide faster and better service to the
public by serving as a single point of contact. The pilot demonstrates
that the public likes the DCM, employees enthusiastically support it
and that it provides substantially better service than the current
disability product. We hope that Members of this Subcommittee will take
the necessary action to ensure the DCM is part of the solution to the
disability problem.
As a short term approach not requiring legislative change, AFGE is
supportive of the ``Technical Expert for Disability'' position. This
position would provide high quality, trained field office employees the
tools to assist disability claimants in both programmatic and medical
issues, provide professional, personalized, service to applicants,
focus the disability interview, make or recommend disability decisions,
and assist the DDS's in their development and backlogs.
Another tested initiative that would save considerable disability
processing time is the Adjudicative Officer (AO). There is no question
that the AO would better serve the public than the Commissioner's
proposed Reviewing Official position. The AO, who is not an attorney,
was intended to assist Administrative Law Judges to reduce the number
of hearings and to prepare cases for efficient and expeditious
hearings. AO's were empowered to gather additional evidence and to make
favorable decisions without hearings when the evidence submitted
indicated that such a decision was appropriate. The pilot indicated
that many hearings requests were quickly adjudicated by AO's. These
workers reduced the processing time for hearing requests. The AO's met
the same fate as the DCM's. SSA cancelled the initiative. When
processing time can be legitimately reduced, why did SSA terminate a
methodology that achieved their objective? SSA should reexamine its
decision.
The AO could be either a federal or state employee and, in fact,
was located in DDS offices, ALJ Hearing offices, SSA Field Offices and
Program Service Centers. By locating the position in multiple
locations, the agency ensured the public more accessibility and
individualized service in processing their hearing requests. In
addition, by situating AO's away from hearing offices, SSA was
separating these employees from the bureaucratic OHA management
structure.
Although SSA never released any valid pilot results for the AO,
preliminary data indicated that the AO's were able to issue favorable
decisions in 17% of the hearings cases. These cases were decided based
on the evidence of record and did not require hearings before an ALJ.
For the remaining cases, the preliminary data indicated that AO's did a
good job of fully developing the record and preparing the case for
hearing.
Many hearings offices reported that the AO's work resulted in
significant time savings in cases decided by an ALJ. The preliminary
data indicated that, midway through the pilot, the quality of the AO
was approaching that of the ALJ's.
Unfortunately, SSA abolished the AO position in March 1999 despite
the fact that AO's were responsible for quicker decisions for some
applicants and a streamlined, efficient, expeditious hearing for
others. AFGE suspects that management resistance to this disability
improvement was centered on OHA fears of losing institutional control
of a portion of the hearings process. Such fears should not be
accommodated.
SSA will be unable to continue to process disability claims in a
timely and efficient manner unless the Administration and Congress
provide additional resources. Absent appropriate financing for
additional staffing, SSA cannot guarantee provision of timely payment
of benefits, correct administration of complex regulations or training
and mentoring for either current employees or new workers.
Unless Congress acts to increase SSA's administrative budget, the
agency's service levels will continue to decline, as SSA will never be
able to hire the FTE's necessary to address its workloads. We believe
that SSA's administrative budget should be set at a level that fits the
needs of Social Security's taxpayers and beneficiaries rather than at
an arbitrary level which fits within the government's overall
discretionary spending cap. If SSA's administrative budget is not
explicitly excluded from the cap on discretionary spending, SSA is
forced to compete with other Federal agencies for scarce resources
within the spending limits defined by law. The result will continue to
erode SSA's ability to provide adequate service to tens of millions of
Americans in the next decade.
Automated Electronic Disability Benefits (AeDIB)
SSA initially decided direct Offices to implement the Electronic
Disability Claims System (EDCS) gradually, beginning slowly and
eventually achieving 100 percent use as the DDS's gained access.
Unfortunately, SSA management has been overzealous in the
implementation of EDCS. This has caused tremendous problems for front
line Claims Representatives (CR) throughout the country. Neither
staffing nor interview appointment schedules has been adjusted to
enable employees to produce the EDCS claims that management has been
demanding from them. More and more employees are complaining of health
and safety problems that are a direct result of excess keying involved
in EDCS claims.
The recent decision by SSA to accelerate the national rollout of
its AeDib initiative has resulted in many problems across the nation.
Our union has conducted a nationwide survey of SSA's field office
employees. Some of the problems identified include:
Lengthier interviews due to additional keying time;
Missed and delayed breaks and lunches;
Prolonged waits in the reception area/delayed or missed
appointments;
Increased backlogs;
Additional staff needed;
Lengthier interviews. Of those employees who responded to the
Union's survey, 25% of offices overall reported spending an additional
30-45 minutes keying into the EDCS over the traditional paper process.
38% reported an additional 45-60 minutes. 24% reported more than an
additional 60 minutes. The remaining 13% reported an additional 15-30
minutes.
Missed and delayed lunches and breaks. Overall, 72% of the offices
reported missed lunches and breaks because of EDCS claims.
Prolonged waits in the reception area. 75% of the offices reported
claimants were waiting longer in reception areas. 80% said appointments
were frequently or sometimes delayed or missed because of EDCS,
resulting in an angry public.
Increased backlogs. Increased backlogs of work were reported
universally in most post-entitlement areas: re-determinations, medical
and work Continuing Disability Reviews (CDR), overpayments, and
worker's compensation were cited in virtually every response received.
Additional staff needed. 90% of the respondents reported they need
20-40% more staff because of the EDCS process.
While software enhancements may improve the EDCS process, they will
not completely resolve the problems that are being experienced. As AFGE
understands the EDCS process, the time saved will be at the back end of
the disability process, not the front end. Therefore, the time involved
to input manually volumes of medical information that was once provided
by the claimant in writing will always be a factor. Additionally, SSA
is already moving forward to require other disability forms, such as
the medical report form for appeals, to be manually input by Claims
Representatives. This will only compound the problems already
identified.
Conclusion
The Social Security system's Disability programs are a crucial
component of the social safety net, and AFGE's Social Security members
take great pride in providing service to disability beneficiaries. We
are sincerely concerned about the wellbeing of disability
beneficiaries, and consider our role as helping those who are
unfortunate enough to have experienced a disability to obtain the
Social Security benefits they have earned. We do not believe that it is
proper for SSA to set up roadblocks to impede those with legitimate
claims from obtaining their benefits. After careful study of the
Commissioner's Disability ``reform'' plan, however, we believe that it
is impossible to characterize it in any other way.
The Social Security Administration has a long and proud tradition
of working constructively with its unionized workforce to make the
Social Security system efficient, fair and ``customer-friendly.'' That
is why Social Security remains so popular and successful. The public
service ethos that SSA employees have embraced will inevitably be
undermined if Commissioner Barnhart's controversial Disability reforms
are allowed to go forward. Instead of providing care and assistance to
the disabled, the ``reforms'' will force us into an adversarial and
litigious position against the disabled. We urge you to intervene and
stop this ``reform'' from proceeding.
This concludes my statement. I will be happy to answer any
questions that Members of the Subcommittee may have.
Statement of Robin J. Arzt, New York, New York
Mr. Chairmen and Members of the Subcommittees:
I. INTRODUCTION
Thank you for the opportunity to submit this statement. My name is
Robin J. Arzt. I am an Administrative Law Judge (``ALJ'') who has been
hearing Social Security disability and Medicare cases for over ten
years at the Office of Hearings and Appeals (``OHA'') of the Social
Security Administration (``SSA'') in New York, New York, and formerly
in the Bronx, New York. This statement is presented in my individual
capacity.
My position as an Administrative Law Judge with the Social Security
Administration is stated in this statement for identification purposes
only. This statement was written in my private capacity and without the
use of federal government resources or federal work time. No official
support or endorsement by the Social Security Administration or the
United States is or should be inferred. The views expressed in this
statement are mine and do not necessarily represent the views of the
Social Security Administration or the United States.
II. COMMENTS ON COMMISSIONER BARNHART'S PROPOSAL TO IMPROVE THE
DISABILITY PROCESS
The Commissioner presented wide-ranging proposals to redesign the
disability claims process from the initial determination stage through
the final administrative decision step during her September 25, 2003,
testimony before the Subcommittee on Social Security. At the hearing,
the Commissioner proposed the elimination of the DDS reconsidered
determination step. The Commissioner also proposed the creation of an
SSA Reviewing Official (``RO''), who would be an attorney and would
review a claimant's claim file upon the claimant's appeal from an
adverse initial determination by the agency of a benefits application.
The RO would have authority to grant a benefits claim but no authority
to deny a claim outright If an RO does not fully grant a benefits
claim, the claimant has a right to appeal for a de novo hearing before
an ALJ appointed pursuant to APA. (On February 13, 2004, senior SSA
officials publicly stated that the ROs essentially would replace the
DDS reconsidered determination step and administratively are expected
to be placed within the OHA but not in the OHA hearing offices.) The
Commissioner also recommended the retention of a claimant's due process
right, upon appeal from the agency's claim denial, to a de novo
administrative hearing before an APA ALJ. In addition, the Commissioner
also proposed to replace the Appeals Council with Oversight Panels that
will include ALJs. (The Commissioner since has stated publicly that the
Oversight Panels are intended to be a quality review process, not the
final administrative appellate step.)
The Commissioner is encouraging input from a wide range of
stakeholders to aid in developing the details of her proposals prior to
issuing proposed regulations, as she stated during her September 25,
2003, and February 26, 2004, testimony before the Subcommittee on
Social Security. The Commissioner's bold proposals and inclusive
process are appreciated.
It is excellent that the Commissioner is recommending the retention
of the claimants' due process right, upon appeal from an RO's
disability claim denial, to a de novo administrative hearing before an
APA ALJ, who is an independent decisionmaker. The Commissioner's
recognition that the APA provisions were enacted for the benefit of the
claimants and to enhance the disability process should be commended.
The Commissioner made her support of the ALJs and their role in the
disability process clear during her September 25, 2003, testimony
before the Subcommittee on Social Security. The Commissioner also
reported that ALJ case ``productivity rates [in FY 2003] were the
highest in history'' during her February 26, 2004, testimony before the
Subcommittee on Social Security.
Only those proposals by the Commissioner that bear upon the SSA
appellate administrative levels are commented upon in this statement.
The remainder of this statement addresses the Commissioner's proposals
regarding the (1) treatment of an RO's Recommended Disallowance or Pre-
Hearing Report in an ALJ's decision, (2) administrative placement of
the RO within SSA, and (3) replacement of the Appeals Council with
Oversight Panels. My comments are made in the context of how the
proposals will impact upon the consistency of case outcomes at the
different decision levels, and how these proposals may be modified and
implemented to maximize the consistency of disability decisions between
the administrative levels and between the administrative levels and
initial court level. I also make comments that address concerns about
preserving the de novo nature of the ALJ hearing and ALJ decisional
independence, the timeliness of decisions at the final administrative
level, reduction of appellate caseloads at the administrative and court
levels, status and use of the Appeals Council Administrative Appeals
Judges (``AAJs'') on the Oversight Panels, and wide acceptance of the
SSA proposed regulations that may be issued to implement the proposals.
I also raise APA and other due process issues that are presented.
A. Treatment of a Reviewing Official's Recommended Disallowance or
Pre-Hearing Report in an ALJ'S Decision
The Commissioner proposes that, if an RO does not grant a
disability claim, the RO will issue either (1) a Recommended
Disallowance when the RO believes that the evidence shows the claimant
is not disabled, or (2) a Pre-Hearing Report when the RO believes that
the evidence is insufficient to determine eligibility for disability
benefits. The Pre-Hearing Report will state what evidence is needed to
successfully support the claim. The Commissioner also proposes that,
only when an ALJ is granting disability benefits, an ALJ's decision
must either state in detail why the RO's Recommended Disallowance is
being rejected, or describe the new evidence added since the RO's Pre-
Hearing Report that corresponds to the list of evidence that the RO
said is needed for a successful claim.
There is no proposal that either requires details in the ALJ's
decision regarding why the ALJ is accepting an RO's Recommended
Disallowance, or requires a description of the new evidence supporting
a denial of the claim in reference to an RO's Pre-Hearing Report.
Therefore, the Commissioner's proposal would require that an ALJ
provide a more extensive defense of granting benefits than denying
benefits when discussing the RO's Recommended Disallowance and Pre-
Hearing Report in the ALJ's decision. Accordingly, the proposal
presumes the correctness of the RO's assessment as to what evidence is
sufficient to grant or deny a disability benefits claim, which may
incorrectly be interpreted as a requirement that the RO's assessment is
entitled to some degree of deference.
The Commissioner told AALJ officers on October 24, 2003, that her
proposal regarding how an ALJ must address the RO's Recommended
Disallowance or Pre-Hearing Report in the ALJ's decision is not
intended to interfere with the APA and Social Security Act requirements
for an ALJ's decision. However, despite the Commissioner's good
intentions for the proposal, the presumption of the correctness of the
RO's assessment of the evidence that is embodied in the proposed
disparity in the required treatment of the RO's documents by the ALJ
that depends upon the outcome of the case does impinge upon the de
novo, \1\ independent nature of the ALJ's hearing and decision process.
Holding a de novo hearing means to hear a matter anew, as if it is
being heard for the first time and no decision previously was
rendered.\2\ De novo review is ``independent'' review.\3\ Accordingly,
such an impingement will foster a perception of agency pressure to deny
cases, unfairness, and improper deference to the RO documents in ALJ
denials among claimants and their representatives that likely will
result in an increase in the number of appeals from ALJ denials of
benefits.
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\1\ The ALJ level of review is a de novo review. Mathews v.
Eldridge, 424 U.S. 319, 339 n. 21 (1976).
\2\ Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir. 1992).
\3\ Premier Communications Network, Inc. v. Fuentes, 880 F.2d 1096,
1102 (9th Cir. 1989).
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Moreover, any specific regulatory requirement that that the ALJ
address the RO's documents would create the potential for erroneous
arguments on appeal and appellate findings that an ALJ's decision is
deficient for a failure to adequately address or defer to the RO's
Recommended Disallowance or Pre-Hearing Report. The standard for a
sufficient ALJ decision on appeal is whether there is substantial
evidence in the record to support the decision, not whether the ALJ
adequately addressed the contents of a prior decisionmaker's
recommended decision or report.\4\
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\4\ ``The Appeals Council will review a case if (1) There appears
to be an abuse of discretion by the administrative law judge; (2) There
is an error of law; (3) The action, findings or conclusions of the
administrative law judge are not supported by substantial evidence; or
(4) There is a broad policy or procedural issue that may affect the
general public interest.'' 20 C.F.R. Sec. 404.970(a).
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Therefore, augmenting the Commissioner's proposal to require such
statements regarding the RO documents in all ALJ decisions, regardless
of the outcome, does not cure all of the issues that the proposal
raises. The creation of these issues by the proposal suggests that the
proposal is not the most effective way to achieve greater consistency
between the RO and ALJ decisions, since the likely increase in the
number of appeals from ALJ denials and appellate error regarding how
ALJs address the ROs' documents will defeat any potential for an
increase in decision consistency between the RO and ALJ levels that the
proposal is intended to achieve.
To preserve the independent, de novo nature of the ALJ hearing and
decision, I respectfully submit that the Commissioner consider omitting
a requirement that an ALJ address the RO's documents from her proposed
regulations. (Even if the proposal is not part of the Commissioner's
proposed regulations, the ROs' documents still would be helpful in
developing the cases for the ALJ level.) The APA and Social Security
Act already require that an ALJ discuss the evidence in rendering the
decision on a disability benefits claim without reference to the
outcome of the ALJ's decision or prior agency determinations.
The APA requires that all agency administrative decisions,
including ALJ ``decisions . . . shall include a statement of (A)
findings and conclusions, and the reasons or basis therefor, on all the
material issues of fact, law, or discretion presented on the record;
and (B) the appropriate rule, order, sanction, relief, or denial
thereof.'' \5\ Title II of the Social Security Act sets forth the
elements to be included in agency administrative decisions regarding
eligibility for disability benefits:
---------------------------------------------------------------------------
\5\ 5 U.S.C. Sec. 557(c).
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Any such decision by the Commissioner of Social Security which
involves a determination of disability and which is in whole or in part
unfavorable to such individual shall contain a statement of the case,
in understandable language, setting forth a discussion of the evidence,
and stating the Commissioner's determination and the reason or reasons
upon which it is based. Upon request by any such individual or upon
request by a wife, divorced wife, surviving divorced mother, surviving
divorced father husband, divorced husband, widower, surviving divorced
husband, child, or parent who makes a showing in writing that his or
her rights may be prejudiced by any decision the Commissioner of Social
Security has rendered, the Commissioner shall give such applicant and
such other individual reasonable notice and opportunity for a hearing
with respect to such decision, and, if a hearing is held, shall, on the
basis of evidence adduced at the hearing, affirm, modify, or reverse
the Commissioner's findings of fact and such decision.\6\
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\6\ 42 U.S.C. Sec. 405(b)(1) (emphasis added).
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Decisions regarding supplemental security income eligibility under
Title XVI and Medicare eligibility under Title XVIII of the Social
Security Act must include the same elements as decisions regarding
Title II disability eligibility.\7\
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\7\ 42 U.S.C. Sec. Sec. 1383(c)(1)(A), 1395ff(b)(1).
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Instead of the proposal of a requirement that an ALJ address the
RO's documents, which places a higher burden on ALJs to justify
granting benefits than denying them, I respectfully submit that an
effective way to increase the consistency of decisionmaking between the
RO and ALJ decision levels would be to require that the RO use the same
legal standards for determining disability as those by which the ALJs
are bound, rather than the current practice of having the initial
agency decisionmakers use a different and primarily medical set of
standards. Since the ROs will be attorneys, implementation of legal
standards for their decisionmaking will be met with a success that
demonstrably has not been possible with non-attorney decisionmakers,
such as the failed Process Unification Training for DDS decisionmakers
and Adjudication Officer initiatives in the 1990s.
B. The Administrative Placement of the Reviewing Official within SSA
As is stated above, senior SSA officials recently stated that the
ROs essentially would replace the DDS reconsidered determination step
and administratively are expected to be placed within the OHA but not
in the OHA hearing offices. If an RO does not fully grant a benefits
claim, the Commissioner's proposal would provide a claimant the right
to appeal for a de novo hearing before an ALJ. Accordingly, the RO's
action on a benefits claim would be the last step of the Commissioner's
initial decision of the benefits claim, an adverse decision from which
the APA and Social Security Act provide for an appeal with reasonable
notice and opportunity for a hearing on the record before an APA
ALJ.\8\
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\8\ 5 U.S.C. Sec. 554(a); 42 U.S.C. Sec. Sec. 405(b)(1),
1383(c)(1)(A), 1395ff(a)-(b)(1).
