[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
SOCIAL SECURITY'S IMPROVED
DISABILITY DETERMINATION PROCESS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SOCIAL SECURITY
of the
COMMITTEE ON WAYS AND MEANS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 15, 2006
__________
Serial No. 109-81
__________
Printed for the use of the Committee on Ways and Means
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30-449 PDF WASHINGTON : 2006
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COMMITTEE ON WAYS AND MEANS
BILL THOMAS, California, Chairman
E. CLAY SHAW, JR., Florida CHARLES B. RANGEL, New York
NANCY L. JOHNSON, Connecticut FORTNEY PETE STARK, California
WALLY HERGER, California SANDER M. LEVIN, Michigan
JIM MCCRERY, Louisiana BENJAMIN L. CARDIN, Maryland
DAVE CAMP, Michigan JIM MCDERMOTT, Washington
JIM RAMSTAD, Minnesota JOHN LEWIS, Georgia
JIM NUSSLE, Iowa RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas MICHAEL R. MCNULTY, New York
PHIL ENGLISH, Pennsylvania WILLIAM J. JEFFERSON, Louisiana
J.D. HAYWORTH, Arizona JOHN S. TANNER, Tennessee
JERRY WELLER, Illinois XAVIER BECERRA, California
KENNY C. HULSHOF, Missouri LLOYD DOGGETT, Texas
RON LEWIS, Kentucky EARL POMEROY, North Dakota
MARK FOLEY, Florida STEPHANIE TUBBS JONES, Ohio
KEVIN BRADY, Texas MIKE THOMPSON, California
THOMAS M. REYNOLDS, New York JOHN B. LARSON, Connecticut
PAUL RYAN, Wisconsin RAHM EMANUEL, Illinois
ERIC CANTOR, Virginia
JOHN LINDER, Georgia
BOB BEAUPREZ, Colorado
MELISSA A. HART, Pennsylvania
CHRIS CHOCOLA, Indiana
DEVIN NUNES, California
Allison H. Giles, Chief of Staff
Janice Mays, Minority Chief Counsel
______
SUBCOMMITTEE ON SOCIAL SECURITY
JIM MCCRERY, Louisiana, Chairman
E. CLAY SHAW JR., Florida SANDER M. LEVIN, Michigan
SAM JOHNSON, Texas EARL POMEROY, North Dakota
J.D. HAYWORTH, Arizona XAVIER BECERRA, California
KENNY C. HULSHOF, Missouri STEPHANIE TUBBS JONES, Ohio
RON LEWIS, Kentucky RICHARD E. NEAL, Massachusetts
KEVIN BRADY, Texas
PAUL RYAN, Wisconsin
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
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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 June 7, 2006 announcing the hearing.................. 2
WITNESSES
Social Security Administration, Hon. Jo Anne B. Barnhart,
Commissioner................................................... 5
______
Association of Administrative Law Judges, Inc., Judge Ronald G.
Bernoski....................................................... 77
Consortium for Citizens with Disabilities, Marty Ford............ 44
Federal Bar Association, Gary Flack.............................. 81
National Council of Social Security Field Operations Locals,
Wiltold Skwierczynski.......................................... 62
National Organization of Social Security Claimants'
Representatives, Sarah H. Bohr................................. 52
National Treasury Employees Union, James Hill.................... 70
U.S. Government Accountability Office, Robert E. Robertson,
Director, Education, Workforce, and Income Security Issues..... 28
SUBMISSIONS FOR THE RECORD
Social Security Disability Coalition, Rochester, NY, Linda
Fullerton, statement........................................... 91
Tucker, Earl, statement.......................................... 104
Union of American Physicians and Dentists, Richard C. Dann,
statement...................................................... 107
SOCIAL SECURITY'S IMPROVED
DISABILITY DETERMINATION PROCESS
----------
THURSDAY, JUNE 15, 2006
U.S. House of Representatives,
Committee on Ways and Means,
Subcommittee on Social Security,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:04 a.m., in
room B-318, Rayburn House Office Building, Hon. Jim McCrery
(Chairman of the Subcommittee) presiding.
[The advisory announcing the hearing follows:]
ADVISORY
FROM THE
COMMITTEE
ON WAYS
AND
MEANS
SUBCOMMITTEE ON SOCIAL SECURITY
CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
June 07, 2006
No. SS-16
McCrery Announces Hearing on Social Security's
Improved Disability Determination Process
Congressman Jim McCrery, (R-LA), Chairman, Subcommittee on Social
Security of the Committee on Ways and Means, today announced that the
Subcommittee will hold a hearing on the Social Security Administration
(SSA)'s improved disability determination process. The hearing will
take place on Thursday, June 15, 2006, in room B-318 Rayburn House
Office Building, beginning at 11:00 a.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 Committee and for
inclusion in the printed record of the hearing.
BACKGROUND:
The SSA administers two Federal disability programs: Disability
Insurance (DI), and Supplemental Security Income (SSI). The DI program
provides benefits to disabled workers and their families based on
previous employment covered by Social Security, and is funded primarily
with Social Security payroll taxes. The SSI program is a means-tested
income assistance program funded with general revenues.
Workloads from these two programs have placed increasing demands on
the agency. The DI and SSI applications to Federally-funded State
Disability Determination Service agencies for a decision have increased
22 percent over the past five years, from 2.1 million in Fiscal Year
(FY) 2000 to 2.55 million in FY 2005. Despite the increased workloads,
the SSA has increased its productivity by 12.6 percent since 2001.
However, the rapid rise in applications, coupled with budgetary
constraints, have resulted in longer processing times for cases heard
by Administrative Law Judges--from 415 days in FY 2005 to 477 days in
April 2006. The number of hearing requests waiting for a decision has
increased from about 708,000 in FY 2005 to 727,629 in April 2006, and
the Agency expects this number to rise to 767,000 in FY 2007.
The Commissioner of Social Security, Jo Anne B. Barnhart, undertook
a comprehensive initiative to evaluate and implement substantive
process reforms to the disability determination process. These process
improvements are built upon the SSA's new electronic disability folder
system, which is being implemented on a phased-in basis. As the
Commissioner has stated in previous testimony, her goal for the reforms
has been to have the right decision made as early as possible in the
process.
The Subcommittee has closely monitored the progress of this
initiative since the Commissioner announced her intent to move forward
at a Subcommittee hearing in September 2003. After extensive
consultation with key stakeholders, including two Subcommittee
hearings, the SSA published its final rule on March 31, 2006. The final
rule will be phased in beginning August 1, 2006. In sum, the Disability
Service Improvement rule (DSI) requires quick decisions (in 20 days or
less) for individuals with clear-cut disabilities; improves medical and
vocational expert access and qualifications; and creates a new
position, the Federal Reviewing Official, to review State agency
determinations upon the request of the claimant. The reconsideration
step of the current appeals process is eliminated. The DSI also
implements a new quality assurance process at every decision-making
level. A description of the key components of the final rule may be
found on the SSA's website at: http://www.ssa.gov/disability-new-
approach/.
In announcing the hearing, Chairman McCrery stated, ``I commend the
Commissioner of Social Security and the dedicated employees of the
Agency for initiating service improvements to the disability
determination process. Now the hard work of implementation begins. I
look forward to learning how the public's comments were incorporated
into the final regulation and hearing how best to transform the
regulation into action.''
FOCUS OF THE HEARING:
The Subcommittee will examine the SSA's final regulation, including
how the Agency addressed public comments in developing its final rule
and how implementation will proceed.
DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:
Please Note: Any person(s) and/or organization(s) wishing to submit
for the hearing record must follow the appropriate link on the hearing
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for which you would like to submit, and click on the link entitled,
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June 29, 2006. Finally, please note that due to the change in House
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FORMATTING REQUIREMENTS:
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3. All submissions must include a list of all clients, persons,
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Note: All Committee advisories and news releases are available on
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The Committee seeks to make its facilities accessible to persons
with disabilities. If you are in need of special accommodations, please
call 202-225-1721 or 202-226-3411 TTD/TTY in advance of the event (four
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materials in alternative formats) may be directed to the Committee as
noted above.
Chairman MCCRERY. The hearing will come to order. Good
morning.
Welcome, everyone, to our hearing on the Social Security
Administration's (SSA) improved disability determination
process.
We last focused on these issues at a joint hearing in
September where Members of both this Subcommittee along with
the Human Resources Subcommittee provided their feedback to the
Commissioner regarding the proposed rule to improve the
disability determination and appeals process.
Members from both sides of the aisle praised the
Commissioner and the employees of the SSA for their continued,
focused, and collaborative efforts to improve service delivery
to those with disabilities.
Concerns were also raised, though, that the proposed
changes to the system could make what is currently a non-
adversarial administrative process into one that is more
legalistic and burdensome for very vulnerable claimants.
In March of this year, another milestone was achieved when
the final rule was published, but perhaps the most important
milestone is just a few weeks away, when the Agency begins
implementing the rule on August 1st in the Boston region. Then
we will start determining whether the changes achieve the
desired effect, enabling the right decision to be made as early
as possible in the process.
As implementation moves forward, we all know the stakes are
high, as disability benefits provide a crucial safety net for
those most in need.
Commissioner Barnhart has said she is committed to making
sure that the implementation proceeds carefully so that all
claims are handled fairly and responsibly.
Today, we will learn how the Commissioner and her staff
plan to carry out that commitment.
Following the Commissioner, our second panel will provide
their views on the implementation and what we and the
Commissioner need to be mindful of as the reforms proceed and
expand beyond the Boston region.
Mr. Levin, would you like to make an opening statement?
Mr. LEVIN. Thank you very much, and I'm really very, very
glad we're having this hearing.
You mentioned the importance of this matter for our
society, the importance of this program for the disabled. This
affects all of us.
I'm glad that we're having the Commissioner here and a
broad range of people and viewpoints on the panel. I don't
think we have anything to fear from a diversity of points of
view.
In fact, I think we have a lot to gain from it, and
hopefully it will all meld into an improved program, Disability
Service Improvement (DSI).