---------------------------------------------------------------------------
Since the ROs would make the Commissioner's initial decisions of
benefits claims, I respectfully submit that the Commissioner is
required by the APA to administratively place the ROs outside of OHA.
The APA requires a separation of the adjudication function of a federal
administrative agency from its investigative and prosecutorial
functions to preserve the decisional independence of ALJs when
conducting a hearing or deciding a case. ``[An ALJ] is not responsible
to, or subject to the supervision or direction of, employees or agents
engaged in the performance of investigative or prosecution functions
for the agency.\9\ ``The APA separation of functions doctrine [set
forth in 5 U.S.C. Sec. 554(d)] requires only that the prosecutor and
the adjudicator each be responsible to the agency head by a separate
chain of authority.'' \10\ This provision safeguards against undue
agency influence and ensures that claimants receive independent
adjudications of their claims. Therefore, SSA may not place its ROs in
the same chain of command to the Commissioner as the ALJs, since the
ROs perform SSA's investigative and prosecutorial functions in
rendering initial determinations of benefits claims.
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\9\ 5 U.S.C. Sec. 554(d)(2).
\10\ Columbia Research Corporation v. Schaffer, 256 F.2d 677, 680
(2nd Cir. 1958).
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C. Replacement of the Appeals Council with Oversight Panels
The Commissioner's proposals include replacing the Appeals Counsel
with a ``Centralized Quality Control Review'' (``CQCR'') function
within SSA with the final step of administrative review being by
``Oversight Panels'' of two ALJs and one Administrative Appeals Judge
(``AAJ'') upon referral of cases by CQCR staff. The individual ALJ's
decision will be the final Commissioner's decision, if it is not
reviewed by the CQCR or if it is affirmed by an Oversight Panel. If an
Oversight Panel changes the outcome of the decision, then the Oversight
Panel decision becomes the final Commissioner's decision. A claimant
may appeal any final agency action to a United States District Court,
but no claimant's right of appeal from an ALJ's decision to an
Oversight Panel is stated. AAJs are subordinate employees who currently
serve on the SSA Appeals Council.
I offer the following information regarding the ALJ appellate panel
concept as AALJ has been proposing it to explain the many demonstrated
benefits that a fully developed appellate panel system will bring to
increase consistency between the final SSA administrative decision and
initial court decision.
The Commissioner's Oversight Panel proposal borrows from my
proposal for local appellate panels of three ALJs as the final step to
replace the Appeals Council in the Social Security Act claims
administrative process. The appellate panel proposal is part of a
detailed proposal by AALJ that I authored for an ALJ-administered
independent adjudication agency for Social Security Act benefits cases
with the exclusive jurisdiction to make the final administrative
decisions of Social Security Act Title II, XVI and XVIII benefits
claims. (The detailed adjudication agency proposal is embodied in an
AALJ policy position paper and my below-mentioned forthcoming law
review article, which are available upon request. A summary of the
adjudication agency proposal was submitted to the Subcommittee on
Social Security as AALJ President Ronald G. Bernoski's statement for
the record of the June 28, 2001, hearing on Social Security Disability
Programs' Challenges and Opportunities.)
Under the AALJ proposal, the claimants and the SSA would have a
right of appeal of an individual ALJ's decision to an appellate panel
staffed by ALJs that would consist of three ALJs who would review the
cases regionally or locally. The appellate panels would be akin to the
Bankruptcy Court appellate panels. Based upon the Bankruptcy Court
experience, the appellate panel model (1) is an appellate system that
can handle a large caseload, (2) results in higher quality decisions
because of expertise, (3) results in substantially fewer appeals to the
courts and a substantially lower reversal rate by the courts because of
the bar's and courts' confidence in the high quality of the decisions,
which reflects a higher degree of decision accuracy by three expert
decisionmakers working together, (4) results in a substantially reduced
federal court caseload, (5) results in a shorter disposition time
because the large pool of about 1,000 SSA ALJs permits the timely
determination of appeals that cannot take place with a small body such
as the Appeals Council, and (6) affords the claimants access to a local
appellate process. The elements and merits of the Bankruptcy Court
appellate panel process are discussed in detail at the end of this
statement.
The AALJ proposal for local ALJ appellate panels to replace the
Appeals Council was favorably and extensively commented upon and
recommended for use within SSA OHA in a March 2002 report commissioned
by the SSAB.\11\ It is the SSAB report that apparently brought the AALJ
appellate panel proposal to the Commissioner's attention, given the
Commissioner's reference to one of its authors, Professor Jeffrey
Lubbers, as a source during her September 25, 2003, testimony before
the Subcommittee on Social Security.
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\11\ Paul Verkuil and Jeffrey Lubbers, Alternative Approaches to
Judicial Review of Social Security Disability Cases 19-21, 56, 63-68
(March 2002), available at www.ssab.gov/verkuillubbers.pdf. This
article includes an exhaustive survey of the many recommendations over
the last 20 years to abolish the Appeals Council and suggested
replacement mechanisms, including the AALJ proposal.
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I am gratified that the Commissioner is proposing the panel
approach to replace the Appeals Council. However, so far, it does not
appear from the Commissioner's September 25, 2003, testimony and
subsequent public statements that a claimant may appeal an individual
ALJ's decision to an Oversight Panel. This is a major departure from
AALJ's recommendation that would eliminate many of the benefits of the
appellate panel concept, including much greater decisional consistency
between the final administrative and initial court levels and fewer
appeals to the federal courts. The Commissioner states that the CQCR
and Oversight Panels are a quality review process, not an appellate
step, as an explanation for why there is no claimant's right of appeal
to an Oversight Panel. Another departure from the AALJ proposal is the
use of an AAJ, a subordinate SSA employee with no protections for
decisional independence, as one member of the three-member Oversight
Panels. Also, the Commissioner has not yet determined whether the
Panels will be regional or local for better access to the claimants, as
AALJ recommends. Finally, the Commissioner has not yet determined
whether Panel membership will rotate among the SSA ALJ workforce.
I respectfully submit that the quality review step posited by the
Commissioner to the Oversight Panel level is an appeal, not only
quality review, since the outcome of the case may change and, if it
does, the Panel decision becomes the final decision of the
Commissioner. Quality review usually involves a post mortem review of
closed cases. The claimants must have a right to appeal to the Panels
in order for the claimants, SSA, the courts, and the American public to
receive the many demonstrated benefits to the Social Security
disability process of an appellate panel process, including faster
appellate decisions, increased consistency between the final SSA
administrative decisions and initial court decisions, and fewer federal
court appeals.
Without claimant appeals to the Oversight Panels, the District
Courts will be inundated with appeals from the individual ALJ
decisions, and will not have the benefits of the higher quality
decisions and reduction of caseloads that would result from the better
decisions by the Panels. There are about 100,000 claimant appeals to
the Appeals Council per year, which would be a burden for the District
Courts.
Also, permitting the agency appellate review of an ALJ's decision
by an Oversight Panel, which is relatively easier, faster and lower
cost than a District Court appeal, but limiting the claimants to only a
District Court review of an adverse ALJ decision, raises substantial
fairness and due process issues. The omission of the claimants' right
to access the final administrative appellate step to review an ALJ's
decision increases the risk that erroneous denials of benefits will not
be corrected because some claimants, particularly pro se claimants, who
would be able to pursue a relatively simple administrative appeal will
not have the wherewithal to bear the additional burden of prosecuting a
court appeal.
So that Social Security claimants, SSA, the federal courts, and the
American public reap the benefits of a Bankruptcy Court appellate
panel-style process, I respectfully submit that the Commissioner
consider modifying her Oversight Panels proposal and issue regulations
that provide that (1) a claimant has a right of appeal to the Oversight
Panels, (2) the Oversight Panels is the final step of administrative
review that must be taken by a claimant in order to seek judicial
review of the Commissioner's decision in the claimant's case, (3) only
independent decision makers may serve on the Oversight Panels, meaning
ALJs who have the protections of the APA that have been put in place
for the benefit of the claimants, (4) the Oversight Panels will be
constituted regionally or locally for claimant access, (5) the
Oversight Panels will be constituted from the full nationwide SSA ALJ
workforce to ensure nationwide ALJ participation, and (6) there will be
rotation of Oversight Panel duty among the ALJs in the SSA ALJ
workforce to ensure that the Panel ALJs have recent line experience
with hearing and deciding cases. All of these suggested modifications
are the elements of the Bankruptcy Court appellate panel process that
have made that process a demonstrated success.
The 27 AAJs from the Appeals Council may be afforded protections
for decisional independence for the benefit of the claimants by
grandfathering the AAJs into ALJ status, as was done in the 1970s for
the administrative judges who heard SSI cases.\12\
---------------------------------------------------------------------------
\12\ ``In 1977, Congress enacted Public Law Number 95-216,
containing a section entitled Appointment of Hearing Examiners, which
deemed the temporary ALJs to be permanent ALJs appointed pursuant to 5
U.S.C. Sec. 3105 of the APA.'' Robin J. Arzt, Adjudications by
Administrative Law Judges Pursuant to the Social Security Act are
Adjudications Pursuant to the Administrative Procedure Act, 22 J. Nat'l
Ass'n Admin. L. Judges 279, 304 & n. 96 (Fall 2002) (citing, Social
Security Amendments of 1977, Pub. L. No. 95-216, 91 Stat.1509, 1559
(1977)).
---------------------------------------------------------------------------
The appellate panel system should result in faster and much higher
quality decisions than those produced by the Appeals Council, but only
if it functions as an appellate step for both the claimants and agency.
A fully developed appellate panel process greatly will enhance the
consistency of outcome between the final administrative step and
District Court step, and thus reduce the number of appeals, just as it
has between the Bankruptcy Court appellate panels and next level of
judicial review.
My law review article, which is based upon the AALJ independent
adjudication agency proposal,\13\ includes a detailed statement of the
ALJ appellate panel proposal and description of the successful
Bankruptcy Court experience with the appellate panel process that I
reprint as follows for the Subcommittees' reference as the remainder of
my statement.\14\ (Minor edits have been made to make the footnote
references internally consistent.)
---------------------------------------------------------------------------
\13\ Robin J. Arzt, ``Recommendations for a New Independent
Adjudication Agency to Make the Final Administrative Adjudications of
Social Security Act Benefits Claims,'' 23 J. Nat'l Ass'n Admin. L.
Judges 267-386 (Fall 2003).
\14\ Id., at 356-361.
``Final Administrative Appellate Review by the United States Office of
---------------------------------------------------------------------------
Hearings and Appeals
``PROPOSED TERMS FOR: FINAL ADMINISTRATIVE APPELLATE REVIEW BY THE
UNITED STATES OFFICE OF HEARINGS AND APPEALS
``The Chief Judge shall establish a Social Security Appellate Panel
Service in each region composed only of ALJs in the hearing offices in
each region who are appointed for a period of years by the Chief Judge
to hear and determine appeals taken from ALJ decisions issued pursuant
to 42 U.S.C. Sec. Sec. 405(b), 1383(c), and 1395(b). ALJs who are
appointed to a Social Security Appellate Panel Service by the Chief
Judge shall be appointed and may be reappointed. The Chief Judge shall
designate a sufficient number of such panels so that appeals may be
heard and disposed of expeditiously. Multi-region panels may be
established to meet the needs of small regions. An appeal under this
section shall be assigned to a panel of three members of a Social
Security Appellate Panel Service, except that a member of such service
may not hear an appeal originating in the hearing office which is the
member's permanent duty station or the hearing office where the member
is on a temporary detail assignment.
``EXPLAINATION OF PROPOSED TERMS FOR: FINAL ADMINISTRATIVE APPELLATE
REVIEW BY THE UNITED STATES OFFICE OF HEARINGS AND APPEALS
``The USOHA will have a two tier appellate process: first, a
decision after a hearing by an ALJ, and then an appeal to a local panel
of three ALJs akin to the Bankruptcy Court Appellate Panel model. The
Appellate Panels will be required to give deference to the individual
ALJs' decisions, if they are supported by substantial evidence in the
record. This proposal is modeled in p principle on the Bankruptcy Court
Appellate Panel statute.\15\
---------------------------------------------------------------------------
\15\ 28 U.S.C. Sec. 158 (1993).
---------------------------------------------------------------------------
``The Bankruptcy Court Appellate Panels were made permissive, not
mandatory, and thus are not used in all Circuits, because of a
Constitutional issue whether the use of the Panels is an improper
delegation of Article III court jurisdiction over private rights in
bankruptcy from the District Courts. Bankruptcy Court Appellate Panel
review is a substitute for District Court review only upon all parties'
consent and appeals go directly to the regional Circuit Courts of
Appeals. Because there is no Constitutional jurisdiction issue for
administrative cases involving entitlement to public rights that were
created by statute, such as administrative determinations of
entitlement to Social Security Act benefits, the Bankruptcy Court
Appellate Panel model may be modified to make it mandatory for Social
Security Act benefits cases.\16\
---------------------------------------------------------------------------
\16\ Thalia L. Downing Carroll, Why Practicality Should Trump
Technicality: A Brief Argument for the Precedential Value of Bankruptcy
Appellate Panel Decisions, 33 Creighton L. Rev. 565 (2000); Hon.
Barbara B. Crabb, In Defense of Direct Appeals: A Further Reply to
Professor Chemerinsky, 71 Am. Bankr. L.J. 137 (1997); Tisha Morris, The
Establishment of Bankruptcy Panels Under the Bankruptcy Reform Act of
1994: Historical Background and Sixth Circuit Analysis, 26 U. Memphis
L. Rev. 1501 (1996); Thomas A. Wiseman, Jr., The Case Against
Bankruptcy Appellate Panels, 4 Geo. Mason L. Rev. 1 (1995).
---------------------------------------------------------------------------
``The appellate panel system is one of the key features that makes
the self-governing ALJ model superior to the current structure and
commission model in providing high quality service and decisions for
the claimants. The Bankruptcy Court system is another nationwide
network of tribunals that hears a high volume of cases in a specialized
area that are generated mostly from individual petitioners. There are
ninety-two Bankruptcy Courts situated in proximity to the District
Courts.\17\ There are 140 Social Security hearing offices.\18\ Over
1,500,000 cases were filed in Bankruptcy Court in 2002.\19\ As is
stated above, over 500,000 cases are brought before Social Security
ALJs every year. Accordingly, Social Security claimants can benefit
from the use of an appellate system that has proven to work on a large
scale.
---------------------------------------------------------------------------
\17\ 28 U.S.C. Sec. 152 (2003).
\18\ See Social Security Online, available at http://ftp.ssa.gov/
oha/hearing_process.html.
\19\ Judicial Facts and Figures of the United States Courts: 1988-
2002, Table 5.1, available at http://www.uscourts.gov/
judicialfactsfigures/table5.1.htm.
---------------------------------------------------------------------------
``In addition to being an appellate system that can handle a large
caseload, the appellate panel system has several other benefits that
would afford timely, high quality service to the Social Security
claimants and Medicare beneficiaries and providers and likely reduce
the requests for judicial review:
1. First and foremost, appellate panel decisions result in higher
quality decisions. A survey of bankruptcy practitioners revealed that
two-thirds of them believed that the appellate panel decisions were
``better products'' than District Court decisions.\20\
---------------------------------------------------------------------------
\20\ Wiseman, supra note 17, at 7.
---------------------------------------------------------------------------
2. The confidence in the high quality of the appellate panel
decisions by the bankruptcy bar has resulted in less than half as many
appeals to the Circuit Courts as there are from District Court
decisions.\21\ In the Ninth Circuit in 1987, only 10% of appellate
panel decisions were appealed compared to 25% of the District Court
decisions.\22\ Also, appellate panel decisions are reversed at the
Circuit Court level less often than District Court decisions.\23\ Thus,
appellate panels substantially reduce the federal courts caseload,
which reflects a higher degree of decision accuracy.
---------------------------------------------------------------------------
\21\ Morris, supra note 17, at 1509, 1517-19 (citing, Final Report
of the Federal Courts Study Committee, 74-76 (1990); Wiseman, supra
note 17, at 7).
\22\ Id.
\23\ Id.
---------------------------------------------------------------------------
3. Appellate panels have a short average disposition time, which
was only 75 days in the Ninth Circuit in 1994.\24\
---------------------------------------------------------------------------
\24\ Morris, supra note 17, at 1530.
---------------------------------------------------------------------------
4. Appellate panels afford access by the claimants, Medicare
beneficiaries, and providers to a local appellate process.
5. The large pool of over 1,000 ALJs permits the timely
determination of appeals, which has not occurred with the SSA Appeals
Council, as stated above in part III(C). Timely and high quality review
cannot occur with a commission, which likely will not have more than
twelve members and would have to resort to hiring SSA Appeals Council-
type reviewers to handle the caseload.
6. Appellate panel work fosters the development of expertise by
the panel members, which leads to better decisions.\25\
---------------------------------------------------------------------------
\25\ Id. at 1509 (citing, Final Report of the Federal Courts Study
Committee, 74-75 (1990)).
---------------------------------------------------------------------------
7. The opportunity for appellate work increases judges' morale and
is viewed by judges as an honor and an opportunity to ``improve
judicial service to the litigants.'' \26\
---------------------------------------------------------------------------
\26\ Id. (quoting, Federal Courts Study Commission, Working Papers
and Subcommittee Reports, Vol. 1, 364 (1990)).
---------------------------------------------------------------------------
8. Although the panel work would increase the workload of the
ALJs,and thus additional judges likely will be required and additional
travel and other administrative costs incurred, \27\ given the
elimination of the Appeals Council,with its staff of 27 AAJs and over
800 support personnel and substantial facilities,\28\ and the
elimination of the DHHS Medicare Appeals Council, the costs for the
appellate panels, which can meet in already established local
facilities, likely will be less than the cost of the two Appeals
Councils. The SSA Fiscal Year 2000 Annual Performance Plan states that
the annual cost of the Office of Appellate Operations, which includes
the SSA Appeals Council, was $575 million.\29\ The SSA Fiscal Year 2000
Performance and Accountability Report states that the unit cost for the
SSA Appeals Council to hear a case is $440.\30\ Since the SSA Appeals
Council processed 146,980 appeals in fiscal year 2000, the cost of the
SSA Appeals Council process apparently was $64,671,200 in fiscal year
2000.\31\ Thus, unlike the Bankruptcy Court Appellate Panel Service,
which was a new process in addition to the appellate step that already
was available, the Social Security Appellate Panel Service is replacing
a failed appellate review step that already exists and is funded.
---------------------------------------------------------------------------
\27\ Id. at 1512-13, 1520-22.
\28\ See Social Security Online, available at http://www.ssa.gov/
oha/about_ac.html.
\29\ SSA Fiscal Year 2000 Annual Performance Plan 35, available at
http://www.ssa.gov/budget/app/00appfin.htm#WorldClass.
\30\ Fiscal Year 2000 Annual Performance and Accountability Report
119, available at http://www.ssa.gov/finance/fy00acctrep.pdf.
\31\ Id.
``Thus, in summary, based upon the Bankruptcy Court experience, the
appellate panel model (1) is an appellate system that can handle a
large caseload, (2) results in higher quality decisions because of
expertise, (3) results in substantially fewer appeals to the courts and
a substantially lower reversal rate by the courts because of the bar's
and courts' confidencein the high quality of the decisions, which
reflects a higher degree of decision accuracy fromthree expert
decisionmakers working together, (4) results in a substantially reduced
federal court caseload, (5) results in a shorter disposition time
because the large pool of about 1,000 ALJs permits the timely
determination of appeals that cannot take place with a small body such
as the SSA Appeals Council or a Commission, and (6) affords the
claimants access to a local appellate process.
``A final point that should be considered is whether the appellate
panel decisions should be given precedential value by the individual
ALJs sitting in either the hearing office or entire region where the
appeal originated.\32\ However, the policy-making authority of the SSA
and DHHS cannot be usurped.''
---------------------------------------------------------------------------
\32\ Downing Carroll, supra note 17, at 571-77.
---------------------------------------------------------------------------
(My position as an Administrative Law Judge with the Social
Security Administration is stated in this statement for identification
purposes only.)
Dothan, Alabama 36301
September 28, 2004
Congressman E. Clay Shaw, Jr.
Chairman, Subcommittee on Social Security
Congressman Wally Herger
Chairman, Subcommittee on Human Resources
United States House of Representatives
Ways and Means Committee
1100 Longworth House Office Building
Washington, D.C.
Dear Congressmen Shaw and Herger:
This letter is to be placed in the record of the above-referenced
hearing. I am an attorney in Dothan, Alabama. I represent numerous
individuals with claims for social security disability. I have some
concerns and comments regarding the proposed changes in the claims
administration process.
1. The record should be fully developed by a fully staffed
Disability Determination Service. Currently, there is a great lack of
uniformity in obtaining and reviewing claimant's medical records.
Regional Expert Review Units should be accessible to all claimants.
2. Adequate compensation and information regarding the standards
for assessing disability should be given to doctors who respond to
requests for narrative letters.
3. The eDIB should require the scanning and notation of all
documents contained in the claimants file, and should be backed up off
site. A copy should be transmitted to the claimant or representative
free of charge, and a paper copy should be provided to unrepresented
claimants.
4. Digital recording of hearings should be required and available
to the claimant or representative upon request. The use of video
teleconferencing should be discouraged unless requested by the
claimant. The lack of personal contact in assessing disability and
inaccessibility of the judge, hearings officer (assistant) and experts
to the claimant and counsel is simply too damaging to utilize this
process.
5. The reconsideration level should be omitted in all states,
whether under the present designation or a Reviewing Officer. It has
been very successful in Alabama and the other states in which it was
eliminated. Very few cases are allowed on reconsideration. It is more
feasible to proceed directly to the ALJ for a hearing.
6. The hearing before the ALJ should be the next step after
initial denial to expedite the process.
7. There is no need for SSA to have staff attorneys at hearings
or reviewing the record, such as a Reviewing Offical. However, staff
attorneys could review cases for on the record decisions.
8. Favorable decisions should be issued with a brief form stating
the basis for the decision but without the great detail required when
the claim is denied. This would allow approved claims to be issued more
rapidly to people who desperately need the help. Issuance of decisions
from the bench in appropriate cases would help as well.
9. The record should be held open for evidence that could not be
submitted prior to the hearing.
10. Appeals council review upon request of the claimant should be
retained as a useful buffer to the district court. Other review of
determined cases is not appropriate barring an appeal.
11. The Federal District court should be retained as the court of
last resort, pending review by the normal means.
Thank you very much.
Very truly yours,
Bryan S. Blackwell
Statement of Emily Stover Derocco, Employment and Training
Administration, U.S. Department of Labor
Mr. Chairman, thank you for the opportunity to provide the
Employment and Training Administration's (ETA) perspective on ``return
to work'' efforts for individuals with disabilities.
ETA supports the return to work efforts carried out by the Social
Security Administration (SSA), which has been a subject of this
hearing. We also believe that the One-Stop Career Center system
established under the Workforce Investment Act can play a vital role in
helping individuals with disabilities enter jobs or return to work.
Striving for Full Engagement in the Labor Market
On February 1, 2001, President Bush announced his New Freedom
Initiative, an effort to eliminate barriers to equality that many
Americans with disabilities face. One of five key components of this
initiative is ``Integrating Americans with Disabilities into the
Workforce.'' This includes expanding educational and employment
opportunities and promoting full access to community life for people
with disabilities. ETA is committed to achieving this goal.
Although it is critically important that individuals with
disabilities have the opportunity to become fully engaged in the labor
market, unfortunately, unemployment and underemployment remain
unacceptably high for people with disabilities. According to the 2000
Census, among the civilian non-institutionalized population age 21-64,
only 57% of individuals with disabilities are employed, compared with
77% of individuals without disabilities.
Meanwhile, the demand for skilled workers in our nation is
outpacing supply, resulting in attractive high-paying jobs that go
unfilled. It is necessary that we tap into new or previously untapped
or underutilized skilled labor pools, such as individuals with
disabilities, to help ensure that industries have the supply of skilled
workers they need in order to successfully compete in today's economy.
Through our efforts surrounding the President Bush's High Growth Job
Training Initiative (HGJTI), we have been hearing directly from
employers about the importance of this critical issue.
The HGJTI is a strategic effort to prepare workers to take
advantage of new and increasing job opportunities in high-growth/high-
demand and in economically vital industries and sectors of the American
economy. The foundation of this initiative is partnerships that include
the workforce investment system, business and industry, training
providers and economic development entities working collaboratively to
develop solutions to workforce challenges facing industries and to
develop maximum access for American workers to gain the competencies
they need to obtain jobs and build successful careers in these
industries.
To date, ETA has focused on 12 ``high-growth'' industries. These
industries have high growth in new jobs, a high rate of change in
workforce skill needs, or are industries with new and emerging careers.
The targeted industries include: automotive, advanced manufacturing,
biotechnology, construction, energy, financial services, geospatial
technology, health care, hospitality, information technology, retail,
and transportation sectors.
Through the HGJTI we have conducted executive forums to identify
the challenges these industries face. Through these forums, I have
personally had the opportunity to meet with these industry leaders and
listen as they identify their greatest workforce challenges. Although
different industries may face unique challenges, one clear, overarching
challenge faced by these diverse industries is finding a sufficient
pool of skilled labor.
In response to the challenges that are identified, ETA holds
``solution forums'' to help these industries find solutions to the
challenges they face. Representatives from all sectors have agreed with
ETA that one ``solution'' to the shortage of skilled labor is finding
access to new and/or previously untapped or underutilized labor pools,
including individuals with disabilities. ETA believes that the One-Stop
Career Center system can play a strong role in brokering relationships
between these industries and the skilled labor they need, including
individuals with disabilities, and helping individuals with
disabilities obtain the current skills needed for gainful employment.
Interagency Coordination
In addition to our efforts under the HGJTI, we are also working
closely with other federal agencies to develop coordinated strategies
designed to move individuals with disabilities into competitive
employment. These efforts support President Bush's New Freedom
Initiative by addressing several policy issues surrounding integrating
Americans with disabilities into the workforce.
To enhance coordination across agencies, ETA has convened an Inter-
Agency Coordinating Forum for Individuals with Disabilities and the
Workforce. The forum offers an arena in which federal leaders can
develop strategies, share information, and coordinate efforts around
serving individuals with disabilities. Participants in this Forum
include high-level participation from DOL's Office of Disability
Employment Policy (ODEP), Veterans Employment and Training Services
(VETS) and ETA; the Department of Education's Office of Special
Education and Rehabilitative Service (OSERS); the Social Security
Administration's Office of Disability and Income Support Programs; and
the White House Domestic Policy Council.
At our most recent Forum, we had the opportunity to meet with
employers to discuss strategies that the federal government can
undertake to help employers hire individuals with disabilities. They
identified challenges and activities, including:
Making the ``business case'' for hiring people with
disabilities, and letting other businesses know the value of hiring
individuals with disabilities.
Integrating information at the Federal level to provide
tools, resources, and promising practices.
Not only making information available, but also
conducting an awareness campaign around hiring individuals with
disabilities.
Helping employers access and recruit individuals with
disabilities, and, conversely, helping persons with disabilities
understand the pathway through the public workforce system to employers
with good jobs with career ladders and good benefits.
ODEP, working with its DOL colleagues, is engaged in activities
that address a number of these challenges. ODEP is currently compiling
promising disability employment practices from both the federal and
private sectors and providing the information and resources that
employers need to successfully recruit, develop, retain, and return
individuals with disabilities to work. Through its Employer Assistance
Referral Network (EARN), ODEP is in the process of developing the
``business case.'' This work will help employers access, recruit and
retain individuals with disabilities. Furthermore, ODEP's Job
Accommodation Network (JAN) provides free, nationwide technical
assistance and training on accommodation strategies for new and
returning workers.
Moreover, over the past 18 months ODEP has partnered with HHS'
Office on Disability (OD) to address, with other federal partners
(Education, Commerce, Justice, Transportation, HUD, SSA, and Interior),
the comprehensive service needs, including employment, of young adults
with disabilities between the ages of 16 to 30. ODEP, in conjunction
with ETA, has also worked with the HHS Substance Abuse and Mental
Health Services Administration (SAMHSA) as a key federal partner in
helping to develop and implement SAMHSA's mental health systems
transformation plan pursuant to the report of the President's New
Freedom Commission on Mental Health.
Efforts to Enhance the Capacity of One-Stop Career Centers
In order for the One-Stop Career Center system to fully assist
individuals with disabilities and the industries who seek to hire
individuals with disabilities, One-Stop Career Centers must be
physically and programmatically accessible. Although there is still
work to be done, the One-Stop Career Center system has become
increasingly accessible through initiatives such as the Disability
Program Navigator, Work Incentive Grants, and the issuance of the
Workforce Investment Act (WIA) Section 188 Disability Checklist.
First, the Disability Program Navigator (DPN) is a collaborative
effort funded by DOL and SSA. The DPN is a position in the One-Stop
Career Center that helps people with disabilities ``navigate'' through
the enormous challenges of seeking work. Complex rules surrounding
entitlement programs, along with fear of losing cash assistance and
health benefits, can often discourage people with disabilities from
working. DOL and SSA have established the DPN to better inform
beneficiaries and other individuals with disabilities about the work
support programs now available through One-Stop Career Centers,
including facilitating access to counseling on the impact of employment
on the individual's cash assistance or health benefits.
Navigators work closely with other programs funded by SSA. Examples
include the Benefits Planning, Assistance, and Outreach (BPAO) program,
which helps SSA beneficiaries make informed choices about work, and
Area Work Incentives Coordinators (AWIC) whose duties include assisting
with public outreach on work incentives, training on SSA's employment
support programs for personnel, and monitoring disability work-issue
workloads in their areas.
Through grants to seventeen states, approximately 120 Navigator
positions were established in One-Stops in program year 2003, with
another 80-100 positions to be added in program year 2004. These
navigators are building the capacity of the One-Stop Career Center
system to serve individuals with disabilities and to help these
individuals find and retain employment.
Also, Work Incentive Grants have helped local areas increase the
employability, employment and career advancement of people with
disabilities through enhanced service delivery in the One-Stop Career
Center system. These grants have been used to support physical access
to services for people with disabilities.
In addition, DOL's Civil Rights Center (CRC), in cooperation with
ETA and ODEP, developed a ``WIA Section 188 Disability Checklist'' to
help ensure One-Stop Career Centers are accessible for individuals with
disabilities. The Checklist is designed to ensure meaningful
participation of people with disabilities in programs and activities
operated by recipients of financial assistance under WIA.
Finally, there is opportunity for One-Stop Career Centers to
participate more fully as Employment Networks in the Ticket-to-Work
program, authorized by the Ticket to Work and Work Incentives
Improvement Act (TTWWIIA). Through this program, eligible individuals
are given a ticket that can be voluntarily used to obtain employment-
related services at Employment Networks (EN) or State Vocational
Rehabilitation (VR) agencies. The purpose of the Ticket program is to
give SSI and SSDI beneficiaries greater choice of service providers,
beyond the traditional VR agencies. An EN or VR agency that accepts a
ticket assumes responsibility for coordinating and delivering
employment-related services to the beneficiary.
To date, One-Stop Career Center participation as Employment
Networks has been minimal. ETA is committed to continue working with
SSA to maximize One-Stop Career Center participation in the Ticket-to-
Work program.
Conclusion:
In conclusion, ETA is working to carry out the mandates of the
President's New Freedom Initiative, to meet the needs of employers and
to help individuals with disabilities integrate into the labor force.
As such, ETA strongly supports SSA in its return to work efforts. ETA
and SSA continue to work collaboratively to help individuals with
disabilities enter the workforce for the first time or return to work.
Further, the One-Stop Career Center system can play a strong role in
helping individuals with disabilities find or return to work, through
community connections, connections to employers and the system's pulse
on the labor market.
Federal Bar Association
Washington, DC 20037
October 13, 2004
The Honorable Clay Shaw, Jr.
Chairman
Subcommittee on Social Security
U.S. House of Representatives
Washington, D.C.20515
Dear Chairman Shaw and Chairman Herger:
The FBA Social Security Section appreciates your leadership in
holding the joint hearing on September 30 on the Commissioner of Social
Security's proposal to improve the disability process. We request the
inclusion of this correspondence in the record of that hearing.
As you know, the Federal Bar Association is the foremost national
association of private and government lawyers engaged in practice
before the federal courts and federal agencies. Sixteen thousand
members of the legal profession belong to the Federal Bar Association.
There are also within the FBA over a dozen sections organized by
substantive areas of practice, including the Social Security Section.
The Federal Bar Association's Social Security Section, unlike other
organizations associated with Social Security disability practice and
representing the narrow interests of one specific group, encompasses
all attorneys involved in Social Security disability adjudication,
including attorney representatives of claimants, administrative law
judges, Appeals Council judges, staff attorneys in the SSA Office of
Hearings and Appeals and Office of General Counsel, U.S. Attorneys and
U.S. Magistrate Judges, District Court Judges and Circuit Court Judges.
The Social Security Section of the Federal Bar Association
generally applauds the September 25, 2003 proposal of Jo Anne Barnhart,
Commissioner of Social Security, to improve the disability adjudication
process. The Commissioner is appropriately concerned about speeding up
accurate determinations of disability. The FBA is hopeful that the
Commissioner's initiative can be implemented to achieve these goals
while preserving the claimant's right to a fair hearing.
The Commissioner has documented what our experience has confirmed:
the current system devotes excessive time to waiting for substantive
administrative action. The elimination of review levels and the
addition of procedural innovations like the Reviewing Official can
enhance the prompt, accurate determination of disability.
Our specific comments in this statement address the merits of five
components of the Commissioner's proposal: the elimination of the
reconsideration level; the establishment of the reviewing official;
preservation and improvement of the ALJ hearing; elimination of the
Appeals Council; and the closing of the record.
Elimination of Reconsideration Level
The elimination of the reconsideration review level is a
meritorious proposal to speed up the accurate adjudication of
disability claims. As suggested by the Commissioner, in too few
adjudications do reconsideration reviewers accurately distinguish
obviously disabled claimants from unentitled applicants. The FBA
supports the Commissioner's proposal to save time and money by
eliminating the reconsideration level and permitting claimants to
proceed to the hearing level sooner.
Establishment of the Reviewing Official
The Reviewing Official (RO) concept is also a well-conceived
improvement to speed up the adjudication process. Hopefully, the RO
will be able to promptly identify claimants whose medical records
establish that they are disabled, but were not awarded benefits at the
initial level for whatever reason. The RO can approve these
individuals' claims without the necessity of a full hearing. The RO
also may be able to obtain additional documentation either from
treating medical professionals or from consultants to establish
disability without the need for hearing.
We believe the RO should be an attorney familiar with due process,
who by legal training remains open to new evidence and legal
persuasion. The incumbent of this important position must be sensitive
to the rights of the claimant and the independence of the ALJs, as well
as the administrative requirements of the Social Security system. We
believe an attorney's legal training will help to assure that the RO
can administer these conflicting demands.
However, we believe if the RO cannot allow the case, the RO should
issue a prehearing report, rather than making some sort of ``denial''.
This action will preserve the de novo review nature of the hearing
process; a prehearing report will act as a road map to the claimant and
the administrative law judge (ALJ) at the hearing. The Commissioner's
idea of a ``recommended disposition'' encroaches on the independence of
the ALJ, and the claimant's right to a fair hearing with full
administrative due process.
We believe the Commissioner's proposal should make explicit that
the RO's decision is not entitled to more weight than any other
evidence in the administrative record. There should be no presumption
that the RO's disposition is an adjudication, unless it is fully
favorable to the claimant. Moreover, determinations that are not fully
favorable to the claimant should be automatically reviewed by the ALJ.
That is, the claimant would not need to file a second request for
hearing after the RO's denial in order to have his case heard by an
ALJ. These modifications, as well as the RO's issuance of a prehearing
report, would serve to preserve the independence of the Administrative
Law Judge and the claimant's right to a fair hearing with full
administrative due process.