Obviously, no regulation can spell out all the details and
anticipate every circumstance, no matter how well they're put
together, and the implementation obviously can make or break an
initiative like this one.
I think there was widespread feeling about the importance
of improving the disability process. I think we would all
agree.
When we look back at the work of our offices, many, many
times our offices, especially at home, were contacted because
of issues relating to disability, and we know that changes were
necessary. We also thought that some aspects of the proposed
regulation had some real potential, but there were concerns of
others.
So, people got their heads together, and not always
together, but in the same room, to talk about this, and we
appreciate the effort of you, the Commissioner, and everybody
who is here today.
We also appreciate the important role that SSA employees
and beneficiary representatives have played in helping to
understand this regulation and the challenges ahead, and if I
might just add briefly, I think that we very much agree that we
need in the Congress to do our part to make sure there's
adequate funding, because no matter how well a regulation is
put together or its implementation is brought about, there's
going to have to be adequate funding.
We're going today to go into the details of the regulation.
One last word. An essential part of implementation is careful
monitoring, and I understand, Commissioner, that you're going
to track the results to assure that disability claimants are
not harmed, but indeed their needs are looked after, and that
there are no unintended results occurring from this and that
the changes are going to have the desired effect. I'm sure that
you are going to have--continue to have--excellent oversight
that you have made sure happens.
We look forward to your testimony, and then the testimony
of seven or eight--six or seven--people who are going to join
us.
Chairman MCCRERY. Thank you, Mr. Levin.
Any other Members wishing to make an opening statement may
present those in writing and they'll be included in the record.
We do have a rather full second panel, so let's proceed
with Commissioner Barnhart. Welcome once again, and thank you
again for the work you've done on this subject and for
listening to our concerns throughout the rulemaking process.
You may summarize your remarks in about 5 minutes, and then
if you would, take our questions.
You may proceed.
STATEMENT OF THE HONORABLE JO ANNE B. BARNHART, COMMISSIONER OF
SOCIAL SECURITY, SOCIAL SECURITY ADMINISTRATION
Ms. BARNHART. Thank you, Mr. Chairman, Mr. Levin, and
Members of the Subcommittee.
I'm always pleased to appear before you, but today I'm
especially happy to be here, because I'm here to report that
after 3 years of incredible effort and cooperation, our new
disability determination process is a reality.
For the first time in 50 years, we're making significant
changes to the SSA's disability determination process, changes
that substantially increase our ability to make accurate
decisions in a timely way, and that means better service to the
American people.
My written statement outlines the elements of the new
process and goes into it in a great bit of detail, but in the
interests of time, I'm going to concentrate on how we got to
this point.
As you know, it has been a long journey, and this
Subcommittee has played an important role in this achievement.
So, have many others within and outside SSA, and I want to
thank you and everyone who participated, many of them here in
this room, from the bottom of my heart.
I'm sure you know that there were people who told us that
it would be impossible to make major comprehensive changes to
the disability determination process, but we have done it, and
we have succeeded because groups involved at every step in the
disability process came together in a spirit of cooperation and
professionalism.
Throughout this process, there was no finer example of that
spirit than Eileen Sweeney. Sadly, Eileen passed away just a
few days ago.
As this Committee well knows, Eileen was a tireless and
talented advocate for America's most vulnerable, and we will
all miss her insight, her expertise, and most of all, her
humanity.
When I announced my new approach, I began a massive
outreach effort to obtain and give thoughtful consideration to
all comments on the current disability system and on our
proposed improvements. I've acted upon my commitment to listen
to you, to the interested parties and groups in both the
government and the private sectors, and to the claimants and
beneficiaries who rely on us to provide the best possible
service.
During the official comment period on the Notice of
Proposed Rulemaking (NPRM) alone, we received almost 900
comments, 883 to be precise. At the hearing last September on
the proposed rule, Members of this Committee urged me to
carefully consider the issues that were raised and the
comments.
I want you to know, Mr. Chairman, that I personally read
many of the comments in full myself, and I worked with my
senior staff to review and discuss all of the comments.
We listened and we made changes in response. As a result, I
believe the disability determination process that we will be
implementing in our Boston Region on August 1st is both
different and better than the original blueprint that I
discussed with you on July 24, 2003, and the process that was
outlined in the NPRM last July.
We were aware that many commenters perceived our proposed
rule as favoring administrative efficiency over fairness,
especially with regard to timeframes for submitting evidence
before a hearing. When I testified last fall, this Subcommittee
articulated those same concerns, as the Chairman pointed out.
I want to assure you that that was not our intent. I trust
that was made clear by the substantive changes that we made in
the final regulation.
Specifically, we addressed the concerns about giving
claimants sufficient time to submit evidence in three ways.
First, we give claimants at least 75 days notice before a
hearing instead of the 45 days provided for in the NPRM.
Second, the final rule allows claimants to submit evidence
up to five business days before the hearing instead of the 20
days in the proposed rule.
Finally, we expanded the range of circumstances in which an
administrative law judge (ALJ) will accept evidence that does
not meet the five-day deadline.
Mr. Chairman, as I look back over the long road to the
changes that we will begin implementing in just a few weeks,
and I reflect on the spirit of cooperation, professionalism,
and dedication to serving the public that has really permeated
this entire process and been demonstrated by the men and women
of Social Security, our Disability Determination Service (DDS)
agencies, advocacy groups, and Members of Congress, I'm
absolutely convinced we can make this happen. I am also
convinced that the American public will benefit greatly.
I assure you that we will continue the dialog that has
served this process so well, because this is not just about
getting it done, it's about getting it done right.
You have my assurance that we're doing all that we can to
make sure that we implement in an orderly and timely manner. In
typical fashion, the hardworking men and women of SSA and our
DDSs have pulled together and they're doing everything that
must be done for us to move forward.
In closing, I want to publicly thank you again for your
advice, insight, and support that have meant a great deal to
the Agency and to me personally. I know that we can count on
your continued support and advice as we make DSI a reality.
Thank you, Mr. Chairman. I'll be happy to try and answer
any questions that the Members might have.
[The prepared statement of Ms. Barnhart follows:]
Statement of The Honorable Jo Anne B. Barnhart, Commissioner, Social
Security Administration
Mr. Chairman, Mr. Levin, and Members of the Subcommittee,
I am always delighted to appear before you, but today I am
especially pleased to be here. Today, I am here to report that, after
three years of incredible effort and cooperation, our new disability
determination process is a reality. For the first time in 50 years, we
are making significant changes to the Social Security Administration's
(SSA) disability determination process--changes that substantially
increase our ability to make accurate disability decisions in a timely
way. And that means better service to the American public.
I will outline the elements in the new process in a few moments,
but first I want to take this opportunity to talk about how we got to
this point. It has been a long journey, and the members of this
subcommittee have shared with me the journey toward this achievement.
And so have many others within and outside SSA. And I want to thank you
and everyone who participated from the bottom of my heart.
When I became Commissioner in 2001, I said that I did not take this
job to manage the status quo, and nowhere was the need for change more
clear than in the disability process. I'm sure you know that there were
people who told us that it would be impossible to make major,
comprehensive changes to the disability determination process. But we
have, and we have succeeded because groups involved at every step in
the disability process came together in a spirit of cooperation and
professionalism. We succeeded because of that spirit of cooperation,
openness, and constructive dialogue that I have seen in the
conversations we've had with people involved at every stage of the
process.
As you know, when I announced my new approach, I began a massive
outreach effort to obtain and give thoughtful consideration to all
comments on the current disability system and on our proposed
improvements. I have acted upon my commitment to listen to you, to the
interested parties and groups in both the government and private
sector, and to the claimants and beneficiaries who rely on us to
provide the best possible service.
I personally participated in more than 100 meetings with more than
60 groups involved in the disability process--inside and outside of
SSA. My staff conducted even more meetings and we received more than
1000 comments and recommendations over the Internet alone. I was very
impressed with the spirit of cooperation and professionalism that these
groups brought to our discussion.
When we published the proposed rule, I did not expect agreement on
every element of the approach outlined in the NPRM. However, I hoped
for--and got--a continuation of the same spirit that we saw in the
initial outreach period.
During the comment period, SSA received almost 900 comments. At the
hearing last September on the NPRM, members of this Subcommittee urged
me to consider carefully the issues that were being raised in the
comments. I want you to know that I personally read many of these
comments in full and worked with my senior staff to review and discuss
all of them.
We listened and made changes in response. The disability
determination process that we will begin implementing in our Boston
Region on August 1 is both different and better than the original
blueprint I first discussed with you on July 24, 2003, and the process
outlined in the Notice of Proposed Rulemaking we published in July
2005.
In drafting the final rule, we were aware that many commenters
perceived our proposed rule as favoring administrative efficiency over
fairness--especially in regard to timeframes for submitting evidence
before a hearing. When I testified before this Subcommittee last fall,
members of the Subcommittee articulated these same concerns. Let me
assure you that was not our intent. The new approach spelled out in the
final rule contains many changes which underscore my commitment to an
open, inclusive dialogue in the true meaning of the word dialogue--
which includes listening.
We addressed the concerns about giving claimants sufficient time to
submit evidence in three ways. First, we will give claimants at least
75 days notice before a hearing instead of the 45 days proposed in the
NPRM. This will allow claimants and their representatives enough time
to gather all necessary evidence and prepare for the hearing. Second,
the final rule allows claimants to submit evidence up to 5 business
days before their hearing instead of 20. This gives the claimant more
time to submit evidence and will ensure that all parties to the hearing
have enough time before the hearing to review the evidence and prepare
for the hearing. Third, we expanded the range of circumstances in which
an ALJ will accept evidence that does not meet the 5-day deadline.
Final Rule
The final rule was published in the Federal Register on March 31.
It explains the new procedures for adjudicating initial claims for
disability insurance and for Supplemental Security Income based on
disability or blindness. The preamble to the final rule explains in
detail the changes from the NPRM that were made as a result of the
comments the Agency received. We created a dedicated website,
www.socialsecurity.gov/disability-new-approach, to provide you with
information about the new regulation and background related to its
development.
The new disability determination process takes full advantage of
Social Security's new electronic disability claims system, or eDib.
Using eDib technology, the DSI changes will shorten decision times and
pay benefits to people who are clearly disabled much earlier. eDib also
allows us to access the electronic folder from any location making
possible many of the changes in the new process.
Changes to the NPRM
As I mentioned at the beginning of my statement, in drafting the
final rule, we were aware that, although there was broad agreement on
the need for change, numerous groups perceived our proposed rule as
favoring administrative efficiency over fairness.
We made a number of changes in the final rule in addition to the
changes in the timeframes for submitting evidence that I discussed a
moment ago.
We added language to the final rule to make it clear that a
claimant, unable to make a timely request within 60 days of receiving
his or her initial notice, can request additional time to request a
review both before and after the 60-day period has ended. The claimant
will also be permitted to submit new evidence after requesting review
up until the date of the Federal Reviewing official, or FedRO decision
(I will discuss this provision in more detail later).
We heard many concerns with the proposal that the Decision Review
Board, or DRB, would consider only statements that it requested from
claimants. In response, in the final rule, we allow claimants to submit
statements to the DRB whenever the DRB notifies a claimant that it will
review his or her claim.
Without question, elimination of the Appeals Council and its effect
on the Federal courts was the area in which the most concern has been
raised. At present, all social security disability cases appealed to
the Federal courts must first be reviewed by the Appeals Council.
Despite this final administrative review, nearly 60% of all appealed
cases are remanded to the Agency either ``voluntarily'' through
requests made by our General Counsel or as a result of findings made by
the courts. Accordingly, in the NPRM we proposed gradually to phase out
the Appeals Council and replace it with a new DRB. While claimants
would no longer have a right to request review of an ALJ decision, the
DRB would review an equal number of error-prone allowances and denials.
Throughout the comment period, concerns were expressed about this
approach by organizations representing disability claimants who
expressed fears that clearly erroneous denial decisions might escape
review. The Judicial Conference and others also expressed concern that
the Federal courts might be inundated with meritorious claims that
would otherwise have been intercepted and resolved by the Appeals
Council. In both instances, these concerns centered on the question of
whether the Agency could develop an effective method for selecting the
cases to be reviewed by the DRB.
In response to these concerns, we have decided that the DRB will
initially review all of the administrative law judge decisions--
allowances and denials--issued in the Boston region. This 100 percent
review will allow us carefully to design, test, and validate a
predictive model for selecting a subset of all ALJ decisions for DRB
review that include those most likely to be remanded by the U.S.
District Courts. During this same period, we will analyze the effects
of the new approach on the workload of the Federal courts within the
region.
We also heard many concerns about the changes we proposed regarding
our reopening rules. Many argued that our existing reopening rules
already worked well for claims decided at the earlier stages of the
process. In response, we decided that our existing reopening rules
would continue to operate for all claims adjudicated prior to the
hearing level. We retained other changes to the reopening rules to
allow for the reopening of claims decided at the hearing level or
beyond while at the same time ensuring that we could efficiently close
the record, with good cause exceptions, after we have issued a final
decision.
Overall, our expectation is that the disability service changes
will result in substantial improvements that will enable claimants to
receive more accurate, consistent, timely, and understandable
decisions. We also believe that this rule ensures an adjudicatory
process that is consistent with due process, will give claimants a
meaningful opportunity to be heard, and make accurate allowances as
early in the process as possible.
Changes in SSA's Structure
To improve the management of our initiative as we move forward, I
made two major organizational changes at SSA. I created a new Deputy
Commissioner-level office named the Office of Disability Adjudication
and Review to manage the agency's disability adjudication process. The
Office of Disability Adjudication and Review, or ODAR, will manage the
new FedRO level, the hearings and appeal functions formerly managed by
the Office of Hearings and Appeals, and the new Decision Review Board.
I believe it is important to have a single Deputy Commissioner that I
can rely on to manage effectively every level of our disability
adjudication appeals process, so that I can be sure that the entire
adjudicatory process is functioning efficiently and fairly for every
single claimant.
I also established a new Office of Quality Performance to manage
the Agency's newly developed and still evolving integrated quality
system which I believe will improve our disability determination
process, as well as other program areas such as the Social Security
retirement program and the SSI age-based program. The new Office of
Quality Performance will manage a new quality system that includes both
in-line and end-of-line quality review throughout the new DSI process.
The Office of Quality Performance will be able quickly to identify
problem areas, implement corrective actions, and identify related
training as we implement the new DSI process.
Features of the New System
So how does the new process work? In summary:
The State Disability Determination Services (DDS) will
continue to make the initial determination.
Individuals who are clearly disabled will have a process
through which favorable determinations can be made within 20 calendar
days after the date the DDS receives the claim.
A Medical and Vocational Expert System (MVES) will
enhance the quality and availability of the medical and vocational
expertise that our adjudicators at all levels need to make timely and
accurate decisions.
A new position at the Federal level--the Federal
Reviewing Official, or FedRO--will be established to review state
agency determinations upon the request of the claimant. We intend to
have well-trained attorneys serve as FedROs and we expect that this
level of review will help ensure more accurate and consistent decision
making earlier in the process.
The right of claimants to request and be provided a de
novo hearing conducted by an administrative law judge is preserved.
The record will be closed after the administrative law
judge issues a decision, with provisions for good cause exceptions.
A new body, the Decision Review Board (DRB), will be
created to identify and correct decisional errors and to identify
issues that may impede consistent adjudication at all levels of the
process.
And the Appeals Council will be gradually phased out as
the new process is implemented throughout the nation.
Two key improvements are embedded in the process. First are
improvements in documenting the record at each step, so that all
relevant information is available to adjudicators, and the claimant
fully understands the basis for whatever decision is made. Second is a
greatly strengthened in-line and end-of-line quality review process. In
addition, quality feedback loops at every level will foster continuous
improvement.
Implementation
The DSI process will be rolled out in a careful and measured
manner. This gradual implementation will allow us to monitor the
effects that the changes are having in each region, on our entire
disability process, and the Federal courts. The lessons that we learn
in the early stages of implementation will help us as we move into the
later stages of the roll-out.
Just as we did with the implementation of our electronic system,
implementation will be phased in and if we find that additional
improvements are needed during the roll-out, we can and will make them.
We will continue to listen to those with concerns, and we will make
changes when necessary.
Moreover as we roll out the DSI process we intend to continue and
expand our efforts to make sure that all adjudicators make their
determinations and decisions based on a record that is as complete as
possible. To do so, we plan to review and improve our informational
services to claimants and to medical providers so that they will better
understand what information adjudicators need to make determinations or
decisions.
We also are developing requirements for training physicians and
psychologists who perform our consultative examinations to make certain
that they understand our determination process and the information
adjudicators need to make accurate decisions. As part of this effort to
improve consultative examinations, we are instituting a quality review
to ensure that claimants are getting a good evaluation of their
conditions by the right set of eyes and to ensure these examinations
are yielding the information we need to make decisions. In addition, we
are developing templates that adjudicators will use when they request
examinations to ensure that the appropriate information is requested.
Decisional templates are also in the works for adjudicators at the
DDS and FedRO levels that will assist them in writing decisions, and we
have already started using a decisional template at the administrative
law judge level. The use of these templates will help ensure that
claims are properly developed, legally sufficient, and consistent with
our policies.
The templates are being or have been created and tested with
considerable input from adjudicators in the field--the very people who
will use them in the new process. They are a critical factor in
ensuring accuracy and consistency, and in enabling the quality feedback
loops.
In addition, we are working with medical sources to encourage the
submission of evidence electronically whenever possible in order to
expedite the decisional process. Special arrangements are in place to
obtain both medical and non-medical records from large governmental
agencies such as the Department of Veterans Affairs, the Military
Personnel Records Center, and State Division of Vital Statistics. As a
result, Social Security is already the largest repository of electronic
medical records in the world. And, we have stringent policies and
procedures in place to properly safeguard personally identifiable and
medical information from loss, theft, or inadvertent disclosure.
We will begin implementation in the Boston Region for claims filed
on or after August 1, 2006. Boston is one of our smallest regions and
is comprised of the six States of Connecticut, Maine, Massachusetts,
New Hampshire, Rhode Island, and Vermont. After full implementation in
these states, we expect to wait an entire year--to monitor the changes
and collect management information--before we consider rolling out in a
second region.
By taking this careful and measured approach, we will be able to
address any issues that may arise and ensure that implementation in
future regions will progress efficiently.
Under our implementation plan, DSI will only apply to claims that
are filed in a region where the DSI process has been implemented. If a
claim is filed in a region where we have not yet implemented the new
process, we will use current procedures to adjudicate the claim.
If a claimant moves from one State--where the new process is in
place--to another State--that does not have the new process--the
adjudicators will apply the regulations that were initially applicable
to the claim. In other words, once a claim is under one system, it will
stay in that system. This also applies to the pending cases in a region
when roll-out begins. Those cases that are already in the system will
be worked under the ``old'' rules and new cases will be worked under
the ``new'' rules.
For example, the elimination of an Appeals Council review will only
apply in regions where we have rolled out the new DSI process and to
disability claims that have been processed from the start under this
rule.
Of course, we will continue to monitor the effects on the
disability determination process and the Federal courts as we implement
DSI in other regions of the country. Obviously, if we find that there
are issues, we will make changes as necessary.
Rollout Begins August 1
As I said, we are rolling out the process on August 1st,
and you have my assurance that we are doing all that we can to make
sure that we implement in an orderly and timely manner. In typical
fashion, the hardworking men and women of SSA and the state DDSs have
pulled together and are getting the things done that must be done to
move forward.
So far, we have developed major new computer systems to support the
DSI initiative. We have performed all of the personnel and hiring work
necessary to make sure that we have the new employees in their new
positions, properly trained, in time to perform their new DSI duties
when implementation begins. We are working to ensure that effective
training is prepared and presented to every employee who will be
involved with the new disability determination process. Although we do
not have the same kind of personnel or hiring issues at the hearing
level as we do for other levels, we do have systems needs unique to the
hearing level, and we are currently working to ensure that the
necessary computer systems are in place by the time the first DSI claim
reaches the hearing level.