Preservation and Improvement of the ALJ Hearing
We applaud the Commissioner's preservation of the role of ALJs. The
Federal Bar Association has consistently supported the role of the
Administrative Law Judge in the adjudication of Social Security
disability appeals. The ALJ presides over a non-adversarial process in
which the claimant is present, but the government official who rejected
the claim for benefits is not. The claimant may well be wary of such a
system and may doubt that the ALJ will impartially and independently
hear the claim for benefits. Yet that is exactly what is expected of
the ALJ. It is for this reason that the FBA is gratified that the
Commissioner's plan preserves the independence of the ALJ in the
adjudication process, and recognizes the pivotal role played by the ALJ
in providing process due every American seeking fair and accurate
determinations of disability. The ALJs are key to the effectiveness of
the adjudicatory process.
We believe the independence and quality of both medical experts and
consulting medical professionals utilized throughout the administrative
system must also be assured. Such independence is essential to the
success of the hearing process and will promote accurate
determinations. Expert, impartial, professional examinations and
testimony are crucial to the goal of accurate determinations of
disability. The Commissioner should assure that medical professionals
are truly independent, knowledgeable witnesses who testify to the
claimant's impairments and resulting abilities and limitations. Their
examinations and testimony will permit the ALJ to accurately determine
the entitlement of claimants to disability benefits.
Elimination of the Appeals Council
While we agree with the Commissioner that the abolition of the
Appeals Council will result in a faster adjudicatory process, we fear
there will be a significant loss to the administrative process without
the Appeals Council determinations and an inundation of the Federal
Courts with disability cases. According to the Social Security
Administration, the Appeals Council receives about 77,000 requests for
review each year. The Appeals Council remands 25% of the appeals back
to the ALJ. That represents over 19,000 cases that are filtered out and
do not reach federal court. According to Judge Frederick Stamp, chair
of the Committee on Federal-State Jurisdiction of the Judicial
Conference of the United States, 17,127 Social
Security disability insurance and supplemental security income
cases were filed in federal district courts during the last fiscal
year. Without the Appeals Council filter, that number could well have
doubled. In light of these caseload ramifications for the federal
courts, we are concerned by the proposal to abolish the Appeals Council
without knowing further details about the operation of the optional
quality review stage. Without these details, it is difficult to
criticize the Commissioner's proposal.
We foresee significant administrative difficulties by simply
abolishing the Appeals Council and permitting dissatisfied claimants to
proceed to District Court. The ALJs' mistakes of law or fact will not
significantly decline merely because of the new administrative process.
The Commissioner's proposed quality assurance Oversight Panels may
correct some of these errors. However, we fear that in doing so, they
may unintentionally interfere with or undermine ALJs' authority and
independence. (For example, it is unlikely that a quality Oversight
Panel that did not see and hear a medical or lay witness would overrule
an ALJ's credibility finding.) Moreover, the Oversight Panels
apparently do not provide claimants a procedure to correct or even
raise gross errors contained in ALJ decisions. Timely submitted,
definitive evidence that was not seen or considered by the ALJ, for
example, could well change the administrative outcome. Under the
Commissioner's proposal, a claimant's only recourse is to go to federal
court. Unless administrative procedures ameliorate the likelihood of
these probable outcomes, federal courts will be inundated with Social
Security litigation.
The Commissioner's quality assurance program is intended to prevent
a tidal wave of cases surging into the federal courts. Yet the
Commissioner has not explained how the Oversight Panel will: select
cases for review, how many cases will be reviewed; whether the claimant
can request review (petition for certiorari); or whether the panels
will consider new and material evidence. The devil is in the details,
and the stakeholder community needs to know these details before we can
adequately respond to the proposal of the Commissioner to abolish the
Appeals Council.
Closing the Record
There should always be a ``good cause'' exception that authorizes a
``late'' submission of evidence to the administrative proceedings.
Sometimes after a decision, a claimant further undergoes a medical
test, responds to a new treatment, or sees a new specialistwho
clarifies the claimant's medical condition. Sometimes an ALJ's decision
transforms seemingly irrelevant information into relevant evidence. If
the evidence is new and material, and there is good cause for the
failure to produce it previously, then the evidence should be made part
of the administrative record and considered. The federal courts
regularly grapple with determining whether the evidence meets this
standard. The meaning of the existing law, 42 U.S.C.Sec. 405(g), is
clear. Such a ``good cause'' exception should similarly apply at the
administrative level, just as it already does at the federal court
level, and become part of the improved disability appeal process.
We appreciate the opportunity to offer these comments and continue
to remain available to you and your staff in your conduct of oversight
of these important matters.
Very truly yours,
Gary Flack
Chairman
Social Security Section
Statement of Sudhir Jaituni, Roseville, California
Subject: Record for submission on DDS Medical Consultants (MC)
I am a Physician who works as MC at Roseville branch DDS in CA for
almost a year. Although I am relatively new in this position, I am very
impressed by the high quality of my co-workers, both the MCs and
Disability Examiners (DE). There is great amount of dedication and hard
work by both these professionals to maintain the quality. Also a sense
of helping disabled in our community pervades in the culture of work
environment.
I believe the team work between the MC and DEs has worked with
enormous success to achieve outstanding quality both in terms of
timeliness and accuracy. The contribution of MC towards both of these
goals is invaluable and cannot be replaced by regional experts or by
other professional such as Nurses on day by day basis or cost efficient
manner.. This is because an MC provides timely, on-site consults to
his/her team of DE, who he/she knows well. MC also acts as specialist
in medical field of his/her training (e.g. I have in-depth knowledge of
cancer). We have a broad mix of medical specialties at our branch and
we regularly take advantage of each other's expertise by informal
consults. MCs also save money by judicious approach to the process,
based on evaluation of objective medical findings both via review of
medical records and consultation with treating doctors with whom we
tend to reach great rapport.
I spend anywhere from 15 minutes to an hour on each case for the MC
component of disability determination so there is no delay or back log
of work due to MC consultation. Instead it helps DE in avoiding over or
under development of case in reaching favorable decision. Many cases
are expedited by using presumptive disability or TERI route.
I hope my comments will be helpful to the committee and I apologize
for an informal way of writing. Thank you for allowing my input.
Edmonds, WA 98026
September 28, 2004
U.S. House Ways & Means Committee
Joint Hearing on SSA Disability Determination Proposals
1100 Longworth HOB
Washington, DC, 20515
Dear Committee Members,
Thank you for this opportunity to comment on the issues before Ways
& Means as you begin formal discussions of Commissioner Barnhart's
proposals. As a medical consultant to the DDDS offices here in
Washington and a concerned citizen, I cannot overemphasize the
importance of these proceedings. Primarily I would like to declare my
support to the testimony you will hear from the National Council of
Disability Determination Directors (NCDDD) and the National Assn of
Disability Examiners (NADE). My own perspective is also shared here for
the record.
The Commissioner's objectives are honorable and ambitious. Like
most of my DDDS colleagues, I share her goals of improving service to
our claimants and speeding up the application process. In documents
available to you from NCDDD and NADE, we who serve on the front lines
of the determination process have some areas of agreement with
Commissioner Barnhart, and some areas of deep concern. These
organizations represent those of us who do the daily work, making the
complex decisions that provide disability benefits to the neediest of
America's needy. I urge you to consider their testimony.
Following are some highlights of the issues before you. I direct
these comments to you as a citizen, a family physician, a taxpayer, a
cancer survivor, and as someone with three years of experience with
DDDS; enough to know the system, but not long enough to lose my public
perspective.
1. NCDDD and NADE support the proposal to bring the disability
determination process into the electronic age. I wholeheartedly concur.
Implementation of `eDib' has already begun, and Commissioner Barnhart
will speak highly of these efforts. However,
Rolling this system out to the states is, at least by
some accounts, proving more difficult than expected, consuming
significant time & resources.
The software and systems utilized are already behind
the times. If we are to improve efficiency in the long run with this
system, updates and improvements will be needed that may be more costly
than anticipated, pulling money away from already strained areas.
Likewise, full implementation of eDib will be such a
fundamental change for DDDS and SSA, it is unlikely our system will
tolerate any other large-scale changes in the near future.
Suggestion: The online/electronic conversion is the priority. If
this is properly completed, many of the Commissioner's goals will be
met (reduced processing time, improved accuracy and better
documentation). Almost everything else should be considered very low
priority.
2. NCDDD and NADE strongly oppose reorganization of the DDDS
Medical Consultants (``MCs''). The Commissioner hopes to improve
efficiency and accuracy by removing the MCs from the DDDS offices and
placing a few of us in regional offices (Regional Expert Review Units),
accessible for online or perhaps chart-based consultation in select
cases. It may not be an exaggeration to say that this will paralyze the
DDDS offices, though I don't suspect NCDDD or NADE will use quite so
strong a term in public.
Presently, DDDS MCs have several important roles--
reviewing initial, reconsideration-level and continuing disability
claims, improving documentation, mentoring both new and experienced
adjudicators, providing quality assurance, and interacting directly
with treating providers to get additional, often vital information for
a claim. These services disappear under the current proposal for
restructuring.
DDDS adjudicators are a well-trained, motivated,
altruistic group, but their job is already difficult enough. Moving the
MCs off site will be yanking the proverbial rug out from under their
feet. Even the most experienced, well-trained adjudicators (15 years
and counting) have difficulty with the depth of medical information MCs
interpret every day. Our high staff turnover brings less experienced
folks to my desk even more frequently. Even if our adjudicators are
given more time to process each case, the fact is many cases hinge on
careful medical review of the application. Asking our staff to bear
this burden alone, with only nurse (one of the initial proposals) or
occasional online specialist review is asking too much. Quality,
accuracy, documentation and adjudicator retention will nosedive.
The Commissioner implies that only medical specialists
will have a role in her new system, again with the hope of improved
accuracy and efficiency. NCDDD, NADE and I instead support the
continued involvement of primary care physicians. Rarely these days are
applications based on one alleged condition. Generally we consider the
combined impairment of things like heart disease, musculoskeletal
conditions and neurologic findings. While we value the occasional input
of an orthopedic or cardiac specialist, moving such cases from desk to
desk hardly improves efficiency, especially when the great majority of
cases fall within my expertise as a primary care MD well-trained in
Social Security policies.
Keeping MCs on site not only preserves the fundamental
service we provide with individual claims, it keeps us available for
questions from QA staff, supervisors, trainers and managers. Removing
us shifts the entire paradigm and will dismantle the support network
within the DDDS offices. The resulting errors will further burden the
review and appeal system, counter to one of the clear long-term goals
of our process. For what little may be gained by centralizing the MCs,
much will be lost.
Suggestion: Leave the Medical Consultants, from both primary care
and specialty backgrounds, on site at the DDDS offices. Establishment
of the electronic determination process will provide unprecedented
access to needed specialty and reviewer input, while maintaining the
critical and complex role of on-site MCs.
3. NCDDD and NADE do not support the proposal to develop Quick
Decision units. The Commissioner believes these new units, staffed by
`medical experts', will speed service for claimants who are obviously
disabled. I am concerned that this expenditure of resources may
actually fragment our process, and do little to speed up claims.
There are three steps to our process--gathering of
information, decision, and review/appeal. Quick Decision units will not
affect the first or the third. The second is not at all time consuming,
and (as suggested by NCDDD & NADE) can be kept within the DDDS offices.
Cases brought to an MC with adequate documentation of entities like
widespread cancer, severe renal failure, and incapacitating stroke
require only minutes to process.
Suggestion: Improving our tools for evidence gathering will do far
more to reduce processing time, and should receive priority. Quick
Decision units are unnecessary. Consideration should also be given to
improving training at SSA field offices, and even placing trained DDS
adjudicators on site to identify and prioritize high probability
claims.
4. NCDDD and NADE generally support the elimination of the `recon'
step as it currently exists, as well as the number of appeals available
to a claimant after an ALJ hearing. As an alternative to the
reconsideration step, the Commissioner proposes review by an SSA
Reviewing Official. NCDDD and NADE believe this step should be left to
the more qualified DDDS staff, perhaps dedicating some of our most
seasoned adjudicators with a broad knowledge of the medical, vocational
and procedural aspects of our policies. Compared with the more narrow
experience of a social security attorney, our staff is better qualified
for this task. Currently, SSA regulations require a Medical Consultant
(MD or psych PhD) signature for all reconsideration claims; are we
prepared to modify that standard in the name of moving a minority of
cases faster?
Suggestion: If the `recon' step is modified in the name of
expediency, highly experienced DDDS adjudicators should be recruited to
fill the `RO' posts, rather than attorneys, and easy access to DDDS
Medical Consultants should be maintained.
NCDDD, NADE, the DDDS staff and consultants all share the same
goals. We are dedicated to providing superb service to our claimants.
And we welcome efforts to improve the complicated determination
process, including those proposed by the Commissioner, yet we remain
acutely aware of the risks of unnecessary reform and reorganization.
Let us see how we are doing once the electronic conversion is fully
in place. The additional, large-scale changes may have effects quite
contrary to those predicted by the Commissioner. As our claims continue
to increase in quantity and complexity, now is not the time to take
apart the DDDS engine. Thank you for your time.
Respectfully yours,
Jeff R. Merrill
Statement of James R. Shaw, National Association of Disability
Representatives, Framingham, Massachusetts
The National Association of Disability Representatives, Inc. (NADR)
is a not-for-profit organization comprised of attorneys and
professional non-attorneys representatives who provide representative
services for persons seeking to obtain or maintain disability benefits
from the Social Security Administration. Our goal is to continually
improve the quality of representation for impaired and disabled
individuals before the Social Security Administration.
We commend Commissioner Barnhart and the Social Security
Administration for their hard work to redesign and improve the
disability determination process. We believe that continued input from
various entities whose constituents are impacted, as well as
professional organizations, will provide Commissioner Barnhart with
valuable ``real world'' information, allowing her to cultivate the
original proposal into a very workable plan.
In particular, we strongly agree with other advocacy groups on the
primary importance of enacting changes that reduce unnecessary delays
for claimants. All parties involved in the process must continue to
make this system become as efficient as possible in order to obtain the
correct decision as early in the process as possible. Efficiency,
however, should not impact the fairness of someone's entitlement to
benefits.
Many of NADR's members have worked in a professional position for
various state agencies' disability determination services or other
tertiary positions such as vocational experts testifying in disability
hearings. We understand the fundamental problems that exist within the
programs but must stress the importance of removing claim backlogs,
therefore eliminating or at least decreasing delays at the later stages
of appeal. Standardization of much of the system for more consistent
decisions as early as possible should be the methodology to attain this
goal.
Since its inception in March 2000, NADR has strongly disputed the
philosophy propounded by other organizations such as NOSSCR that only
persons who have passed the bar are qualified to perform representation
services. We believe that the simple possession of a Juris Doctorate
has little or no bearing upon successful representation. Skills and
knowledge of the Social Security process, among other traits,
distinguish a good representative from one who might not be competent.
Those of us who are not attorneys but who have made this our profession
continue to seek parity with our colleagues who are attorneys. We
believe that knowledge and experience are more important than an
educational degree in determining whether an individual is qualified to
provide such specialized assistance to impaired persons.
NADR is a member of the Consortium for Citizens with Disabilities
(CCD) and agrees strongly with the position espoused in its Committee
statement except for one issue found in Section I. Reviewing Official
(RO).
CCD maintains that the Reviewing Official should be an attorney.
However, in keeping with our long held philosophical underpinnings of
parity, NADR believes that the RO does not need to be an attorney, but
should be anyone, attorney or not, who has sufficient knowledge of the
Social Security disability system. We join other organizations like the
National Council of Disability Determination Directors (NCDDD) and the
National Association of Social Security Management Associations
(NASSMA) in this view.
Our belief is that any person who by training and education has the
knowledge, expertise, and experience to understand the requirements of
proper adjudication of claims and can formulate written opinions that
can be substantiated at higher levels of review is qualified to be an
effective Reviewing Official. This may include but not be limited to:
1. Anyone who has significant expertise and experience in the
representation of disability clients before the Social Security
Administration;
2. Anyone who has attained senior status in an adjudicatory
position within Disability Determination Services; or,
3. Anyone who has attained senior status in an adjudicatory and/or
review/brief writing position within the Office of Hearings & Appeals.
In order to ensure maximum protection of claimants' rights, we
vehemently stress that candidates for this position should not be
exclusively limited to attorneys, as this may significantly limit the
scope of the job and very well may deprive the system and clients of a
better qualified person for said job.
On behalf of the National Association of Disability
Representatives, I am pleased to have provided the Subcommittee with
our views.
Statement of Lawrence A. Plumlee, Dallas, Texas Introduction:
I appreciate the House Subcommittee on Social Security's holding
this ``Joint Hearing on Commissioner of Social Security's Proposal to
Improve the Disability Process''. A wide range of suggestions have
recently been made to improve the Social Security disability
determination process, which at present is both slow in operation and
non-uniform in its application.
I testify here today on behalf of myself, a physician trained at
Johns Hopkins University, and a former EPA health advisor, who is
president or on the board of directors of several disability groups. I
wish to discuss today the experience of the determination of disability
under the direction of State Agency Consultants in Texas, and the
lessons that it may provide to the consideration of some of the new
proposals.
I previously testified to this Subcommittee about the recent
history of the Texas Rehabilitation Commission (TRC) Disability
Determination Services (DDS) at the hearing of September 25, 2003. My
testimony is now available at http://waysandmeans.house.gov/
hearings.asp?formmode=printfriendly &id=1847.
TRC determines nearly a quarter million Social Security disability
(SSDI and SSI) claims per year at the initial, reconsideration, and
Continuing Disability Review (CDR) levels on behalf of SSA at a cost of
approximately $300 each. There have been a number of problems in the
determination of Social Security disability in Texas in recent years.
In my 2003 testimony, I cited about 45 newspaper articles on the
subject published in the Houston Chronicle during 2001-3, mostly
written by reporter Alan Bernstein.
Since that time, TRC has been dissolved as an agency, with its
functions taken over by the new Texas Department of Assistive and
Rehabilitative Services (DARS) as a part of a reorganization of 12
agencies within the Texas Health and Human Services Commission (HHSC)
into 5 departments. The centralized Texas DDS unit, however, operates
under much the same external parameters as before.
II. Problems at TRC-DDS during 1996-2002:
Contributing to the problems at TRC-DDS during the late 1990's and
early 2000's was the fact that SSA under-funded Texas DDS disability
determinations during the period 1998-2001. (Notably, the cost of DDS
disability determination is only about 2-3% of total SSA disability
program costs.)