Conclusion
As you know, shortly after I became Commissioner, I met with
President Bush to discuss SSA's disability programs. He asked me three
questions:
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 risk going back to work after going
through such a long process to receive benefits?
I am proud to say that our new disability process addresses all of
these concerns.
As I look back over the long road to the changes we will begin
implementing in just a few weeks--and reflect on the spirit of
cooperation, professionalism and dedication to serving the public that
has been demonstrated by the men and women of SSA and the DDSs,
advocacy groups, and Congress--I am convinced that we can make this
happen. I am also convinced that the American public will benefit
greatly.
As we roll out DSI, we plan to continue the dialogue that has
served the process so well. Because this is not just about getting it
done; it's about getting it done right.
In closing, I want to express again my heartfelt thanks to everyone
who has helped us on our journey toward an effective DSI. As I said at
the beginning of my testimony today, this subcommittee has traveled
with us throughout the journey. I want to thank you again publicly for
your advice, insight and support that have meant a great deal to the
agency and to me personally. And I know that we can count on your
continued support and advice as we make DSI a reality.
Chairman MCCRERY. Thank you, Commissioner Barnhart, and
thank you for outlining those changes that you made in response
to our concerns and concerns expressed by others.
I mentioned in my opening remarks that on August 1st you're
going to start not really a pilot program but a kind of a pilot
program. You're going to start in the Boston Region and operate
this new system there for 1 year.
What do you hope to learn in that first year? Are you going
to try to take things that you learn to modify, at least guide
the way for the national rollout?
Ms. BARNHART. I appreciate that question, Mr. Chairman. If
I may, I'd like to describe what I call a dynamic management
approach to ongoing evaluation and implementation.
There are going to be three facets to what we're going to
be monitoring during that first year in particular, and through
the whole process, but you asked about the first year.
Specifically, first of all, we're going to be looking at
the outcomes.
By that, I mean how many allowances are there, how many
denials are there, how soon in the process is it happening, are
we really shortening the processing times as we thought, what's
happening with the waterfall of cases as a claim moves through
each step, are we really making the right decision earlier in
the process as we have committed to, what is the effect on the
Federal courts, and what is the situation with remands?
All those specific things that we look at now in the
system, we're going to be looking specifically in the new
process as to how those compare to what's happening today.
Secondly, we're going to be looking at how we are actually
implementing the regulation in the way we said we were going
to? In other words, are we doing everything we said. If there's
an issue and something doesn't seem to be playing out the way
we anticipate? Obviously, if we're not implementing it the way
we said, we'll be going back to make sure that we do, and
taking steps to correct that.
Then finally, if we look at the outcomes and we're
implementing the way we said, and we're not getting the results
that we anticipated in terms of the right decision as early in
the process as possible, then we will certainly be open to
revisiting strategic assumptions that we made in crafting this
process to begin with.
It's one of the reasons I think the phased-in rollout that
we have is important. In fact, we're starting in a smaller
region, the Boston Region, a region that has less backlogs,
quite frankly, in the hearing offices and will have none by
January of this coming year because we're working to move them
down.
So, there are a lot of things we're putting in place so
that we can get a nice, clean measure of what the situation is
going to be in Boston, and we are fully prepared to take action
as we move along.
So, we will not be doing a retrospective evaluation,
waiting a long time and looking back. We'll be doing it on an
ongoing basis, and will certainly be happy to provide
information to this Committee as that process plays out.
Chairman MCCRERY. Have you thought about enlisting some
outside review organization to look at the results of the first
year?
Ms. BARNHART. We did consider that, but because we're not
doing an evaluation in the sense of waiting 5 years and then
doing a report on it, we really thought that the dynamic
approach we're using, that wasn't necessary for us, and it
really wouldn't work, because by the time we got the report, we
hopefully would have taken action to correct it.
The other thing I would point out is, as you well know, the
U.S. government Accountability Office (GAO) who is testifying
on the panel that follows me at the request of this Committee,
is already looking at how we're doing in terms of implementing
the implementation, and I appreciate that, and I really
appreciated the GAO report. I read it earlier this week.
I would fully anticipate that that kind of outside
oversight would be taking place probably at the behest of this
Committee, if not, by GAO's own doing.
Chairman MCCRERY. Okay. In the hearing last year, we talked
a little bit about the possible impact on the caseloads of the
Federal district courts.
Do you have a plan to measure the impact of this change in
the Boston Region?
Ms. BARNHART. We do. In fact, what we're hoping to do is to
mitigate any, untoward effects, as far as that goes.
I have worked very closely, and members of my staff have
worked very closely with the staff of the Judicial Conference
Subcommittee for Disability. Judge McKibben is the head of it.
He and I just talked, in fact, just a few weeks ago.
We've had regular contact, trying to make sure we're
addressing the issues that they have raised throughout this
process. Obviously, they don't want a deluge of cases hitting
the Federal courts. We don't, either. We believe if the process
works the way we've designed it, we'll see less cases going to
the Federal court.
Obviously, we can't stop people from taking cases to
Federal court. What I would hope is that we would see fewer
meritorious cases going to Federal court because of us doing
our job earlier in the process, in other words, that we would
see less remands from the court, because we would have done the
right job to begin with, we would be pulling back less cases
ourselves through what we call voluntary remands.
To ensure that we are doing the best job we possibly can in
Boston, we're going to be reviewing 100 percent of the
decisions at the Decision Review Board (DRB) before they go on,
so that will allow us to actually validate the model that we're
going to use as we roll out, for selecting the cases that we
would refer to the DRB, and by the way I would point out again
it's going to be an equal percentage of allowances and denials,
not just one or the other.
Chairman MCCRERY. Lastly, before I turn it over to Mr.
Levin for questions, you mentioned the fact that the Boston
Region is smaller, and they don't have as much backlog. We're
going to have a witness later that's going to talk about how in
the Boston Region favorable initial and reconsideration
decisions are higher in the Boston Region than nationally.
Does that concern you, that you're using a region that
maybe is already a little further along the path to reform, so
to speak, or better outcomes.
Ms. BARNHART. Well, let me say this. I was just talking to
some of the members who are--the staff that are here with the
witness from GAO--and telling them, what I may have told this
Committee before, that I came to work in Washington in 1977,
and the very first GAO report I ever read was that State
allowance rates vary in the DDS disability determinations. That
was almost 30 years ago.
It's interesting, it was the first report I read, and I'm
here testifying on issues related to that today.
The whole point of creating the Federal reviewing official
(FedRO) and creating a centralized quality system as opposed to
a regionally based quality system was to ensure consistency
across the country, State to State, region to region. We're not
going to be doing things based on region or based on State.
In other words, the idea is ultimately when we have this
fully implemented, reviewing officials will be looking at cases
from all over the country, they won't be doing a particular
State. Our quality reviewers will be looking at cases from all
over the country, they won't be reviewing a particular State.
It should take out any bias that might exist from looking at it
on a solely State and regional basis.
In terms of Boston itself, as I said, I chose it for a
number of reasons.
First of all, it seems to be less litigious. Less cases go
forward to Federal court, and that was important, because
obviously we wanted a manageable number, since we're going to
review 100 percent of the cases, and they do have a higher
allowance rate.
I believe that the approach we're taking with the FedRO,
having that Federal review at that very next step, as opposed
to the DDS recon, is going to equalize any effects of that.
Chairman MCCRERY. So, you think that the new process you're
going to eventually have in place nationwide will actually work
to smooth out the differences in allowances among the States?
Ms. BARNHART. I think it will, because we're not going to
have--obviously, when you have individuals doing a review, even
though you try and make it consistent, you have a certain human
variance.
Then you exacerbate that when you have the people in a
certain area not under centralized management, where they're
getting exactly the same guidance every single day.
Then finally, they become familiar with a particular State.
I think that is just human nature, and the way we do work,
it builds certain biases into the system, and that was a real
important part of the design, to make sure that we don't have
that happening, to equalize that.
Chairman MCCRERY. Okay. Good.
Mr. Levin.
Mr. LEVIN. Let me follow up on that.
You know, sometimes we complain that the opening statements
are too long, except if it's Alan Greenspan I guess, but in
your case, I'm not sure we gave you enough time.
There are so many of us here. I think the turnout indicates
the importance and the interest in this.
So, the discussion of the FedRO, I think, highlights the
need for you to describe for all of us, for all of us assembled
here, for those who will be watching, what the two or three or
four major problems were and how this addresses them, the final
regulations.
I think we need to go back a bit----
Ms. BARNHART. I'll be happy to.
Mr. LEVIN. --and have you pick them out and how this
addresses it, how you think the FedRO system will work, and so
forth, and so forth.
Ms. BARNHART. Okay. First of all, I think in terms of that
issue of consistency, Mr. Levin, I appreciate this opportunity,
because to me the FedRO is actually really the linchpin of the
new process, so I really appreciate this opportunity to
elaborate.
I think, as I said to the Chairman, I believe from a
consistency perspective, the fact that we'll have Federal
employees, not people from 55 different jurisdictions, who are
taking a look early in the process from a consistent
perspective, is going to be extremely important.
Secondly, from the claimants' perspective, right now, the
DDS reconsideration is viewed largely as a rubber stamp of the
initial DDS decision. If you ask, there are people here
representing claimant representatives and claimant advocacy
organizations, and I think most of them would tell you that,
and with good reason.
While 40 percent of the cases are allowed--roughly 40
percent, 35 to 40 percent at the initial stage of determination
by the DDSs--when it comes to reconsideration, 85 percent of
the time, the initial DDS decision is sustained.
Yet what we see is when the cases move on to the hearing
level, which is the next stage for reconsideration, the
allowance rate is about 63 percent.
So, from the claimants' perspective, I think they will feel
first of all, that they're getting a more independent review of
their case, which I think is very important. If we're going to
take the time for a second step, the claimant and their
representatives should know that they're getting a really,
truly independent review, and they will not see it so much as a
rubber stamp, because if we do our job properly, we'll be
documenting the record better all along the way, and we're in
the process now of developing, and have completed developments
on some of them, templates for the DDSs to use in making their
decision and writing their rationale, for the FedRO to use, and
we have something called a findings integrated template for the
ALJs to use, but all the way through, the record will be better
documented.
That means more medical evidence will be gathered, better
decisions will be made earlier in the process, which should
reduce the number of people who need to go forward to a
hearing.
Right now, our hearing process takes over 400-and-some
days. That's the average processing time. I wish I could report
to you that the time has gotten better since I became
Commissioner in terms of the average time. It hasn't. We have
actually reduced the time by 4 months if you look at a
particular case, but the average time, no, we haven't, because
of the volume of cases that are coming in.
For the claimant who is waiting, it's much better for them
if they're going to get a ``yes'' to get it sooner in the
process as opposed to have to wait to go all the way through
that hearing process to get it.
Mr. LEVIN. So, there's a problem of consistency of
effectiveness, would you say, to the older system, the present
system, so there wasn't consistency, there wasn't
effectiveness, it was--the process you're saying was so that
there was allowance and then a rubber stamping of the
disallowance and then the overturning of the disallowance, and
so that wasn't an effective system, you're saying?
Ms. BARNHART. Correct. Yes. I don't think it is when you
have a rubber stamp, essentially rubber stamping.
I'm not taking anything away from our DDSs. Understand
they're under tremendous pressure. So, this is really not about
them doing a bad job. It's just a system that I think doesn't
work when you're reviewing it yourself.
Mr. LEVIN. So, is there another defect that you think is
being addressed besides those two?
Ms. BARNHART. Well, I do think development of the record is
very important, because I think right now what our ALJs have
told me since I became Commissioner is that when they get these
records in the hearing offices now, they're not well developed,
and oftentimes they have to go all the way back to the DDS to
get information. A good part of the delay at the hearing level,
Mr. Levin, is the fact that we're having to go back and get
things that should have been put in the record before.
By having a decision template that walks you through the
logic of what you should have been doing, what you should have
been looking at, the factors that should have been considered,
and having to write up the logic that you used in coming to the
conclusion you came to, it's going to necessitate that you do a
better job getting the documents that you should have in the
record.
It's a change in orientation from just worrying about
initial processing times in terms of speeding it up to making
sure that while they're doing the best job they can do, being
as efficient as possible, they're actually doing the right
thing in terms of documenting the decision, getting the
evidence.
We probably could see an expansion of time for initial
disability, but ultimately, because less cases would go all the
way through, we would see a great savings in time at the
hearing level.
Mr. LEVIN. Just one last quick question.
So, what do you think is the most controversial or
questionable aspect of this new approach?
Ms. BARNHART. Based on the comments that we received, I
would say that the--I hate to use the word controversial, but
probably the area that most people expressed concerns about was
the elimination of the Appeals Council and the creation of the
DRB, and it's one of the reasons that we decided to leave the
Appeals Council in effect until the last State is implemented,
so the DRB will come up in the new States where we're
implementing the new process, but the Appeals Council will
continue, as opposed to just eliminating the Appeals Council
right off the bat.
It's one of the things that we'll be looking at very
closely in terms of what happens with the DRB, our ability to
pull the right cases there, to look at them.
What happens, going back to your first question, to the
courts, what happens in terms of the workload on the courts. We
will be monitoring the DRB very carefully for that reason,
because I think that's the area that most people had concerns
about.
So, what we're doing is putting in a lot of management
information and checks so we know what's going on. We're
pledging to monitor and make adjustments as we need to.
Mr. LEVIN. Thank you. Thank you, Mr. Chairman.
Chairman MCCRERY. Mr. Hayworth.
Mr. HAYWORTH. Thank you, Mr. Chairman; and Commissioner
Barnhart, welcome back.
Ms. BARNHART. Thank you.
Mr. HAYWORTH. Seeing you here tempts me to wax both
nostalgic and rhapsodic about implementation of the first
ticket to work in my district back a few years ago, and the
efforts to emphasize ``ability'' in disability.
With your indulgence, I appreciate hearing what is
transpiring prospectively, but in real time, there in Tempe and
in Arizona, in my State, in Region 9, we've got a little
challenge, to put it euphemistically.
Last week, Region 9 management let my State's DDS directors
know that they need to reduce the backlog of initial
determinations.
In response, the Arizona DDS director apparently ordered a
halt to all reconsiderations.
Now, in order for claimants to request a hearing by an SSA
ALJ, they must first be denied at the reconsideration level.
From my understanding, the stoppage will only last as long
as it takes for the Arizona DDS to reduce the number of initial
determinations that are pending, and any initial determination
that is disapproved becomes a potential reconsideration case,
and with the current stoppage of reconsideration and the focus
on initial determinations, it looks like the backlog of
reconsiderations can be expected to grow.
Nearly 37 percent of additional determinations are approved
for Social Security Disability Insurance (SSDI) or Supplemental
Security Income (SSI) benefits, so clearly, focusing no initial
determinations will ensure that claimants entitled to benefits
will get them as soon as possible.
Unfortunately, those claimants who had been approved on
reconsideration will have to wait even longer for benefits, and
as I understand it, on average, initial determinations take 95
days and reconsiderations 97 additional days.
How long, if you could estimate it, how do you estimate
temporary stoppage of reconsiderations in Arizona to last?
Ms. BARNHART. If I could just explain, we haven't totally
stopped reconsiderations anywhere. The dire needs
reconsiderations are happening.
It was done--the action that we took was to look at what
was going on on a region by region, State by State basis, as
you point out your own case in Arizona.
Here's the situation we face. We have now worked almost
9,000 more reconsiderations this year than we have received,
which means we got into the ones that came in last year.
The same thing is not true with the initial claims. We're
behind. We had 560,000 initial claims pending at the end of
last year. We now have 660,000 claims pending right now, where
we are, halfway through the year, a little more than halfway
through the year.
The reason for that is the subject of this hearing, the
hearing that we had just a few weeks ago, which is the fact
that we didn't get the allocation the President asked for in
the budget, and it meant that we could only replace people at
the DDSs, for every two vacancies, one person, so we have not
been able to keep the DDS staffed this year the way we would
have liked.
So, looking at the fact that we're really ahead in terms of
reconsiderations and way behind in terms of initial claims, and
it does vary State to State, because obviously population
growth, What's really happening in terms of increased workload
and so forth affects it, we took a look to try to balance out
the workload.
The hope is that it will only be--the way we're looking at
it is at the moment, what we're trying to do is direct all
available resources, as many as we possibly can, to initial
claims.
As this Committee knows, last week, the Congress passed $38
million in the supplemental Katrina appropriation, and I
appreciate the support from this Committee. We received $38
million for Social Security, or will in the very near future.
When we sort of repay ourself for what we spent on Katrina,
we will then be able to apply that money to increased capacity
all across the country.
Obviously, there are going to be limitations on how much
capacity at this point, because we're halfway through the year,
but I'm going to be monitoring the situation really closely.
What it means, and you actually got to the point of it is,
it's not that we're not doing recons, it's that the recons will
simply take longer, just like this year, we're restaffing. In
some field offices, we have to wait 'til eight vacancies to be
able to back fill some positions now, because the funding
limitations we have, some people are having to wait longer for
an initial appointment to come into a field office to make an
application. It's not that we're never going to do them. It's
that it's--and that we're not doing them--it's just that it's
taking longer to get to them.
I'll be happy to keep you apprised as we look at the
situation.
Mr. HAYWORTH. Madam Commissioner, I look forward to that,
and I thank you for your time, and I yield back, Mr. Chairman.
Chairman MCCRERY. Thank you, Mr. Hayworth. Mr. Becerra.
Mr. BECERRA. Thank you, Mr. Chairman.
Commissioner, thanks again for being here, and one
additional thank you, and that's for the quick response that
you and the office gave to the questions that I had raised back
at our previous hearing about the adult disabled child issue,
and I want to thank you for the quick response.
I know you changed your Web site to address some of those
concerns, and I know you're looking for other ways to try to
make sure information is received by families that might find
themselves in these situations with children and adult children
who might be disabled, so thank you very much for that.
Ms. BARNHART. I appreciate you flagging it as an issue for
us, because we weren't aware, so we appreciate it.
Mr. BECERRA. Thank you.
Congratulations on moving through the process, and I think
sometimes we get down in wanting perfection, and we never get
to implement, so I think most of us are looking forward to
having a new system up and running and hopefully reducing the
backlogs.
Let me just flag some things that I hope you all will
continue to monitor, because at this stage, you want to
implement, so it's no longer trying to work something out and
formulate it, it's implementing.
The FedRO, I think--I hope you will really, as I think has
been expressed before, really focus on that, because that's the
linchpin to the system.
If that doesn't work, then you're not going to deal with
your appeals process very well, because you're still going to
have the problem of these decisions not being done well and
claimants in the end suffering the consequences.
Late evidence. I know we--you were able to make some
changes that I think better accommodate the needs of
individuals, but I hope we'll always remember that we don't
want to turn these processes, these appeals processes into
court hearings. We don't want this to become a court of law
where everyone follows these rules of evidence to the tee and
you've got an adversarial situation that confronts you so that
you can't talk to the other side.
We want the claimants, who for the most part aren't
financially well off, to be able to go through a process that's
friendly.
So, I hope that when it comes to the issue of evidence,
especially late evidence for claimants who, through no fault of
their own necessarily, have good late evidence, that that
doesn't hurt them.
I also have a concern about how the statutory requirements
that say that we must take into account evidence adduced at the
hearing will not become an obstacle to considering evidence
that comes late.
So, how do you deal with the fact that evidence has to be
adduced at the hearing to come to a decision, yet late
evidence, which may be critical, comes in, and at what point
will we have some appellate decision that tells us, well,
you've got a conflict; the statute says you've got to take
evidence only that's been only adduced at a hearing versus
evidence that's critical and credible that comes in late. So, I
hope we continue to monitor that.