TRC Board minutes show these problems developing. The official
approved minutes of the September 14, 2000 meeting of the TRC Board
states on page 8:
``TRC Disability Determination Services Update:
Chairman Kane called on Mr. Dave Ward, Deputy Commissioner for
Disability Determination Services (DDS) to give the DDS Report.
Mr. Ward updated the Board on DDS for Fiscal Year 2000 and on the
Fiscal Year 2001 outlook, using a slide presentation (Attachment 3). He
reported on the FY 2000 targets versus the FY 2000 forecasts, with
respect to case receipts, case clearances, continuing Disability Review
(CDR) cases, and Production Per Work Year (PPWY). He discussed hard
targets (CDR cases) and soft cases. Mr. Ward noted that DDS was close
to hitting its targets despite the federal government's reduction of 20
positions, the hiring freeze, no overtime, and being restricted to only
1 Disability Examiner (DE) class. He reported that DDS was 30
production points above the rest of the nation. Mr. Ward also informed
the Board that DDS had been assisting the region to reach its overall
workload target.
Mr. Ward discussed DDS's FY 2000 profile. He reported that DDS has
initiated a Program Operations Restructure Plan and start-up of
Cooperative Disability Investigation Unit in Houston. He also reported
that DDS is ``down'' four operating units and has staged pending of
21,000 cases. Mr. Ward discussed the award structure. Persuant to Dr.
Novy's request, Mr. Ward explained that DEs and the technical support
staff working with them are eligible for state incentive awards.
Seventy-five awards were given out. Sixty percent of DDS staff received
some type of incentive award. These included lump sum merit raises.
Mr. Ward reported on DDS's 2001 Outlook and discussed the numbers
for Fiscal Year 2001 SSA Targets versus Fiscal Year 2001 DDS Proposals,
with respect to case receipts, case clearances, CDR case, and PPWY. Mr.
Ward stated that DDS would be in a rebuilding phase for the next 18-20
months and that the preceding year had hurt its infrastructure. He
reported that he had informed the ``feds'' that DDS needed three DE
classes. . . .''
Three months later, the official approved minutes of the December
7, 2000 meeting of the TRC Board states on page 13:
``TRC Disability Determination Services Update:
Chairman Kane called on Mr. Dave Ward, Deputy Commissioner for
Disability Determination Services (DDS) to give the DDS Report.
Mr. Ward updated the Board on DDS for fiscal year 2000 and on the
fiscal year 2001 Profile, using a slide presentation (Attachment 9). He
reported on the fiscal year 2000 targets versus the FY 2000 actual
performance, with respect to case receipts, case clearances, continuing
Disability Review (CDR) cases, and Production Per Work Year (PPWY). He
reported that DDS exceeded all goals and targets despite the federal
government's reduction of 20 positions, the hiring freeze, no overtime,
and being restricted to only one Disability Examiner (DE) class. He
noted specifically that DDS was 30 production points above the rest of
the nation. Mr. Ward explained, however, that without overtime, DDS
will be hard pressed to continue on target, unless targets are reduced.
He stated that budgeting probably will not get to DDS until January
2001.
Mr. Ward discussed DDS's fiscal year 2001 profile. He reported
that, according to SSA OD, the ``budget will not be sufficient to
handle workload.'' He noted that CDRs are high priority and that a
large Disability Examiners class is expected for January 2001.
Questions/Comments from the Board
Chairman Kane questioned whether this is the first time that
Congress has said ``we'' won't be able to make our targets. Mr. Ward
stated that this was correct.''
After TRC-DDS posted the lowest ``initial approval rate'' in the
nation in 2000, and the ``fake examiner'' scandal broke on September 9,
2001, SSA Region VI Commissioner Horace Dickerson traveled from Dallas
to Austin to give the TRC Board ``an update on SSA's review of TRC''.
The official approved minutes of the TRC Board meeting of September 20,
2001 states on page 11-14:
``Commissioner Dickerson stated that over the last two and a half
years, SSA has not been able to provide all the funding needed by DDSs
to process all of the claims that they have received. He acknowledged
that this has resulted in backlogs this fiscal year across the nation,
as well as in Texas. He stated that the $83 million in funding to Texas
DDS this fiscal year will allow it to process about 230,000 claims. . .
.''
``Overtime. He explained that earlier in the year, the Dallas
Region, including Texas, recognized that the Region did not receive its
appropriate share of the national Disability Determination funding. As
a result of input by the Dallas Region, SSA increased the spending
authorizations for Texas twice this calendar year. He pointed out that
Texas DDS has escalated its hiring plans, has added over eighty DEs and
over eighty adjudicators, and has implemented an overtime plan to
reduce backlogs.''
The failure of SSA to fund the Texas DDS contributed to a number of
problems during that era. The problems included:
1. Texas had the lowest ``initial approval rate'' in the nation in
2000 for Social Security disability claims--29% in September 2000
compared to a national average of about 45%. (Houston Chronicle 3-18-01
C.2, 4-22-01 p4) A number of reasons have been suggested to explain the
low rate, including that Texas examiners determined claims ``reach
different conclusions on cases that require certain judgments to be
made on an individual's capacity to work'' than the rest of nation.
(Houston Chronicle, 6-10-01 A.8.)
The low approval rate in Texas raises issues of claimants' rights
to equal protection of the laws as compared to residents of other
states.
2. Texas DDS developed a backlog of about 75,000 claims in mid-
2001--roughly 3 months processing. (Houston Chronicle, 5-3-01 A.1)
3. Texas DDS management responded to the backlog in 2000-1 by
implementing a ``waiting list'' (using undisclosed selection criteria)
for ``overtime processing'' (unequal treatment) by ``fake examiners''
(code name signature fraud) on about 12,000 claims. (Houston Chronicle
9-9-01 A.1,A.20) ``Waiting list'' claims had no single examiner
assigned who understood the entirety of the case or had responsibility
for its outcome. The use of ``fake examiners'' was ostensibly stopped
several weeks after the story was published by the Houston Chronicle.
(Houston Chronicle 9-26-01 A.1)
This two-tier processing raises issues of due process regarding
quality of decision making and accountability, and issues of equal
protection of the laws with respect to both claimants whose claims were
processed differently, and Texas claimants as compared to residents of
other states.
Two tier processing additionally raises a due process concern about
claim pre-judgment. The criteria for selection of cases for ``waiting
list'' processing has not been disclosed. The concern is that a first-
glance decision made by a file clerk rather than a Disability Examiner
(DE) or State Agency Consultant (SAC) as to the validity of a claim in
the absence of medical evidence while determining whether to use
``waiting list'' processing, and thus whether or not to process it with
a single examiner, may determine the outcome of the claim irrespective
of the merits of the case, which, for Pro Se claimants, may further
prejudice the record subsequently submitted to an ALJ on appeal to SSA.
The concern is thus that ``first impressions'' by a file clerk before
development might have determined the ultimate outcome of the decision.
4. A 2003 audit of Texas DDS by the SSA Office of Inspector
General (OIG) found that between 1998 and 2001 Texas DDS made payments
to selected hospitals for Consultative Examinations (CE's) that were
equal to those paid by TRC's Vocational Rehabilitation program, but in
excess of the SSA's Maximum Allowed Payment Schedule (MAPS) rate.
(March 2004 A-15-02-12051 Audit Report.) TRC's reimbursement rates were
set from TRC's creation in 1969 until 2001 by TRC's Medical
Consultation Advisory Committee (MCAC), and were approved by the TRC
Board. It is beyond doubt that any SSA Region VI Commissioner could
fail to understand how TRC set its rates. SSA's OIG audit found,
however, no written documentation that a waiver was issued by SSA
Region VI to TRC-DDS. The total excess payment to hospitals during
those three years was about $3.6 million plus $359,000 in TRC overhead
charges on about 49,000 claims, so the per-procedure overpayment to
selected hospitals was significant. In response to this audit, the new
TRC Interim Commissioner blamed the problem on their immediate
predecessor who had just been reassigned to HHSC, and asked that
reimbursement of the money be waived. This situation, however, must be
considered to be a management failure by SSA Region VI to oversee the
Texas DDS properly.
5. In April 2001, Dallas Administrative Law Judge (ALJ)
Christopher Lee Williams sued TRC-DDS and SSA for the failure of TRC-
DDS to perform psychiatric CE's on indigent claimants whose claims he
remanded back to TRC-DDS for further development. (See Williams v.
Massanari, et al., N.D. TX cause no. 03:01CV816, filed 04-30 2001.) The
case was dismissed for lack of standing because ALJ Williams had not
been harmed.
Thus, TRC-DDS overpaid selected hospitals for CE's performed,
apparently without written approval from SSA Region VI, even while some
indigent claimants could not get a CE exam even when DDS was ordered by
a SSA ALJ to provide one, so that those claimant's claims would
necessarily be denied for lack of medical evidence of disability, which
is required under the Social Security Act. Whether these claimants so
denied CE's could successfully sue the Texas DDS for violation of their
rights to due process and equal protection of the laws, or SSA Region
VI for failure to oversee TRC-DDS, when TRC-DDS, while overpaying
selected hospitals for some examinations, refused to do an examination
on an indigent claimant even after an ALJ indicated that a medical
examination was necessary to determine their claim properly remains,
apparently remains untested.
6. ``Kenneth S. Apfel, Commissioner of the Social Security
Administration under President Clinton, spoke at a seminar where
government officials and other experts said they were unable to
completely explain the state's relatively low approval rates in
disability cases. 'Half the answer is known, half the answer is not
known', said Apfel, now a University of Texas professor. But Texas can
start on increasing its approval rates by training case workers at the
Texas Rehabilitation Commission to take a wider approach to whether
disability applicants can no longer work, he said. Case workers in many
other states grant disability benefits more often by looking beyond
purely medical evidence to see whether people can continue to function
at work, Apfel said. `I don't think you've done enough in Texas', he
said.''(Houston Chronicle, 10-18-01 A.29.)
In evaluating disability claims on about $300 apiece, there is
limited ability to do claimant evaluations. The inference from Kenneth
S. Apfel's statement is that few Vocational Evaluations (VE's) were
being done at TRC-DDS during this era. It seems logical that, on a
limited disability determination budget with a total cost fixed to
national rates, with TRC-DDS overpaying selected hospitals
significantly for CE's, DDS might at the same time reduce VE's in order
to balance their budget.
1. Texas is said to have a lower Social Security disability
approval rate for ``psychiatric disorders'' than other states. A letter
to the editor by Leslie Gerber, director of public policy, Mental
Health Association, Houston stated of Social Security disability
recipients in Texas that ``in 1999, only 22.8 percent had a psychiatric
disability, compared to the national average of 32.1 percent, which is
nearly one and a half times higher.''(Houston Chronicle, 3-18-01 C.3.)
It has been argued, that due to the above combination of factors,
tens of thousands of otherwise legitimate Social Security claims in
Texas were improperly denied during this era, with a total fiscal
impact to claimants of hundreds of million dollars.
In summary, while the problems at TRC-DDS during this era were
multifactorial and complex, it would appear that SSA failed to properly
fund disability determinations in Texas; backlogs occurred; claim
documentation suffered while payment rates to large hospitals did not,
yet SSA Region VI failed to oversee payments; claim denial rates went
up; a stop-gap ``waiting list'' program with unspecified selection
criteria was instituted; and indigent claimants unable to afford
documentation, and those whose claims were selected for the ``waiting
list'', were denied due process. This was subsequently followed by
newspaper articles, pickets, hearings, audits, resignations, and
reorganizations.
III. Compensation of State Agency Medical Consultants at the Texas
DDS:
During the late 1990's, TRC-DDS began compensating State Agency
Medical Consultants (SAMC's) and State Agency Psychiatric Consultants
(SAPC's) working as independent contractors to advise Disability
Examiners determining Social Security disability claims on a ``piece
work'' basis.
Before TRC-DDS had the lowest ``initial approval rate'' in the
nation, and two years before the ``fake examiner'' scandal broke, the
minutes of the September 18, 1999 meeting of the TRC Medical
Consultation Advisory Committee (MCAC) record a presentation by
Elizabeth Gregowicz reviewing the operation of DDS. After a
presentation on the SSA's ``Redesign'' pilot program for improving DDS
operations and its rollout, the discussion, chronicled on page 4,
turned to SAMC compensation:
``Commissioner Arrell raised the question about our payment of
State Agency Medical Consultants (SAMC), indicating that TRC-DDS
recently made a change in how we do that. Ms. Gregowicz noted that our
budget from SSA has been shrinking in the last 10 or so years, and
consequently, DDS' have been looking for ways to enhance operational
efficiencies. Texas implemented a ``pay-per-case'' concept versus
``pay-per-hour'' for SAMC services. It appears that productivity has
increased and there is increased efficiency. Dr. Vickers said he
initially thought quality would suffer, but notes this has not
happened. The Disability Examiners are more thorough and quality has
improved. The SAMCs are contract workers and pay their own social
security and income tax. There are no ``employee'' benefits since the
SAMCs are not employees.''
The roughly 40 TRC-DDS SAMC's and SAPC's budgeted to earn more than
$100,000 per year on SAC contracts in 2002-3 were listed as contractors
on TRC's web site at http://www.rehab.state.tx.us.
Some of the SAC ``piece work'' consultants were budgeted to earn as
much as $628,000 in a year on their DDS contracts. By comparison,
typical salaries for physicians employees at Texas HHSC agencies are
$7-10,500 per month. This suggests that some Texas DDS SAMC's and
SAPC's are evaluating a LARGE number of claims each year, and that
these high-volume examiners may disproportionately affecting DDS
processing statistics and claims outcomes.
Some of these consultants also held other contracts with TRC itself
(e.g. perhaps with the Vocational Rehabilitation program), which are
listed in the Historically Underutilized Business (HUB) database on the
Texas Building and Procurement Commission web site at http://
www.tbpc.state.tx.us.
It seems arguable that a physician earning over $360,000 per year
doing ``piece work'' disability evaluations may not be spending an
appropriate amount of time to consider each individual claim,
particularly if they also have other contracts with the state.
Several example TRC-DDS SAMC and SAPC contracts are notable. The
statistics that follow have been compiled from TRC prospective
quarterly budget estimates and PBPC HUB retrospective historical data
for the years 2002-3 without respect to fiscal versus calendar years,
and thus the figures are somewhat approximate. (Note that some of these
contracts might include a ``supervisory'' bonus.) These figures,
however, outline the general issue:
1. SAMC (``S.S.'') was budgeted to earn in both 2002 and 2003
about $550,000 a year on their DDS SAMC disability determination piece
work contract, plus another $300,000 directly from TRC (e.g. which may
be for examinations or other services, such as with the Vocational
Rehabilitation program, which also might possibly require the services
of a clinic and/or staff) in each of those years, and is budgeted to
earn $628,000 on their DDS SAMC piece work contract alone in 2004.
2. SAMC (``M.D.'') was budgeted to earn between $530,000 and
$600,000 in 2003 on their DDS SAMC piece work contract, in addition to
about $320,000 directly from TRC for other work, although in 2002 they
were budgeted to earn only $330,000 in DDS SAMC piece work, plus
$178,000 directly from TRC for other work, and in 2004 are budgeted to
earn only $270,000 in DDS SAMC piece work fees.
3. SAMC (``F.C.'') is budgeted to earn $552,000 in DDS SAMC piece
work fees in 2004, although they were budgeted to earn only about
$156,000 in DDS SAMC piece work fees, and $139,000 from TRC for other
work, in 2003.
4. SAMC (``J.B.'') was budgeted to earn $429,000 in DDS SAMC piece
work fees, in addition to $39,000 from TRC for other work in 2002, but
is not listed as a TRC contractor in either 2003 or 2004.
5. SAPC (``S.D.''), a ``Chief or Emeritus SAPC'', was budgeted to
earn $311,000 in DDS SAPC piece work fees, plus another $190,000 from
TRC for other work in 2003, but was not listed as a contractor in 2004,
and has likely become a staff member at the Texas DDS agency.
6. SAPC (``J.C.'') was budgeted to earn $368,000 in DDS SAPC piece
work fees, plus another $205,000 from TRC for other work in 2003,
although they were budgeted to earn only $157,000 in DDS SAPC piece
work fees in addition to $195,000 from TRC for other work in 2002, but
are budgeted to earn $468,000 in DDS SAPC fees 2004.
There are concerns that the piece work compensation of State Agency
Consultants may induce a bias in disability determinations against
claimants with a) chronic conditions, b) complex conditions, c)
conditions whose origin, diagnosis, or effects are obscure, d)
conditions with a need to consider vocational factors in the evaluation
of disability, and e) claimants who reopen claims, reapply for
benefits, or have large files.
``Piece work'' compensation may thus arguably result in unequal
treatment both between claimants whose claims are evaluated by ``high
volume'' as compared to ``low volume'' SAMC's, and claimants whose
claims are evaluated by ``high volume'' SAMC's in Texas as compared to
claimants in other states.
``Piece work'' compensation might also provide a financial
incentive for a SAC to decide a claim on the spot based on the evidence
already in the record, rather than to request a CE or VE which may
delay the decision by many weeks.
Thus, while in 2000-1 TRC-DDS management with limited funding used
``fake examiner'' document fraud to expedite Social Security disability
claims processing--having had the lowest ``initial approval rate'' in
the nation in 2000; Texas DDS began about 1999 to expedite disability
claims by compensating State Agency Consultants on a ``piece work''
basis, some of whom now earn over a half million dollars per year in
piece work fees.
The ``piece work'' compensation policy has apparently helped solve
the backlog problem at Texas DDS, but one must ask: is this due process
in accordance with SSA national program standards, and does this afford
claimants equal protection of the laws?
The U.S. Constitution speaks directly on the issue a person's
rights to due process and equal protection of the laws with respect to
the actions of state governments:
``No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction equal
protection of the laws. '' (The Fourteenth Amendment to the
Constitution of the United States, Section 1, sentence 2.)
The U.S. Constitution also speaks directly on the issue a person's
rights to due process with respect to the actions of the U.S.
Government:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury,
except in cases arising in the land or naval forces, or in the militia,
when in actual service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for
public use, without just compensation. (The Fifth Amendment to the
Constitution of the United States.)
IV. Lessons Learned From the Texas DDS Experience:
It would appear that when SSA cut the Texas DDS disability
determination budget, in a matter of time backlogs occurred as waiting
claims began to be classified as ``staged pending''; claimant CE and VE
documentation suffered; a ``piece work'' compensation program was
instituted for the physician medical consultants; and as denial rates
went to the highest in the nation, the waiting list went from one to
three months, and management instituted a two tier ``waiting list''
processing scheme compromising quality and accountability. As a result,
claimant rights to due process and equal protection of the laws
suffered.