Then finally the appellate process. I have some concern
about removing that appeals process and going toward these
DRBs, but again, I think with have to see them work, and I hope
what we do is again not give ourselves a system that becomes
like the courts--very formal, very legalistic, very expensive--
and we continue to give claimants what they deserve. So, I hope
you monitor those things.
The final thing I'll flag for you is something that goes
beyond just this whole process, and that's just that you have
men and women in your agency who are doing more and more every
day, and you have fewer and fewer people doing it, and at some
point, you're going to bust. You can't do this.
I know you're limited in what you can say and do, but I
hope we will recognize that the work that you do is critical,
as critical as any Federal agency or any Federal organ, and
unless we have the personnel properly trained and equipped to
do this with the ability to have decent morale in the shop,
it's all going to fall apart, and you cannot continue to have
more imposed upon you and the men and women that work for us
without the resources to pay them well and to have the
equipment and the materials that you need.
I think more and more we're beginning to see internally
that these major backlogs that you've been trying yeomanly to
try to address are the result not of any neglect, not as a
result of any inexperience, it's just the fact that you don't
have enough people, and we've got--I say that to you, and there
should be a mirror there, because it really should be said to
the Congress. We need to give you the resources you need to do
this.
You've got to be honest with us. You've got to let us know,
because we hear from a lot of the rank and file in your
different offices. It's like what happens with all the social
workers who are asked, or the parole officers who are asked to
do massive caseloads. You can't do it.
So, I hope that we'll keep that in mind as we move forward,
but thank you for the work that you're doing, and we look
forward to working with you.
Ms. BARNHART. Thank you. If I could just respond, Mr.
Chairman.
Chairman MCCRERY. Sure.
Ms. BARNHART. You've touched on many things. I'm just going
to pick a few that I'd really like to comment on.
One of those is the appellate process and the concern you
expressed. As I indicated earlier, perhaps that is the area,
the elimination of the Appeals Council eventually and the
creation of the DRB, where we got the most comments.
One of the changes that we made in the final regulation
that we will be monitoring very closely to look at as we roll
out to future regions, is that all claimants who move forward--
and in Boston it's everybody, because we're going to look at
100 percent of the cases--may submit a statement to the DRB.
That is not something that was provided in the NPRM.
What we will be looking at is to see if, as we look at our
predictive model and validate it, if the cases where the
statement is submitted, where a change was made outside--in
other words, the point is to see what the value is of that
statement and how we ought to look at institutionalizing, it or
changing it, or whatever as we move forward to other regions.
I just want you to know that's one of the reasons we made
that change in the final regulation, and we are going to be
looking at that very closely, because we're aware of those
concerns.
Secondly, in terms of resources, I certainly support what
you're saying. I have attempted to be very clear with Congress.
Most of those conversations take place at the Appropriations
Committee, as you know. This Committee has always been
extremely supportive about the resources that we need. That's
why I developed the five-year budget plan, to show what you can
get for the money.
Just this week, you may be aware that the Appropriations
Subcommittee provided $200 million less than was requested in
the President's budget, and if I could just take a moment to
explain the likely result of that, should that hold.
First of all, that's exactly the amount of money that was
set aside in the special funding for the Continuing Disability
Review (CDR)s, which means we would not do 237,000 CDRs. During
the last time I was here before this Committee just last month,
there was a great deal of concern expressed about the CDRs, and
recognition that we need to do them.
From a staffing perspective, we would have to cut an
additional 1,900 work years, because the elimination of that
$200 million, there are people attached to doing that work, and
so what that means is the replacement rate we're experiencing
now, and in some field offices it is one for every eight
vacancies, one person, depending on whether or not there's
population growth taking place. In our DDSs it's been one for
two. For every two who leave replace one. Those will all
change, and it will be even worse than it is now.
So, there are very real consequences, and you're absolutely
right. I laid out the backlogs for the hearings. We're looking
at backlogs of 660,000 in the DDS. We're trying to get that
down to 577,000 before the end of the year.
The point is, not only will we not make headway in terms of
working those backlogs away, they will grow even more if we
don't get the requested budget that the President made. So,
very real terms. We've provided this information to the
Committee.
The real, the very real danger, I will be quite candid and
tell you is if they do an across-the-board reduction as has
been done in the past, say another 1 percent, we may actually
be in a position of probably having to furlough staff, for
approximately a week.
So, the point is, it's a very serious situation financially
for the agency.
Then finally, I would just say your comment about the men
and women of SSA, I totally ascribe to your views about the
people in this Agency. They do an unbelievable job.
Frankly, if they had not done what they've done in terms of
productivity, which means they're working as hard and
efficiently as they possibly can, we would be in much worse
shape. We've increased productivity by almost 13 percent since
2001. That is due to systems, obviously, but it's also due to
the men and women in the agency doing what's necessary to make
it happen, too.
Mr. BECERRA. Amen.
Chairman MCCRERY. Ms. Tubbs Jones.
Ms. TUBBS JONES. Mr. Chairman, thank you. I was just
fortunate that I decided not to run and get a vote in here
before the other group did.
Madam Commissioner, it's always good to see you.
I want to continue down the path about the impact that the
200 million reduction in level of funding will have on the
agency. You already talked about it affecting approximately
1,900 workers.
Your plan was to address backlog, so less workers, more
backlog. Tell me what impact that will have on your ability to,
if you can put it in numbers, to address backlog. You thought
you might get through however many cases with this new work.
How many cases won't you be able to get through?
Ms. BARNHART. Well, we, as I said, we won't be able to do
237,000 CDRs. That's a very measurable workload.
In terms of turning it into cases, I haven't done that
analysis yet, but I'd be happy to do that. We can do that, Ms.
Tubbs Jones, and I'd be happy to provide that.
Ms. TUBBS JONES. I'm not a numbers person. I'm just trying
to show the real impact that the reduction has. The 237 CDRs
shows me what we're talking about.
Ms. BARNHART. I can tell you now, even with level funding
in our hearing offices, in other words, we're replacing one for
one in our hearing offices. If someone leaves, we replace them.
Okay. So, it's a one for--obviously, because of the enormous
workload. We still have a workload that's growing this year, if
that helps----
Ms. TUBBS JONES. Even when you replace one for one, assume
you replace someone with 1 year of legal experience and lose
someone with 20 years of legal experience, that's a great, or
as big an impact, even if you can do one for one.
Ms. BARNHART. The learning curve issue is huge. We believe
it takes about 2 years in our field offices to learn the job
and become proficient. In some of the jobs in our hearing
offices, it's 2 years.
For our ALJs, and we just brought 41 new ALJs, on we
believe it will take 9 months----
Ms. TUBBS JONES. In Cleveland? No, go ahead.
Ms. BARNHART. I can tell you. I knew you'd ask that
question.
Ms. TUBBS JONES. Always got to talk about home. We can get
that later.
Ms. BARNHART. Actually, we've added, since the last time we
talked about this, I've actually, I think added three judges in
Cleveland since 2004, but I don't believe there are any
scheduled for this time.
There would have been. We were going to hire 100 judges,
but because of the budget reductions, we didn't get----
Ms. TUBBS JONES. So, how many less judges are you going to
be able to hire?
Ms. BARNHART. We're going to have 59 fewer than we were
going to----
Ms. TUBBS JONES. Fifty-nine fewer judges?
Ms. BARNHART. Next year, with the reduction that we're
looking at now, if that holds, we probably won't be hiring any
judges.
Ms. TUBBS JONES. Talk to me about how many cases a judge
generally will handle in any period of time.
Ms. BARNHART. A judge generally handles--well, right now,
they're disposing of over two cases a day. At the peak last
year,we were at 2.5 cases a day. So, you take 20 workdays a
month and you're talking somewhere----
Ms. TUBBS JONES. A significant number.
Ms. BARNHART. Yes, very significant. What is it, 400, 450?
Ms. TUBBS JONES. Significant numbers.
Ms. BARNHART. Yes, very significant numbers. Our judges are
carrying enormous caseloads in some areas, sometimes as much as
950 cases per judge.
Ms. TUBBS JONES. Talk to me about the Electronic Disability
Folder System (eDib) and the impact it has on the ability to
file a claim in a field office.
Ms. BARNHART. Well, eDib, actually, I'm thrilled with eDib.
We're in a situation now where every State has electronic
disability at different stages of--at different levels.
We have 40 States, though, that now have the ability to
work in a fully electronic environment. In other words, they no
longer maintain the paper file and the electronic file. They
just do the electronic file.
What we're seeing, I can't give you hard numbers now, but I
will be able to soon, we're seeing a decrease in the processing
time in the States that have electronic disability and we're
seeing a real increase in productivity.
If I could just cite a couple of examples--unfortunately I
don't have Ohio here, but I do have Illinois, which has moved
from 255 cases a month to 279--PPWY of 255 per worker to 279;
Idaho from 250 in October to 349 in May; Texas from 261 to 287
in May; and in the Boston Region, where we're going to be
implementing first, they've gone from an average of 244 cases
to 296 for the month of May.
Ms. TUBBS JONES. Last question. Talk to me about the impact
this reduction of $200 million will have on your whole plan of
implementing new processes and bringing the agency into a
position where they have much less backlog.
Ms. BARNHART. Well, one of the things, as I mentioned,
we're trying to get, and we believe we will succeed in getting
rid of all backlogs in the Boston hearing offices by January.
We'll have pendings, but they won't be backlogs, because you
need a certain amount of work to keep working.
My hope is to be able to do that when we move on to Denver,
when we move on to Seattle, when we move on to Kansas City, and
do as much as we can as we get to the larger regions.
Obviously, if we're not able to backfill people at a one-
for-one ratio, and maybe hire some additional people, then
we're going to be in a situation of not being able to keep
current with the backlogs, let alone work them down, and it's
going to make that more difficult.
One of the reasons we have the phased rollout, though, is
it will allow us to adapt to whatever the funding situation is,
and what it may well mean, Ms. Tubbs Jones, is that we end up
having to delay implementation a little bit and stretch it out
a little more than the roughly 5 years I project right now.
Ms. TUBBS JONES. Mr. Chairman, thank you very much. Just
one more quick thing.