Overall, a budget cut of perhaps on the order of $10-20 million
from what Texas DDS ought to have been funded for operational costs for
proper disability claim development and determination, arguably
resulted an industrial-scale degradation in determination quality, and
in the denial of tens of thousands of claimants to several hundreds of
millions of dollars in benefits, including to SSDI disability benefits
which disabled workers had paid insurance premiums for to the District
of Columbia over their entire working careers.
In creating SSA, Congress delegated disability determinations to
the states while the program was being developed during the 1930's
because at the time only the states had the institutional capability to
assess disability at local locations throughout the nation. This
historical decision has had consequences today.
State DDS programs are subject to SSA budget constraints, while
operating in virtual secrecy, a situation which can easily result in
violation of claimants' U.S. Constitutional and statutory rights.
Further, state disability determination directors are often
appointed by the state governor or by senior state agency officials,
and are thus subject to internal state politics and domestic political
agendas.
It is in this context that we review current proposed changes to
the national Social Security disability determination system.
1. We believe that control of the ``initial'' levels of SSA
disability determination by state officials at state DDS agencies will
continue to present an ongoing problem of regional bias in what is
purported to be a national social insurance program.
2. We believe that SSA Regional Commissioners should have not
only the authority but also the responsibility to manage the process of
disability determination at state DDS agencies, including ensuring that
cases are properly developed, and that CE's and VE's are properly
performed.
Claimants must be fully informed of their rights in the disability
determination process, particularly as the process is being changed.
3. We believe that claimants must be fully informed at every step
in the SSA disability determination process, including their right to
directly submit medical evidence to the state agency at the time of
their initial application, and in notice of decisions of their rights
to appeal versus reapply.
We feel that a failure by a state DDS to properly develop claims
constitutes a bias against claimants with complex medical conditions,
who have limited financial resources, who file Pro Se without a lawyer,
who are homeless, or who have mental conditions. Failure to properly
develop cases further prejudices consideration of claims on appeal to
the SSA Administrative Law level. This forces claimants denied proper
development out of the ``nonadversarial'' system created by Congress,
forcing them to either forfeit rights without recourse, or to litigate
a case in Federal District Court.
4. We believe that every disability claim where there is a
colorable allegation of social insurance coverage ought to be fully
developed by a state DDS Disability Examiner.
5. We believe that SSA should fund state DDS agencies at
sufficient levels to do CE examinations on the majority of claimants,
and VE evaluations on a substantial fraction of claimants.
6. We believe that every disability claim developed by state DDS
agency ought to be reviewed by a physician consultant, rather than just
a nurse or a lawyer.
``Piece work'' compensation may improve State Agency Consultant
efficiency, but efficient does not mean fair.
7. We believe that while State Agency Consultants compensation
may include production bonuses, it should not be entirely ``piece
work''. We believe that ``piece work'' compensation institutes a bias
against several classes of disability claimants.
In a complex disability claim, with medical records from multiple
sources, and with continuing development of medical evidence, there may
be problems with obtaining medical evidence in a timely manner.
8. If the reconsideration step of the SSA disability
determination process is eliminated, we believe that methods must be
available to claimants to ensure that the entirety of their medical
records are available for consideration by the decision maker before
the initial decision is made.
The development of an electronic case file system at SSA puts into
the hands of senior DDS officials and their parent agencies--who are
subject to budgetary and political pressure--a tool which with they may
do industrial-scale fraud, should they choose to use it in such a
manner.
At present, a Social Security disability claimant may walk into a
SSA Office of Hearings and Appeals (OHA) office after filing an ALJ
appeal of a DDS denial and obtain a photocopy of their case file as
developed and determined by the state DDS, take it home, and spend
months analyzing it. Often an ALJ appeal is a claimant's first
opportunity to review how the state DDS developed their claim. The
claimant may find, for instance, that state DDS failed to request their
medical records from all providers; requested medical records for the
wrong dates; received and cited medical records subsequently found to
be missing from the case file; and even culled medical records from the
case file sent in directly by the claimant. They may also find that
State Agency consultants evaluated their claim while the file was
incomplete.
Disability Determination fraud by a State Agency is particularly
likely when a senior official at a state DDS under budgetary or
political pressure is willing to institute an official policy of fraud.
This occurred for example at TRC-DDS when an official assigned a ``fake
name'' disability determination computer account for each of the
agency's 25 claims evaluation units, such as demonstrated in a
memorandum published in the Houston Chronicle on September 9, 2001.
Claim documentation is presently available in paper format in most
states. In computer format the destruction and forging of records would
be much less obvious, and the files would be much less accessible to
claimants for verification.
9. Safeguards must be built into any computerized claims system
by which SSA can ensure the authenticity of medical records, provenance
of documents, decision authority in determinations, and an audit record
of all transactions, in order to ensure claimants due process, even
should a state DDS agency head or SSA Regional Commissioner wish to
officially sanction disability determination fraud for political or
budgetary goals.
Nothing but the ``light of day'' will change the back-room tactics
of the ``good `ol boys'' in some state DDS agencies in trashing
disability claims as their personal prejudices dictate.
10. Claimants must be allowed to examine their computerized case
file at any time, and to obtain a personal copy of the records in order
to ascertain their completeness and accuracy.
In a complex disability claim, with continuing development of
medical evidence, not all medical evidence may be available within the
first few years of the onset of disability.
11. We believe that if the proposal to close the hearing record
after the ALJ hearing is effected, there ought to be a good cause
exception which allows the submission of additional medical records.
Lack of proper appellate review of DDS denials exists in Texas
because of the close relationship between the Texas DDS and the SSA
Region VI office, the relatively small number of claims remanded by the
SSA Appeals Council, and limitations on access to the Texas Federal
District Courts for indigent and Pro Se persons, including limited
access to legal resources due to the notoriety of the Texas
Unauthorized Practice of Law Subcommittee.
12. We believe that the SSA Appeals Council has a legitimate
function, in that about 25% of appealed claims nationally are either
remanded or reversed. At the same time, we believe that the one year
backlog at the Appeals Council is too long.
Texas DDS maintained one of the highest ``accuracy'' statistics in
the nation, even during 1999-2001 while they had problems which
included having the lowest ``initial approval rate'' in the nation,
engaging in failure to do CE's and VE's while overpaying selected
hospitals for those done, and using ``fake examiners'' and doing
``waiting list'' processing. Obviously these ``accuracy'' statistics
have an internal bias due to the self-fulfilling effect of a state DDS
agency denial of a SSA disability claim, and do not reflect the true
accuracy of claims determinations.
13. We believe that the ``accuracy'' statistics for state DDS
agencies should be revised to avoid the internal bias inherent in the
current method.
14. We believe that given the number of irregularities in Social
Security disability determinations in Texas from 1996 to present,
claims determined during that period should be reviewed, and claims
with questionable handling (e.g. failure to do a CE or VE) should be
redetermined.
Let me close with the following quote:
```It rings a very serious fire bell that the Social Security
justice system is not treating all of the applicants equally or
consistently' said U.S. Rep. John Culberson, R-Houston. `And that is a
recipe for disaster under our American system of law.''' From: ``Judges
Vary Sharply on Disability Approval: Social Security Rulings Concern
Lawmakers'', Alan Bernstein and Dan Feldstein, Houston Chronicle, 7-14-
02 A.1.
Statement of Sheryl Schott, Los Angeles, California
I am a Pediatric Medical Consultant with LA West, whose primary
objective is to make the right decision the first time, in as timely a
manner as possible, and with as little expenditure as possible. In my
10 years with the program, I have educated the DEAs to refer promptly
to me any case in which phone calls to Treating doctors, hospitals,
labs can allow me to make a proper determination rapidly and without
additional cost.
I routinely call treating doctors, getting essential information to
avoid the purchase of consultative examinations, as well as Medical
Record Departments and labs who did not respond to DEA efforts alone.
Indeed, most Pediatricians and Pediatric specialists in this area are
very well known to me, through my years of service, and VERY responsive
to my phone calls and questions, again generally at no charge to the
department.
I know many of my colleagues, just as concerned, who perform the
same actions daily. We end up saving the state and federal government
significant funds as in the following situation which has occurred
quite a number of times--Lost folder case on premature infants. The DEA
wanted an automatic continuance on the basis of the lost folder, but I
insisted on the reconstruction, not previously done, which documented
the impairment of premie/growth--the basis for the comparative point
decision, the child had no new impairments in interim, and thus this
altered the determination dramatically to a cessation.
Another situation which has arisen in my experience, is where the
DEA incorrectly interpreted reports from Pediatric Cardiologist in the
case of a child with complex cyanotic congenital heart disease, who had
already undergone 2 surgical procedures. The
TP Pediatric Cardiologist reported ``doing well'' but it could be
determined from the physical exam findings that this was
``comparatively speaking'' to another child with complex cyanotic heart
disease, as the child continued with findings of cyanotic heart
disease. This was overlooked on the DEA's review of the case. There are
also many occasions where I find that the DEA has mistakenly identified
different notes/reports in the file, leading to errors in their
assessment of the correct determination.
While my colleagues and I strive to educate the DEAs in our
division as to all the above, and routinely answer multiple daily
informal questions on the full range of medical and pediatric
impairments and syndromes, as well as the adequacy of medical evidence
in a certain case or the necessity for multiple consultative exams on a
case, we recognize the benefits of our ``team'' function in making the
correct determination. The interposition of a RN is not only
unnecessary, but would also place an expensive extra link into a newly
broken chain. Nor could the RN serve all the functions of a Medical
Consultant
My colleagues and I are proud of the job that we do and our prime
objective is to assist/ educate/expedite the right decision within our
team.
Statement of Linda Fullerton, Social Security Disability Coalition,
Rochester, New York
Our group and experiences, are a very accurate reflection and
microcosm of what is happening to millions of Social Security
Disability applicants all over this nation. The current Social Security
Disability program and the process that an applicant endures when
filing for disability benefits, causes irreparable harm and has many
serious side effects including unbearable stress, depression, and in
some cases the depression is so severe that suicide seems to be the
only option to get rid of the pain, of dealing with a system riddled
with abuses against the disabled, already fragile citizens of this
country. According to past GAO reports, the SSD system is at HIGH RISK
but Congress keeps ignoring the problem.
The Social Security Disability New Approach Program is a welcome
change from what we have seen in decades past. Everyone that I have
dealt with there has been very courteous and responsive to our concerns
and I am very grateful for that. We keep in constant communication with
them as much as we are allowed to participate. But from what I can see
the proposals that are being suggested so far, by the Disability New
Approach Program, will not do very much to relieve this horrendous
situation in the very near future. While they are doing their very best
with the resources they have, they cannot do it alone, as many things
needed to truly reform this system, must be legislated by Congress. In
addition we ask that in future Congressional hearings, members of the
Social Security Disability Coalition be allowed to actively participate
instead of being forced to always submit testimony in writing, after
the main hearing takes place. We are willing to testify in person
before Congress and we should be permitted to do so. We want a major
role in the Social Security Disability reformation process, since any
changes that occur have a direct major impact on our lives and well
being.
The time it takes to process a Social Security Disability claim
from the original filing date is now, in many cases, at least 1-3 years
or longer. If claimants provide sufficient medical documents when they
originally file for benefits they shouldn't be denied at the initial
stage, have to hire lawyers, wait years for hearings, go before
administrative law judges and be treated like criminals on trial.The
current SSD process seems to be structured in a way to be as difficult
as possible in order to suck the life out of applicants in hope that
they give up or die in the process, so that Social Security doesn't
have to pay them their benefits. To a population that is already
compromised, this is unacceptable and this issue must be made a
priority for every member of Congress since it is a life and death
situation for millions. Many SSD applicants are losing EVERYTHING in
the process of applying for benefits, their homes, all their financial
resources, their healthcare and worse yet their lives.
The current claims process is also set up to line the pockets of
the legal system, since you are encouraged from the minute you apply to
get a lawyer. Why should you need to pay a lawyer to get benefits that
you have paid into all your working life? The SSD program is structured
so that it is in a lawyer's best interest for your case to drag on
since they automatically get paid a percentage of a claimant's retro
pay--the longer it takes the more they get even if they do almost
nothing. From the horror stories I hear from claimants many attorneys
are definitely taking advantage of that situation. The stress and worry
that applicants are forced to endure while applying for SSD benefits
causes further irreparable damage to their already compromised health
and is totally unacceptable. Many lose everything, and now in addition,
are also forced into a level of poverty on top of their illnesses,
which they will have to live with the rest of their lives since they
can no longer earn a living. Due to the devastation on their lives and
health, the Ticket to Work program, and any chance of possibly getting
well enough to return to the workforce, even on a part time basis, is
now out of the question.
The SSA Customer service is extremely poor and in major need of
improvement across the board. If any corporation in this country did
business like the SSA, the majority of employees would be fired on the
spot, and the company would be shut down within a year. Here is just a
small sampling of the constant complaints we receive about the Social
Security Disability system and its employees:
Extraordinary wait times between the different phases of the
disability claims process
Employees being rude/insensitive to claimants
Employees outright refusing to provide information toclaimants or
do not have the knowledge to do so
Employees not returning calls
Employees greatly lacking in knowledge of and in some cases
purposely violating Social Security and Federal Regulations (including
Freedom of Information Act and SSD Pre-Hearing review process).
Claimants getting conflicting/erroneous information depending on
whom they happen to talk to at Social Security--causing confusion for
claimants and in some cases major problems including improper payments
Complaints of lack of attention or totally ignoring--medical
records provided and claimants concerns by Field Officers, IME doctors
and ALJ's.
Fraud on the part of DDS/OHA offices, ALJ's, IME's--purposely
manipulating/ignoring information provided to deny claims.
Complaints of lost files and files being purposely thrown in the
trash
Complaints of having other claimants information improperly filed/
mixed in where it doesn't belong causing breach of security
Poor/little coordination of information between the different
departments and phases of the disability process
These complaints refer to all phases of the SSD process including
local office, Disability Determinations, Office of Hearings and Appeals
and the Social Security main office in MD (800 number).
SOCIAL SECURITY DISABILITY COALITION--SSD SYSTEM REFORM GOALS
We want to have claimants who have actually gone through the SSD
system themselves to be part of a group who actually participates in
the Social Security Disability New Approach program and which has major
input and influence on the decision making process before any final
decisions/changes/laws are instituted by the SSA Commissioner or
members of Congress. This is absolutely necessary, since nobody knows
better about the flaws in the system and possible solutions to the
problems, then those who are forced to go through it and deal with the
consequences when it does not function properly.
We want disability benefits determinations to be based solely on
the physical or mental disability of the applicant. Neither age,
education or any other factors should ever be considered when
evaluating whether or not a person is disabled. If a person cannot work
due to their medical conditions--they CAN'T work no matter what their
age, or how many degrees they have. This is blatant discrimination, and
yet this is a standard practice when deciding Social Security
Disability determinations and should be considered a violation of our
Constitution. This practice should be addressed and eliminated
immediately.
All SSD case decisions must be determined within three months of
original filing date. When it is impossible to do so a maximum of six
months will be allowed for appeals, hearings etc--NO EXCEPTIONS.
Failure to do so on the part of SSD will constitute a fine of $500 per
week for every week over the six month period--payable to claimant in
addition to their awarded benefit payments and due immediately along
with their retro pay upon approval of their claim. SSD will also be
held financially responsible for people who lose property, automobiles,
IRA's, pension funds, who incur a compromised credit rating or lose
their health insurance as a result of any delay in processing of their
claim, which may occur during or after (if there is failure to fully
process claim within six months) the initial six month allotted
processing period .
Waiting period for initial payment of benefits should be reduced to
two weeks after first date of filing instead of the current five month
waiting period.
Prime rate bank interest should be paid on all retro payments from
first date of filing due to claimants as they are losing it while
waiting for their benefits to be approved.
Immediate eligibility for Medicare/Medicaid upon disability
approval with NO waiting period instead of the current 2 years.
SSD required medical exams should only be performed by board
certified independent doctors who are specialists in the disease that
claimant has (example--Rheumatologists for autoimmune disorders,
Psychologists and Psychiatrists for mental disorders). Independent
medical exams requested by Social Security must only be required to be
performed by doctors who are located within a 15 mile radius of a
claimants residence. If that is not possible--Social Security must
provide for transportation or travel expenses incurred for this travel
by the claimant.
Too much weight at the initial time of filing, is put on the
independent medical examiner's and SS caseworker's opinion of a claim.
The independent medical examiner only sees you for a few minutes and
has no idea how a patient's medical problems affect their lives after
only a brief visit with them. The caseworker at the DDS office never
sees a claimant. The decisions should be based with much more weight on
the claimant's own treating physicians opinions and medical records. In
cases where SSD required medical exams are necessary, they should only
be performed by board certified independent doctors who are specialists
in the disabling condition that a claimant has (example--
Rheumatologists for autoimmune disorders, Psychologists and
Psychiatrists for mental disorders). Currently this is often not the
case.
All Americans should be entitled to easy access (unless it could be
proven that it is detrimental to their health) and be given FREE copies
of their medical records including doctor's notes at all times. This is
crucial information for all citizens to have to ensure that they are
receiving proper healthcare and a major factor when a person applies
for Social Security Disability.
ALL doctors should be required by law, before they receive their
medical license, and made a part of their continuing education program
to keep their license, to attend seminars provided free of charge by
the SSA, in proper procedures for writing medical reports and filling
out forms for Social Security Disability and SSD claimants.
More Federal funding is necessary to create a universal network
between Social Security, SSD/SSI and all outlets that handle these
cases so that claimant's info is easily available to caseworkers
handling claims no matter what level/stage they are at in the system.
All SSA forms and reports should be made available online for
claimants, medical professionals, SSD caseworkers and attorneys, and be
uniform throughout the system. One universal form should be used by
claimants, doctors, attorneys and SSD caseworkers, which will save
time, create ease in tracking status, updating info and reduce
duplication of paperwork. Forms should be revised to be more
comprehensive for evaluating a claimant's disability and better
coordinated with the SS Doctor's Bluebook Listing of Impairments.
Institute a lost records fine--if Social Security loses a claimants
records/files an immediate $1000 fine must be paid to claimant.