James Hill, will you stand up wherever you are in here? Hi,
James Hill, how are you? He is from the great city of
Cleveland, Ohio, will be testifying on the second panel, and
just in case I don't make it back here, Mr. Chairman, I would
for the record welcome a great Buckeye to Washington, D.C.
Thank you, Mr. Hill.
Thank you, Mr. Chairman.
Mr. BRADY. [Presiding.] Thank you.
Well, Commissioner, this is an exciting day. I have several
questions.
First, let me, Commissioner, thank your folks, your
employees at the agency, for two things.
Our district abuts Louisiana, and so we took in tens of
thousands of Katrina evacuees, and then when we got hit by
Hurricane Rita, we had our own problems. In fact, 10 percent of
our evacuees have yet to come back to East Texas, but your
local Social Security personnel were just critical, huge help,
as we tried to get those people back on their feet and get
those benefits reestablished and all their questions answered.
Then secondly, during the rollout of the Medicare
prescription drug plan, your folks were especially helpful, not
only in the townhalls explaining benefits, also on their own,
out there talking to all the senior groups, American
Association of Retired Persons (AARP) chapters all that, and
toward the end, as seniors were looking to get--to make those
decisions, they were very helpful in walking them through the
extra program, extra help program and the worksheets and all
that.
So, please tell your people they did an excellent job in
two categories in our region.
Ms. BARNHART. I will do that, and that will mean a lot to
them. They really worked their hearts out. It was a wonderful
example, the best I've ever seen of public service, and your
comments will mean a lot to them. Thank you.
Mr. BRADY. Great. Thanks.
Another part of the goal sort of like an emergency room
that's full of people who can be taken care of in other areas.
Part of the goal of this change is to get decisions made
accurately and early so we have fewer lining up at the ALJ
level of those.
What criteria--what will you consider a success in progress
in fewer cases at the ALJ level? How will we view how much
progress we've made in that area?
Ms. BARNHART. Yes. I think--we haven't set specific goals
or targets at this point, Mr. Brady, but it's a really good
question.
I think the first thing I will do is I will look to make
sure that the cases that go on to Federal court, the remand
rate, in other words, have we reduced the number of the
incidents of Federal judges returning cases to us saying, ``You
didn't do your job right''?
The second thing, I will look at the number of cases that
our own attorneys pull back once they've gone to Federal court,
what we call voluntary remands, where we, upon review, before
going into court to defend a case, actually say, ``Wait a
minute, we don't think we did our job right.''
I will look at what the DRB--the results of the DRB. In
Boston we're going to have the luxury of reviewing 100 percent
of the cases, to see if they are reaffirming the decisions that
are made at the ALJ level, saying, ``Yes, we absolutely agree
this was the right decision.''
I will be looking--basically, what I'm saying is, at each
stage, looking back to the stage before, the ALJs, looking to
see what they said----
Mr. BRADY. Yes, and I think that's important too, that DDS
decision, how many are flowing through the--are their higher
rates than should be, larger caseloads than should be, because
that's a key.
Ms. BARNHART. So, one of the things, we know we're going to
have these feedback loops that go back from each level, but
what we're working out now is the vehicle for doing it.
Since the DDSs and the FedROs are different than the ALJs
in terms of the fact that they do a review based on our
direction and it's not an independent look, like the de novo
hearing that the ALJ does, what we're going to do there is
probably have our quality, our Office of Quality Performance,
which I just created a few months ago, be the conduit for the
information for the FedRO to go back to the DDS.
We also, as you know, provide in the regulation to have the
ALJ send comments back to the FedRO. What we have to work out
there is the vehicle for how that physically happens, how do we
actually get them there, but the idea is it's definitely going
to go back.
We would like it to be able to go back on an individual
basis, but I'm more interested in the aggregate, and I think
that speaks to the point that you're making, or the question
you're asking, because if I can look and see that in X percent
of the comments that went back, the ALJ said, ``I agree, you're
doing--you made the right decision,'' if the number of times
that the ALJ says to the FedRO, ``I think you made the wrong
decision,'' if that decreases over time, then I'll feel like
the process is working, because learning is taking place. In
other words, the one level is giving feedback and the other
level is responding.
Mr. BRADY. Sure.
Ms. BARNHART. I have not set specific numeric goals at this
point.
Mr. BRADY. What kind of training are you going to conduct?
Obviously this is--that's key, and that I think also is one of
the reasons we have disparities between regions and States is
that training level.
What have you put in place for that?
Ms. BARNHART. We are doing a lot of training.
In fact, one of our first training sessions happens I think
Monday, we start, and we are going to be training executives
who are involved in the process inside the Agency, and we have
a--in fact, I think today we're doing this--I did a video
that's being shown today--it's part of our ``Main Streets''
series--where I talk about the new process and sort of the big
picture for people, and then we move into the specifics next
week, and there's more training coming out all the way through
July.
We will obviously have to train all of our FedROs, because
that position has never existed before, and we have to train
people at the DRB.
I have prioritized the training based on the
implementation, because obviously our DDSs need to be trained
and our field office folks. The DDSs need to receive the first
training because that's the first point in the process people
hit. They won't hit the FedRO probably for 3 months, two or 3
months after August, and then the DRB will be obviously much
later than that.
Mr. BRADY. Right. Are we giving you enough resources for
training?
Ms. BARNHART. We feel we're in good shape at this point for
training, we do. We can definitely handle that.
Mr. BRADY. I like the idea of this Federal expert unit, and
especially bringing in both the medical and occupational,
because the change is not so much anymore are you injured, but
what type of work can you go back to, so the occupational is
key.
Why don't we compel complete and full medical records
before the ALJ level? Why don't we compel that before the DDS
level? It seems like the more complete the claimant's
application is, the better we have of making a good decision
early.
Ms. BARNHART. You're absolutely right, and that is really
one of the things that we tried to build into this, the
incentives for doing that, because the fact is--let's just take
a case in point.
If a FedRO overrides a DDS decision, and they do it because
of evidence that they got at their stage of the process, that
could have been gotten by the DDS, that's the kind of
information that's going to go back.
The earlier we decide the case, if it's going to be a yes,
the earlier we get to yes, the less expensive it is for us,
quite frankly, because it's more expensive at each step
administratively, and that thoroughness of having a complete
record is one of the absolute goals.
You know, the main goal is to make the right decision as
early in the process as possible, but to do that you need to
have a complete and well-documented record.
Mr. BRADY. Are there obstacles to completing them earlier
in the process, technical obstacles?
Ms. BARNHART. I think one of the things, in all fairness to
the DDS, is the pressure that's come on the DDSs in, as long as
I can remember for decades, quite frankly, is process the
claims faster and faster and faster. You know, do more, do
more, do more, and do it faster. I do that to some extent, too.
So, I'm not just talking about former commissioners, all of
whom I've known.
What happens is there's a price one pays for that, and what
we're trying to say to the DDSs and the culture change that
I've talked about many times--I've spoken to the National
Association of Disability Examiners (NADE), and to the National
Council of Disability Determination Directors (NCDDD), and
we'll be doing that again this year, but the main point I'm
trying to get across is it may take you a little longer, just
like it takes our claims reps longer to do Electronic
Disability Collect System (EDCS), in the field office than it
did before, but the claim they send to the DDS is a better
claim and the DDS spends less time going back and getting
information that should have been gotten at the field office.
What I've tried to get across to the DDSs is, I understand
you've just been pressured, pressured, pressured, move, move,
move the cases. It may take you longer to do what you're
supposed to do to develop this record, and to get the medical
evidence that needs to be obtained, but in the long run----
Mr. BRADY. You'll save time.
Ms. BARNHART. --the claimant really, what they care about
is if their case goes all the way through and because you
didn't do it, it takes another 5 months at the hearing level,
so we have to look at the whole process, not just in segments.
Mr. BRADY. Okay. Final question.
Obviously, you want to measure the progress on this. One of
the frustrations has been trying to, region-to-region, State-
to-State, there's just disparities in different areas.
Are you building in a data measurement, a feedback system
as it's rolled out in Boston, where we can take a look, more
quickly, more accurately compare how the regions are doing, not
just in approvals, necessarily, but in time, backlog, negative
decisions, feedback.
Ms. BARNHART. Yes. Actually, one of the things that we're
trying to do in terms of the variance issue is by creating the
FedRO, eliminate the inconsistencies and actually make the
process more consistent earlier, and having the FedRO
centralized.
I don't mean centralized like in location, although we're
starting in Falls Church with this first hiring of FedROs.
Eventually, they'll be all around the country in different
locations. We can do that because of eDib, but there will be
central management of the FedRO, which will get away from this
whole notion of this region versus this region and that kind of
thing.
So, we're really trying to get rid of the inconsistencies.
In terms of looking at the outcomes that you talked about,
though, allowances, denials, processing times, all those kinds
of things, we definitely will be tracking that very carefully.
We have a number, a pretty elaborate management information
system to collect just about everything I could possibly
imagine, although this Committee may well think of something I
should have thought of--you seem to always do that. We're doing
our best to try and anticipate what you want to know.
We're going to be tracking it for Boston, and obviously
we'll be still getting the information we have for the other
States, and we'll be able to, look at what the difference is,
yes.
Mr. BRADY. Hopefully, that FedRO,--there should be--this is
a Federal program. There's naturally going to be some small
disparities State to State but there shouldn't be dramatic
ones, you know what I mean, if we're going to consistently
apply and interpret, throughout the country, and that's been
one of the frustrations for everyone in the past.
Before you conclude your testimony, is there anything else
you want to add?
Ms. BARNHART. No, just to say again that I really
appreciate the interest that this Subcommittee has had in this
issue.
It is an undertaking that many people thought was not going
to happen because of the nature of what we had to work with,
and all the issues and all the interests that come to bear in
the disability program, but I do believe that the tone that
this Committee sets through its oversight hearings, looking at
these issues, goes a long way in promoting the cooperative
spirit that I have seen with everybody that I've worked with in
the Congress and outside of the Congress, and I think it's
something that's seen far too little, it's a far too rare
occurrence today.