Review of records by claimant should be available at any time
during all stages of the SSD determination process. Before a denial is
issued at any stage, the applicant should be contacted as to ALL the
sources being used to make the judgment. It must be accompanied by a
detailed report as to why a denial might be imminent, who made the
determination and a phone number or address where they could be
contacted. In case info is missing or they were given inaccurate
information the applicant can provide the corrected or missing
information before a determination is made. This would eliminate many
cases from having to advance to the hearing and appeals phase.
The SSA ``Bluebook'' listing of diseases that qualify a person for
disability should be updated more frequently to include newly
discovered crippling diseases such as the many autoimmune disorders
that are ravaging our citizens. SSD's current 3 year earnings window
calculation method fails to recognize slowly progressive conditions
which force people to gradually work/earn less for periods longer than
3 years, thus those with such conditions never receive their `healthy'
earnings peak rate.
A majority of SSD claimants are forced to file for welfare, food
stamps and Medicaid, another horrendous process, after they have lost
everything due to the inadequacies in the Social Security Disability
offices and huge claims processing backlog. If a healthy person files
for Social Service programs and then gets a job, they do not have to
reimburse the state once they find a job, for the funds they were given
while looking for work--why are disabled people being discriminated
against? Claimants who file for Social Service programs while waiting
to get SSD benefits, in many states have to pay back the state out of
their meager SSD/SSI benefits once approved, which in most cases keeps
them below the poverty level and forces them to continue to use state
funded services. They are almost never able to better themselves and
now have to rely on two funded programs instead of just one. This
practice should be eliminated. In all states there should be immediate
approval for social services (food stamps, cash assistance, medical
assistance, etc) benefits for SSD claimants that does not have to be
paid back out of their SSD benefits once approved.
The claims process should be set up so there is no need whatsoever
for claimant paid legal representation when filing for benefits and
very little need for cases to advance to the hearing and appeal stage
since that is where the major backlog and wait time exists. The need of
lawyers/reps to navigate the system and file claims, and the high SSD
cap on a lawyer's retro commission is also a disincentive to
expeditious claim processing, since purposely delaying the claims
process will cause the cap to max out--more money to the lawyer/rep for
dragging their feet adding another cost burden to claimants. Instead,
SS should provide claimants with a listing in every state, of FREE
Social Security Disability advocates/reps when a claim is originally
filed in case their services may be needed.
Audio and/or videotaping of Social Security Disability ALJ hearings
and during IME exams allowed at all times to avoid improper conduct by
judges and doctors. A copy of court transcript should automatically be
provided to claimant or their representative within one month of
hearing date FREE of charge.
Strict code of conduct for Administrative Law Judges in determining
cases and in the courtroom. Fines to be imposed for inappropriate
conduct towards claimants.
We have heard that there is a proposal to give SSD recipients a
limited amount of time to collect their benefits. We are very concerned
with the changes that could take place. Since every patient is
different and their disabilities are as well, this type of ``cookie
cutter'' approach is out of the question. We especially feel that
people with psychological injuries or illness would be a target for
this type of action. Some medical plans pay 80% for treatment of
biological mental heath conditions, but currently Medicare only pays
50% for an appointment with a psychiatrist. This often prohibits
patients from getting proper treatment and comply with rules for
continual care on disability. The current disability review process in
itself is very detrimental to a patient's health. Many people suffer
from chronic conditions that have NO cures and over time these diseases
grow progressively worse with no hope of recovery or returning to the
workforce. The threat of possible benefits cut off, and stress of a
review by Social Security again is very detrimental to a recipients
health. This factor needs to be taken into consideration when reforming
the CDR process.
NOTE: The problems with the Federal Social Security Disability
program cause an extra burden on state Social Service programs, which
could be greatly reduced once this Federal program is fixed, and the
states along with the claimants would reap the benefits in the long
run. State politicians need to put pressure on congress to put more
funds into the SS system to hire more qualified claim examiners and
better educate employees, doctors and the claimants themselves to speed
up the process.
In closing, most of us were once hard working, tax paying citizens
with hopes and ``American dreams'' but due to an unfortunate accident
or illness, have become disabled to a point where we can no longer
work. Does that mean we are not valuable to our country, or give the
government and politicians the right to ignore or even abuse us? Due to
circumstances beyond our control, and on top of our disabilities, we
now live the American nightmare with no hope of relief in sight!
Contrary to popular opinion, nobody willingly chooses this type of
existence. Politicians are supposed to work FOR us not ignore us.
Anyone reading this, could suddenly find themselves dealing with these
issues in the future, and we are holding you accountable to fix these
problems now! Nobody thinks this horrible existence could ever happen
to them, but there are millions of Americans who are suffering and
dying due to this negligence, and our lives depend on your cleaning up
this mess immediately! Currently we are considered ``disposable''
people by general and government standards, so our cries and screams
are ignored, they would prefer that we just shut up or die. I am here
to tell you those days are over now. We are watching, we are waiting,
we are disabled and we vote!
Statement of Laurie L. York, Austin, Texas
Thank you for this opportunity to provide comments to this hearing
on the Commissioner's proposal to improve the disability claims
process. I am an attorney in private practice representing clients in
the Social Security Disability claims process.
I. Introduction:
Texas Disability Determination Services (DDS) is a fully federally
funded unit operating under federal law to evaluate Social Security
disability (SSDI and SSI) claims filed at the ``initial'' (initial and
reconsideration) level in Texas at its central office in Austin as
agent for the Social Security Administration (SSA). It was operated
from 1969 to March 1, 2004 under the management of the Texas
Rehabilitation Commission (TRC) by Texas state employees.
TRC-DDS had a number of problems during the past few years, ranging
from having the lowest ``initial approval rate'' in the nation in
2000--a 31% approval rate compared to a 45% rate nationally, the use of
two tier ``waiting list'' processing by ``fake examiners'' (code names
with forged signatures) on about 12,000 claims during a period of
backlog in 2001, a widespread failure to do Vocational Evaluations and
consider vocational factors in the determination of disability, the
payment in excess of SSA rates for Consultative Evaluations (CE's) to
selected providers, the refusal to do CE's on indigent claimants in
some cases even when ordered by a SSA Administrative Law Judge (ALJ),
and a low overall combined DDS and SSA approval rate for psychiatric
conditions within the state.
A review of the recent history of TRC and its DDS agency may be
found in the testimony of Lawrence A. Plumlee, M.D. to this
Subcommittee at the hearing of September 25, 2003, which is now
available at http://waysandmeans.house.gov/
hearings.asp?formmode=printfriendly &id=1847. Notably, the roughly 45
newspaper articles on the determination of Social Security disability
in Texas published in the Houston Chronicle during 2001-3 are cited,
mostly written by reporter Alan Bernstein.
There are also indications that TRC-DDS has demonstrated an
historic bias against chemical injury claims, as described in the
testimony of Stephen A. McFadden, M.S. to this Subcommittee at the
hearing of September 26, 2003, which is now available at http://
waysandmeans.house.gov/hearings.asp? formmode=view&id=1837.
This bias against chemical injury and treatment inconsistent with
SSA national program standards is supported by statements made by
Wesley Davis, the Spokesman of SSA Region VI, to the Houston Chronicle
while trying to explain Texas' having the lowest ``initial approval
rate'' in the nation in 2000, first, in March 2001, by citing a large
number of disability claims by ``under-educated manual laborers in the
oil industry and elsewhere'' who ``commonly get injured on the job'' as
an explanation--thus admitting not only the bias against chemical
injury claims at TRC but the significance of the size of the impacted
group (Houston Chronicle 3-11-01 A.1.), and second, in June 2001, by
the statement that Texas disability examiners ``reach different
conclusions on cases that require certain judgements to be made on an
individual's capacity to work'' than those of the rest of the nation,
thus admitting a lack of equal protection of the laws in TRC's DDS
operation. (Houston Chronicle 6-10-01 A.8).
The impact of these historic policies at TRC-DDS and SSA Region VI
are significant. The testimony of Stephen A. McFadden, M.S. to this
Subcommittee at the hearing of January 26, 2004, which is available at
http://waysandmeans.house.gov/
hearings.asp?formmode=printfriendly&id=2125&keywords=, estimates that
between the 12,000 ``fake examiners'' cases, the bias against chemical
injury claims by ``oil well firefighters'' cases, the failure to do
Vocational Evaluations, and the bias against psychiatric conditions and
those ``regarded as psychiatric'', in the context of having the lowest
``initial approval rate'' in the nation in 2001, approximately 30-
50,000 otherwise legitimate Social Security claims were denied during
the period from 1996-2003, or about 7-10% of the total Social Security
disability claimant pool of about a half million recipients in Texas,
with a total fiscal impact of about half a billion dollars during those
years.
This gross failure of the Social Security disability determination
process in Texas cannot be excused on grounds of budgetary constraint.
Only about 2-3 percent of the total SSA disability program budget is
spent on claims determination. The Texas DDS operation has a target
total determination cost of under $300 per claim. Obviously, $300 will
not even buy the average claimant a Consultative Evaluation by a
licensed physician.
For Social Security disability claims to be determined for under
$300 in Texas apparently requires a reduction in the number of
Consultative Examinations and Vocational Evaluations performed by DDS,
impacting claim documentation, and thus limiting the ability of
decision makers (DDS DE's and SAMC's and SSA ALJ's) to make a finding
of disability based on evidence of a ``medically determinable
impairment'' as required by SSA national program standards.
Former Commissioner of Social Security Kenneth Apfel referred to
the failure of TRC-DDS to do Vocational Evaluations or to train
Disability Examiners (DE's) to consider vocational factors in the
determination of disability in a speech at a September, 2001 conference
sponsored by the Disability Policy Consortium. ``I don't think you've
done enough'', said Apfel of the TRC-DDS' consideration of vocational
factors (Houston Chronicle article 10-18-01 A.29).
Dallas SSA Administrative Law Judge (ALJ) Christopher Lee Williams
sued TRC-DDS, TRC, and SSA in April 2001 because TRC-DDS refused to
perform Consultative Examinations on indigent claimants whose cases he
remanded back to TRC for further development, e.g. as is allowed under
SSR 97-2p Prehearing Case Review, documentation without which ALJ
Williams would presumably be forced to deny those claims for lack of
evidence, for example due to lack of evidence of a psychiatric medical
diagnosis on indigent homeless persons applying for disability.
(Williams v. Massanari, et al.; N.D. Texas Case No. 03:01CV816, filed
04-30 2001) ALJ Williams' suit was dismissed for lack of standing on
the ground he had not been harmed. Subsequently, a SSA audit found that
DDS was paying selected providers in excess of SSA approved rates
(March 11, 2004 A-15-02-12051 Audit Report.).
Since the above cited testimonies were submitted to the
Subcommittee, a number of changes have occurred in the determination of
disability in Texas.
The Commissioner of TRC was replaced on November 1, 2003
after over 22 years.
The Emeritus Chief State Agency Medical Consultant
(SAMC), who had held the position of DDS Medical Director or Chief SAMC
for much of the period 1974-2000, retired about that time.
On March 1, 2004, TRC and its board were dissolved after
35 years of operation, with its DDS, Vocational Rehabilitation, and
Early Childhood Intervention functions being integrated into the new
Texas Department of Assistive and Rehabilitative Services (DARS), along
with programs for the blind, deaf, and hard of hearing from other
agencies, while internal support functions were spun off to the Texas
Health and Human Services Commission (HHSC).
The TRC Deputy Commissioner for DDS was replaced on March
4, 2004, and the new head of Texas DDS, Mary Sconci-Wolfe, was given
the title of DARS Assistant Commissioner for DDS.
This reorganization occurred as part of plan to reorganize 12 state
agencies with a total budget of $7 Billion into 4 new HHSC departments.
As a result of these changes, TRC thus effectively ceased to exist as a
government entity on March 1, 2004.
The Texas DDS operation, however, continues under the name DARS-
DDS, at the same centralized office located at 6101 Oltorf, Austin TX,
78741, in the same locked facility with armed guards not open to the
public, still operating under federal rules with federal funding.
As of October, 2004, the new 9-member DARS ``Assistive and
Rehabilitative Services Council'' has yet to be appointed by the
governor, and thus DARS is still operating without board oversight more
than six months after its creation. The lack of board oversight is
significant because the statutory authority of DARS and its Council
must be reformulated from the prior state statutes governing the
several agencies from which DARS was formed, minus functions which in
the future will be shared with other HHSC agencies. More importantly,
this means that DARS-DDS is also operating without board oversight.
This is an important factor in managing an agency with a long history
of claimant due process and equal protection problems.
As of October, 2004, the new DARS-DDS--now seven months old--is
being operated by Mary Sconci-Wolfe, a former TRC manager, under the
direction of DARS Commissioner Terrell I. Murphy (previously of head of
the Texas Commission for the Blind). DARS operates under the direction
of the newly appointed Texas HHSC Deputy Executive Commissioner for
Social Services Anne Heiligenstein, and HHSC Executive Commissioner
Albert Hawkins, who has presided over the Texas HHSC reorganization,
without board oversight by the proposed Assistive and Rehabilitative
Services Council, and with an incomplete statutory mandate.
In short, TRC, its Commissioner, and its Board have been dissolved,
and with it accountability for the operation of the DDS agency has been
compromised, yet it would appear that the Texas DDS agency continues to
operate much as before.
II. TRC-DDS and SSA Region VI Policy: Backlogs, Waiting Lists, and
``Fake Examiners'':
In order to better understand this history, I recently obtained
under the Texas Public Information Act the official approved minutes of
the TRC Board meeting of September 20, 2001, which was held at DDS less
than 2 weeks after the Houston Chronicle published a photocopy of an
internal TRC email assigning passwords for computer accounts for 25
``fake'' names of ``overtime'' examiners.
The TRC Board was a volunteer oversight board which nominally had
six members. The newly appointed Chairman A. Kent Waldrep presided at
the meeting, his predecessor having been named to the HHS Board leaving
a vacancy. Board member Doyle was absent. The Commissioner of TRC, who
normally attends, and TRC Medical Director did not attend, while the
Associate Commissioner for Human Resources had recently ``terminated
his employment with TRC to relocate out of state.''
The four attending members of the TRC Board heard Social Security
Administration Region VI Commissioner Horace Dickerson give ``an update
on SSA's review of TRC.'' The highlighted sections of the discussion
below are quoted directly from the official minutes:
``Commissioner Dickerson stated that over the last two and a half
years, SSA has not been able to provide all the funding needed by DDSs
to process all of the claims that they have received. He acknowledged
that this has resulted in backlogs this fiscal year across the nation,
as well as in Texas. He stated that the $83 million in funding to Texas
DDS this fiscal year will allow it to process about 230,000 claims.''
[Thus, SSA Region VI Commissioner Dickerson admitted to the TRC
Board that the cause of the processing backlogs at TRC-DDS during 1999-
2001, which precipitated subsequent problems, was lack of funding of
DDS disability determinations by SSA. Notably, the cost of DDS
disability determination is only about 2-3% of total disability program
costs.]
``. . . He pointed out that Texas DDS has been recognized
nationally as one of the best DDSs in the country. He also noted that
in May 2001, Texas DDS received a Commissioner's Citation, which is the
highest honor that the Commissioner of SSA can bestow on a DDS, and
this was based on their outstanding performance.''
[Notably, Larry G. Massanari was Acting Commissioner of Social
Security from March to November 2001, and this award was given the year
after TRC-DDS had posted the lowest ``initial approval rate'' in the
nation, while it had a backlog of about 3 months claims, just 4 months
before the ``fake examiner'' scandal broke--a situation which was
stated to exist for about a ``year''.]
Allowance Rate. He explained that allowance rates do not measure
the quality of DDS decisions, rather they reflect the number of people
who apply, as well as the type and severity of the disabilities alleged
by applicants. He revealed that one out of every thirty-five Texans
receive a disability check under the Social Security program. He
addressed the Chronicle's comparison of Texas' allowance rate to that
of New Hampshire. He explained that New Hampshire also has one in
thirty-five ratio, so the comparison is not a valid comparison.
Commissioner Dickerson also noted that last year, SSA published new
rules for evaluating mental impairments, which were expected to
increase the allowance rate. Beginning in September, the allowance rate
for Texas DDS increased significantly and, except for a few months
early in this calendar year, the initial allowance rate in Texas
paralleled that of the national average.''
[In fact, the population ratio of persons on Social Security
disability reflects determinations made over many years, whereas the
determinations in 2000 in Texas were lower than in previous years, and
increased after the rate became a controversial political issue. It may
also be that, due to the use of manual labor in agriculture and hazards
in the oil industry, there are more people disabled on a per-capita
basis in Texas than in New Hampshire.]
Overtime. He explained that earlier in the year, the Dallas Region,
including Texas, recognized that the Region did not receive its
appropriate share of the national Disability Determination funding. As
a result of input by the Dallas Region, SSA increased the spending
authorizations for Texas twice this calendar year. He pointed out that
Texas DDS has escalated its hiring plans, has added over eighty DEs and
over eighty adjudicators, and has implemented an overtime plan to
reduce backlogs.
Commissioner Dickerson stated that, contrary to the media reports,
SSA was aware of DDS' overtime plan and remarked that the practices
used by Texas DDS are neither unusual nor improper. These are internal
tracking measures used to track the processing of work. He stated that
SSA has no requirements that DDS identify examiners on correspondence
to claimants or attorneys. He noted that some states choose not to
include examiners' names on correspondence, primarily for security
reasons.
In conclusion, Commissioner Dickerson stated that SSA recognizes
that there are problems in its Social Security Disability program. He
noted that these problems are national in scope, and, to be succinct,
there is more work than resources. This is true in Texas and the
country. He stated that Deputy Commissioner Dave Ward and his
management staff have done and continue to do what SSA thinks is a
tremendous job for SSA and for the people of Texas and that SSA [Dallas
Region] looks forward to a long association with them.
[By his testimony to the TRC Board, SSA Region VI Regional
Commissioner Horace Dickerson thus admitted SSA knowledge of, and
sanction of, the use of two tier ``overtime'' processing and ``fake
examiners'' by TRC-DDS, as described by articles in the Houston
Chronicle.]
SSA Region VI Commissioner Horace Dickerson thus sanctioned the use
of these questionable techniques by TRC-DDS by claiming, in short, that
DDS is an agent of SSA, SSA is authorized under the Social Security Act
to do whatever it wants, and he, as Regional Commissioner, therefore
authorizes their use. Given the Regional Commissioner's sanction, TRC-
DDS and SSA Region VI itself are arguably running rogue ``cowboy''
operations.
[Note that the ``fake examiner'' issue is not simply an internal
accounting tool at TRC-DDS. The effect of a claim being placed on the
``waiting list'' was that no single Disability Examiner processed it,
and thus no examiner understood the entirety of the claim, no examiner
was accountable for the outcome, that this was different than normal
claims not on this overtime plan, and that the selection criteria for
placing claims on the ``waiting list'' has not been disclosed. There
are thus major due process and equal protection issues with this
practice, impacting claimants' U.S. Constitutional and statutory
rights.]
TRC Board Members' Questions/Comments
Chairman Waldrep expressed his and the Board's appreciation for
Commissioner Dickerson's remarks.
Chairman Waldrep asked, what is your reaction to recent newspaper
articles about using coded names to assign claims on overtime?
Commissioner Dickerson explained that the methodology employed by
DDS to manage overtime is an internal process, which helps staff to
effectively manage the overtime. While it is not done at the direction
of SSA, it does occur in other DDS Social Security field offices. From
SSA's vantage point, it is not done to mislead the public or the
recipient to whom the correspondence is being sent. He again pointed
out that some states, in the interest of security, do not include a
name or even a signature block on correspondence. Commissioner
Dickerson reiterated that SSA does not have a problem with the overtime
methodology used by Texas DDS.
Board member Novy asked, when a customer calls and asks for the
name that was on the letter [DDS correspondence], how is the call
received? Is there a specific person who takes the call? Is it based on
the last name? How does this work?
Deputy Commissioner Dave Ward responded that the last name of the
DDS staff noted on the correspondence is that of the person to whom the
case is assigned. That named person or the person's designee, if he/she
is not available, takes the call. The caseload is attended and the
telephone calls are answered.
Board member Novy stated that the process, as explained by Deputy
Commissioner Ward, is acceptable as long as someone is taking calls.
She explained that she is from Houston and regrets the type of
reporting that has been done. It was unbalanced and hurtful to the good
people who are doing good work. Ms Novy expressed her appreciation to
Commissioner Dickerson for his attendance and for his comments.
Vice Chairman Wilkerson stated that State Representative Coleman
has requested a study of the DDS's procedures for determining who is
disabled, and asked if Commissioner Dickerson is aware of any issues or
any areas in which TRC-DDS does not adhere to SSA procedures?
Commissioner Dickerson responded that he is not aware of any areas
in which TRC-DDS is not adhering to SSA rules. He stated that he is
aware of the legislative directives surrounding this, but from SSA's
vantage point the DDS is adhering to all procedures. SSA is in fact
working with DDS to make sure that it is aware of the allowance rate,
initial claims, and claims that are processed in DDS. SSA plans to be
very vigilant in providing information to DDS so that it can share the
information with the Board and with others relating to the allowance
rate at the appeals level at Social Security to ensure that a full
picture is in place.
Board member Stribling asked, if any differences were attributable
to interpretation or whether interpretations were standardized?
Commissioner Dickerson stated that the rules are standard, but
there is a great deal of room for interpretation. SSA is working to
streamline the process and refine the rules so that there will be
uniformity in terms of interpreting what is done at SSA, and in making
the disability decisions. He explained that they are not yet where they
need to be, but they are working closely with their Administrative Law
Judges (ALJ), the DDSs, and all of those who make decisions on
disability claims to ensure that all are following the same rules and
can arrive at the same place and make the right decision.
[This statement must be considered in the light of the quote in the
Houston Chronicle of SSA Region VI Spokesman Wesley Davis saying in
June 2001 that Texas disability examiners ``reach different conclusions
on cases that require certain judgments to be made on an individual's
capacity to work''. Note that SSA Region VI Commissioner does not deny
that there are such differences.]
Acting Commissioner Mary Wolfe stated that Texas DDS' accuracy
rating should speak to this issue as SSA examines the accuracy of the
case work that is being done.
Commissioner Dickerson agreed with Ms. Wolfe's statement. He
further stated than not only is SSA very diligent at looking at the
accuracy, it also wants to make sure that those who apply for and are
entitled to benefits receive benefits, as well as making sure that
those who do not meet the requirements do not receive benefits. To
ensure accuracy, DDS has internal procedures to review the work that is
produced. Additionally, there are pre-effectuation reviews, which are
conducted before the decision is effectuated to ensure that decisions
are in compliance with SSA rules. He reported that Texas DDS has the
highest accuracy rate among the large states and in comparison with all
other states, it has a very good rate of accuracy in production.
Chairman Waldrep thanked Commissioner Dickerson for his attendance
and for the partnership that TRC has shared with SSA in carrying out
the job of serving people with disabilities in Texas. He attributed
Commissioner Dickerson's leadership as making the difference in that
partnership and stated that the Board/TRC is grateful to have him in
that position.
Commissioner Dickerson stated that he appreciates the support that
SSA has long received from TRC. He also expressed his appreciation for
the leadership of Chairman Waldrep and Dave Ward and his management
team, his medical consultants, and all the adjudicators, of whom Texas
should be proud for the way in which they daily perform their duties
and responsibilities.
Chairman Waldrep stated he is very proud of DDS and all of the men
and women who work hard every day to ensure that people in the state
who have disabilities and who are eligible and deserve benefits receive
benefits. He stated that he was disappointed in the Houston Chronicle
and its reporting on DDS, which misleads the public into thinking that
the agency is not doing its job. He requested that elected officials
work in partnership with the agency, as Commissioner Dickerson and his
office does, to ensure that DDS/TRC does its job. He stated TRC is not
perfect but the history, facts, and figures conveyed by Commissioner
Dickerson back up the agency's pride in trying to be the very best in
delivering services to the state. He stated that it is very
discouraging when someone prints non-truths. Chairman Waldrep stated
that he has met with the Governor's Office and TRC has his full
support.
Chairman Waldrep stated if anyone has an issue with this agency or
any other agency, please go to the agency first and work with the
agency to find out the facts.
Chairman Waldrep stated that he intends to write a letter to the
editor of the Houston Chronicle and informed Commissioner Dickerson
that he and his office have TRC's full cooperation and support.
III. TRC-DDS and SSA Region VI Policies versus SSA National Program
Standards:
The TRC Board meeting of September 20, 2001 meeting was chaired by
Mr. A. Kent Waldrep, author of the book ``Fourth and Long: The Kent
Waldrep Story'', who had incurred a spinal cord injury while playing
football in college, is wheelchair-bound, had been on the TRC Board
since 1990, but had just been appointed as TRC Board Chairman by the
Governor. This was Mr. Waldrep's first meeting as Chairman. His
predecessor of 15 years had recently resigned to accept an appointment
to the HHS board by the Governor just as the 2000 ``initial approval
rate'' scandal broke at DDS. TRC Board members including the Chairman
were volunteers, and had limited authority, acting only to direct the
Commissioner--represented in this meeting by Acting Commissioner Mary
Sconci-Wolfe. The absence of the TRC Commissioner, who had held that
position for 20 years, and the TRC Medical Director from the meeting,
during this controversial period is notable. Mr. Waldrep's experience
with DDS was in fact quite limited, in that as late as the prior
quarterly meeting he demonstrated a lack of understanding of the basic
fact that DDS is fully a federally funded agency that brings money into
the state rather than a state funded assistance program that takes
money out of the state budget. Some might wonder if such Chairmanship
of the Board in the midst of this crisis might deflect criticism from
the Board's management of the agency. The effect of the letters that
Mr. Waldrep speaks of writing in this passage in order to try to
publicly justify TRC-DDS's position and to create harmony may be found
in the Houston Chronicle on October 14, 2001 A.39 and October 17, 2001
p28.
The absence of senior TRC officials, and the effusive mutual praise
lavished among the participants upon each other in the discussion of
DDS operations, must both be considered in light of the seriousness of
the charges that had been made. The Houston Chronicle had published
copies of forged signatures by DDS examiners less than two weeks
before, supporting a presumption of 12,000 counts of document fraud and
Fourteenth Amendment violations of due process and equal protection of
the laws by state TRC-DDS managers against Texas Social Security
disability claimants. These are acts which may arguably include civil
liability under 42 U.S.C. 1985 ``Conspiracy to interfere with civil
rights'' and 42 U.S.C. 1986 ``Action for neglect to prevent'', not to
mention criminal civil rights violations under 18 U.S.C. Part I Chapter
13, including conspiracy, against both DDS and TRC, and Fifth Amendment
due process and statutory equal protection violations by SSA Region VI
officials and their managers.
Should there be any question whether these policies were in fact
sanctioned by SSA, including 1) failure by SSA to properly fund the
Texas DDS operation, 2) the use of two tier ``overtime processing''
(unequal treatment), and 3) ``fake examiners'' (document fraud and due
process violations), 4) a bias against chemical injury claims, and 5)
state disability determination standards ``different'' than in the rest
of the nation, one need only observe that Social Security Region VI
Commissioner Horace Dickerson--who stood before the TRC Board to admit
the failure of SSA to adequately fund TRC-DDS determinations and to
justify the use of ``overtime processing'' and ``fake examiners'', and
Region VI Spokesman Wesley Davis, who admitted a bias against chemical
injuries and ``different'' determination standards in Texas as compared
to other states to a Houston Chronicle reporter, still hold those
positions at SSA Region VI as of October, 2004, more than 3 years after
the events described above occurred.
The references to the high ``accuracy'' of TRC-DDS disability
determinations must be considered in the context of the limited
opportunity for appeal above the ALJ level or for judicial review in
the SSA disability process, particularly for Pro Se claimants in
Federal District Courts (FDC) of Texas. The SSA Region VI Commissioner
backed the policies of TRC-DDS, which may include policies admitted by
Regional Spokesman Wesley Davis in June 2001 to be ``different'' than
in other states, so a significant number of reversals by Region VI
ALJ's acting under the direction of the Region VI Chief ALJ in Dallas
would not be expected. The suit by ALJ Christopher Lee Williams might
be seen as an example of this--not even a Dallas ALJ could challenge
the TRC-DDS policy denying Consultative Examinations to indigent
claimants in April 2001. ALJ denials may be appealed to the SSA Appeals
Council (AC) in Falls Church, VA, however, as of 1995, the AC remanded
cases back to the ALJ in about 24% of AC appeals nationally, and
reversed decisions in only about 3% of appeals--about 1,600 SSDI and
SSI reversals in 1995. In 1995 only about 680 claims were reversed in
FDC reviews nationally.
IV. TRC-DDS Allowed Reimbursement Rates for Consultative Examinations
in Excess of SSA Rates for Selected Hospitals; SSA Region VI
Did Not Manage DDS Appropriately:
Recently, the SSA Office of Inspector General audited $247,350,859
in administrative costs that TRC reported for TX-DDS operations for the
period October 1, 1998 through September 30, 2001, including the rates
that Texas DDS reimbursed hospitals for Consultative Examinations
(CE's), some of which were in excess of the Maximum Allowable Payment
Schedule (MAPS)--although they were equal to that used in the TRC
Vocational Rehabilitation program, and the management of these rates by
SSA Region VI officials. (Office of the Inspector General, Social
Security Administration, ``The Administrative Costs Claimed by the
Texas Disability Determination Services, March 2004 A-15-02-12051 Audit
Report'') The SSA OIG concluded, in summary, that TRC-DDS paid selected
hospitals more than allowed by SSA for CE's, and that TRC-DDS felt that
they had been authorized by SSA Region VI to do so, but the OIG found
no records of such an authorization.
``We attempted to find out if any special waiver or privilege was
provided to hospitals with RCCs. According to the SSA Dallas RO, the
RCC rates were implemented a number of years ago when different SSA and
DDS employees were involved in overseeing these issues. The validity of
their use had never been discussed. . . .''
''We believe that the RCC is not a part of the TX-DDS fee schedule.
The SSA Regional Office and TX-DDS disagreed with us. We believe that
SSA needs to obtain a formal determination from its Office of General
Counsel to resolve this issue. We believe that SSA should recover the
payments in excess of MAPS unless the Office of General Counsel makes a
formal determination that the RCC is part of TX-DDS' official fee
schedule.'' . . .
``We compared the amount that was authorized to be paid under MAPS
to the amount actually paid the hospital using an RCC. We found of the
52,692 records paid using RCC, 49,071 exceeded MAPS. The amount paid to
hospital providers exceeded the MAPS allowed amount by $3,611,678. . .
.''
``Indirect costs for TX-DDS are determined under a negotiated
annual indirect cost rate agreement. The TX DDS computes its indirect
costs by multiplying the approved percentage rate to the direct costs
of the TX-DDS. Some direct costs, such as, (capital) equipment,
building alterations, and renovations are not to be included as part of
the base. The annual indirect cost rate is for a State FY (September
1st through August 31st). CE costs are included in the base for the
computation of indirect costs. . . .''
``We believe the SSA Regional Commissioner should instruct the TX-
DDS to conform to the POMS by adhering to MAPS, the authorized fee
schedule, for paying hospital provider CEs. Lastly, the RO should more
closely monitor TX-DDS fees paid for CEs. . . .''
``As a result of our audit, we recommend that:
1. SSA require that TRC adhere to POMS DI 39545.210, 1.a.,
requiring CE payment amounts not to exceed the authorized fee schedule
and specifically, discontinue selectively paying Texas hospitals higher
amounts than the approved fee schedule.
2. TRC, pending the SSA Office of General Counsel's determination,
reimburse SSA $3,611,679, resulting from CE payments in excess of the
authorized fee schedule known as MAPS. The TX-DDS should adjust their
financial reports, Forms SSA-4513, accordingly.
3. TRC, pending the SSA Office of General Counsel's determination,
reimburse SSA $359,515 for indirect costs paid as a result of the
overstated direct cost base (CEs in excess of MAPS.) The TX-DDS should
adjust the financial reports, Forms SSA-4513, accordingly.
4. SSA's Dallas RO more closely monitor the fees paid by TRC for
CEs.
5. SSA seek a legal opinion as to whether the use of the RCC
method, which allows the TX-DDS to pay hospital providers a percentage
of their normal customary billing amount for CEs, constitutes a fee
schedule in accordance with POMS and Federal regulations. SSA should
then establish a clear policy on contracts with CE vendors and ensure
that policy is implemented consistently across the DDSs. (This is a new
recommendation added to our final report which was not included in the
draft report provided to SSA and TRC for comments.)''
``. . . For Recommendations 2 and 3, both SSA and TRC disagreed
with reimbursing the excess funds drawn by the DDS. In SSA's response,
the Regional Commissioner stated it is difficult to know what happened
in the past since the staff making earlier decisions are no longer
overseeing DDS operations and may have discussed the TX DDS' RCC
method. TRC indicated that before the RCC method was established,
extensive research, study, and vendor negotiations were undertaken to
arrive at rates that would assure clients received quality medical
services at the best price. SSA's comments, in and of themselves, do
not provide sufficient evidence of whether the Regional Commissioner or
his staff gave explicit or implicit approval of the TX-DDS' use of the
RCC methodology. . . .''
``With respect to our recommendations that SSA seek reimbursement,
the Regional Commissioner continues to request that these
recommendations be removed, or at least deferred until the legal issues
have been resolved.''
Notably, the above policies were undoubtedly effected during the 22
year tenure of TRC Commissioner Vernon Arrell 1981-2003, and at least
continued under the tenure of TRC Deputy Commissioner for DDS Dave Ward
1996-2002. This clearly indicates that TRC-DDS engaged in purchasing
expenditures in violation of SSA national program standards during
1998-2001, SSA Region VI did not either enforce the SSA standards or
provide a waiver, and that Region VI and TRC-DDS have placed the blame
on former managers and asked that reimbursement be waived. Note,
however, that the overpayment to selected hospitals by DDS occurred
even while DDS refused to do CE's on indigent claimants whose claims
were remanded to DDS by ALJ Christopher Lee Williams, and thus
claimants' rights to due process may have been affected.
SSA Region VI Commissioner thus sanctioned after-the-fact the
excess payments by TRC-DDS to selected hospitals performing CE's in
violation of SSA national program standards, against the opinion of the
SSA Office of Inspector General, despite the fact that other claimants
at the time were denied CE's, thus arguably denying them their U.S.
Constitutional and statutory rights to due process and equal protection
of the laws. A review of operations 1998-2002 thus shows that SSA
Region VI and TRC-DDS were rogue ``cowboy'' operations that failed to
enforce claimants rights to due process and equal protection of the
laws in accordance with SSA national program standards.
V. Summary:
The failure of SSA to adequately fund TRC-DDS to do disability
determinations during 1999-2001 has been admitted by SSA Region VI
Commissioner Horace Dickerson. (Testimony to TRC Board, minutes 9/20/
01.) An SSA OIG Audit has shown that TRC-DDS overpaid certain medical
providers for Consultative Examinations during 1998-2001. (``March 2004
A-15-02-12051 Audit Report'') This occurred even while indigent
claimants were denied CE's in 2001. SSA Region VI Commissioner argued
against repayment. The use of two-tier ``waiting list'' (unequal
treatment) processing and ``fake examiners'' (document fraud) by TRC-
DDS was also sanctioned by SSA Region VI Commissioner Horace Dickerson,
who still holds that position. (Testimony to TRC Board, minutes 9/20/
01.)
A bias against chemical injury claims, e.g. of workers disabled
``in the oil industry and elsewhere'' who ``commonly get injured on the
job'' but are not considered totally disabled by TRC-DDS was admitted
in March 2001, as was the fact that Texas disability examiners ``reach
different conclusions'' than those in other states was admitted in June
2001, by SSA Region VI Spokesman Wesley Davis, who still holds that
position. (Houston Chronicle 3-11-01 A.1, 6-10-01 A.8.)
SSA Region VI and Texas DDS have demonstrated a willingness to
compromise claimant rights to due process and equal protection of the
laws in order to meet budgetary targets and engage in improper bias.
Several tens of thousands of Social Security disability claims were
denied as a result, with a fiscal impact on the disabled of on the
order of several hundred million dollars during that era. According to
the OIG, $3.6 million was spent improperlybetween 1998 and 2001 due to
lack of oversight of TRC-DDS by SSA Region VI. It is thus clear that
TRC-DDS and SSA Region VI during this era were rogue ``cowboy''
operations. Such injustice demands timely remedy.