Mr. BRADY. Right.
Ms. BARNHART. I say that as somebody who came to work in
Washington in 1977 to work in the Senate, and so I truly
appreciate that level of interest, and I just want you to know
that we will continue to provide whatever information you and
your staff have, whatever questions that you have. We want to
be as responsive as possible.
We believe this can work. We are committed to making it
work. We are going to be happy to prove to you that it's
working.
If it's not, if something is not working the way it was
designed, we are going to step in very quickly to address the
issues.
So, thank you.
Mr. BRADY. Right. Well, thank you and good look.
Our next panel will be introduced by the Chairman.
Chairman MCCRERY. [Presiding.] I would invite the next
panel to take their seats.
We have Robert Robertson, Director, Education, Workforce,
and Income Security Issues with the U.S. government
Accountability Office; Marty Ford, Co-Chair, Social Security
Task Force, Consortium for Citizens with Disabilities; Sarah
Bohr, President, National Organization of Social Security
Claimants' Representatives--if we could have a little quiet.
We have Witold Skwierczynski, President, National Council
of SSA Field Operations Locals, American Federation of
government Employees, AFL-CIO, Baltimore, Maryland; James Hill,
President, Chapter 224, National Treasury Employees Union,
Cleveland, Ohio; Judge Ronald Bernoski, President, Association
of administrative law judges, Sussex, Wisconsin; and Gary
Flack, Chairman, Social Security section, Federal Bar
Association, Atlanta, Georgia.
Welcome, everyone, and thank you for coming today.
As you heard with our first witness, your written testimony
will be submitted for the record in its entirety, and we would
like for you to summarize that testimony in about 5 minutes.
You will see in front of you a little box with a green
light. When the green light turns to red, that means your 5
minutes has expired and we would like for you to try to wrap up
at that time if you haven't already.
We will begin this afternoon with Mr. Robertson.
STATEMENT OF ROBERT E. ROBERTSON, DIRECTOR, EDUCATION,
WORKFORCE, AND INCOME SECURITY ISSUES, UNITED STATES GOVERNMENT
ACCOUNTABILITY OFFICE
Mr. ROBERTSON. Mr. Chairman, Mr. Levin--do we have a
working mic here?
Yes, we do. I'll dispense with the tap, tap, tapping, then.
I'm very happy to be here this morning to discuss SSA's
preparations for rolling out its new, revamped disability
determination process.
As you're aware, perhaps painfully so, SSA for many years
has been struggling to address longstanding problems with its
disability claims process in hopes that the DSI process, or
DSI, will improve the timeliness and the quality of its
disability decisions.
Mr. Chairman, I will make just three points this morning,
and in the interests of time and my fellow panel members here,
I'll try to do it very quickly.
First, from our perspective, it appears that the actions
SSA has taken to help facilitate the successful implementation
of the DSI does draw upon many lessons learned from earlier
redesign efforts, and I might humbly add also that they reflect
a number of our past recommendations.
For example, significant aspects of the DSI rollout are
consistent with our recommendations to focus attention on
elements that are critical to rollout's success, such as
quality assurance and computer supports.
Further, SSA's incremental approach to the rollout, which
allows for a year of monitoring and evaluation in one region
before expanding the approach to other regions, is also
consistent with our past recommendations.
Finally, and fundamental to all of this, SSA's top
leadership has shown a commitment to informing affected
stakeholders and listening to their advice and concerns with
respect to the development and implementation of this process.
This type of two-way communication is of course critical to
any successful change management of the magnitude we've been
talking about this morning.
The second point I'd like to make is that while SSA has
taken many positive steps in preparing for implementing DSI in
the Boston region, the rollout schedule is extremely ambitious.
As a result, some parts of the rollout strategy are not yet
fully developed, including a final plan for its evaluation.
For example, we would hope that SSA has a solid monitoring
plan in place once DSI is implemented in Boston. Such a plan is
absolutely crucial to quickly identifying and correcting
problems that surely will surface during the implementation.
Perhaps more importantly, SSA needs a sound evaluation plan
to be in a position of determining whether or not the DSI
changes are accomplishing their broader purpose. That is, are
they producing more quick decisions, are they producing
consistent decisions, that type of thing.
As a quick aside here, I appreciate the questions that came
up early in the hearing, talking just about the evaluation
plans for this rollout. It is something that every opportunity
I get during today's hearing I'm going to emphasize, because I
think it's just absolutely critical.
We also hope that SSA's top management will be vigilant in
ensuring that communication lines stay open during the critical
rollout period in order to fully understand and effectively
address questions and concerns that affected stakeholders may
have.
My last discussion point relates to the elimination of the
Appeals Council and its replacement with a DRB.
Obviously, there's been great concern from a number of
stakeholders who in general have noted that the change could
increase the workload of Federal courts and additionally
results in hardships for claimants in terms of the loss of an
administrative appeal level and difficulties associated with
pursuing their claims in Federal court.
At this point, Mr. Chairman, we're not in a good position
to predict the effects this change will have on Federal court
caseloads or on claimants. Obviously, we and many other people
in this room will be closely following SSA's assessment of the
review board's impact in both of these areas.
I would point out, however, as has been pointed out
earlier, that the immediate impact of this change will be
somewhat softened by SSA's plan to require that the board
review all ALJ decisions in the Boston Region, not just those
selected decisions that involve issues that have historically
posed challenges to accuracy and consistency.
Mr. Chairman, that ends my prepared remarks and I'll be
happy to answer questions at the appropriate time.
[The prepared statement of Mr. Robertson follows:]
Statement of Robert E. Robertson, Director, Education, Workforce, and
Income Security Issues, U.S. Government Accountability Office
Mr. Chairman and Members of the Subcommittee:
Thank you for inviting me today to discuss stakeholder concerns
about various aspects of the Social Security Administration's (SSA) new
Disability Service Improvement process (DSI) and the steps that SSA has
taken to address these concerns. SSA is preparing to implement its new
process first in its Boston region for at least 1 year beginning in
August 2006.
In July 2005, SSA issued a notice of proposed rule making to obtain
public comment on DSI proposals that would fundamentally redesign the
way claims for disability benefits are processed and considered, with
the purpose of improving the accuracy, consistency and fairness of its
disability decisions, and making correct decisions earlier in the
process. After reviewing comments submitted in response to its notice,
SSA issued its final rule in March 2006, codifying many of its proposed
changes. One of the many changes envisioned under DSI is the
elimination of the Appeals Council, which had afforded claimants the
ability to appeal unfavorable decisions made by administrative law
judges (ALJ) to SSA before filing suit with a federal court. Once DSI
is fully implemented, decisions made by the ALJs become the final
agency decision, unless they are selected for review by a new Decision
Review Board. The cases selected for review will be those identified
through use of a statistical model as claims that are complex or prone
to erroneous decisions. As you know, many have expressed concern over
the elimination of the Appeals Council as a forum that claimants could
avail themselves of before resorting to a federal court.
The information I am providing today is based on work that we
conducted between February 22, 2006, and June 2, 2006, as part of
ongoing work in this area, in accordance with generally accepted
government auditing standards. I will be discussing (1) concerns raised
about the replacement of the Appeals Council with the Decision Review
Board and how SSA has responded to them, and (2) steps SSA has taken to
help facilitate a smooth implementation of the DSI process.
To conduct our work, we reviewed a large sample (252 in total) of
the comment letters that were submitted by the public in response to
SSA's notice of proposed rule making and that focused on the
replacement of the Appeals Council with the Decision Review Board. In
addition, we interviewed 10 stakeholder groups--such as claimant
representatives, employee groups, and disability advocacy organizations
that SSA has previously consulted with--to learn more about their
perspectives on the elimination of the Appeals Council as well as on
the near-term rollout of the DSI process in the Boston region. In
addition, we conducted extensive interviews with SSA officials and
reviewed available agency documents to determine their position on and
collect data relevant to eliminating the Appeals Council, as well as
their efforts and plans related to DSI implementation. Further, we
reviewed our past reports on improving SSA's disability process in a
number of areas, including human capital; its electronic records
system--known as eDib; quality assurance; and implementing change and
managing for success. For a more detailed description of our
methodology, please see appendix I.
In summary, we found that the public and stakeholders expressed two
overriding concerns regarding the replacement of the Appeals Council
with the Decision Review board--that the workload of the federal courts
will rise if the council is eliminated and that this change will
present additional hardship for claimants. In our review of the comment
letters submitted to SSA that specifically addressed the elimination of
the Appeals Council, we found that about half expressed concern that
petitions to federal courts would rise, given the council's
termination, and that claimants would lose an additional level of
administrative review. About 40 percent of comments highlighted recent
improvements in the Appeals Council's processes and noted that
eliminating the council would not improve adjudication. Stakeholder
groups we spoke with basically underscored these same two points--that
eliminating the Appeals Council would result in an increase in
disability claims cases that are appealed in federal district courts
and that some claimants may drop meritorious claims rather than pursue
a seemingly complicated and intimidating federal court appeal.
Acknowledging these concerns, SSA contends that DSI will improve
decision making earlier in the process, decrease the time it takes the
agency to reach a final decision, and reduce the need for appeal. SSA
also maintains that because DSI affords claimants the right to appeal
their initially denied claims to reviewing officials who are now
centrally managed, claimants will not experience an overall loss in
administrative review at the federal level. At the same time, both
stakeholders and SSA believe it will be important for the agency to
closely monitor DSI in order to evaluate its impact on claimants and
the courts.
SSA has made substantial preparation for DSI on all fronts related
to successful implementation--human capital, technical infrastructure,
and quality assurance. However, the timetable is ambitious and much
work remains. While stakeholders have expressed concern that SSA will
not be able to hire and sufficiently train staff in time for the new
process to get under way, we found that the agency has, to date, posted
hiring announcements for new positions and developed training packages
for onboard staff. SSA is also taking steps, as we had previously
recommended, to ensure that key technical supports, particularly the
electronic disability system known as eDib, are in place for Boston
staff to adjudicate claims under the new process. At the same time, the
agency has allowed itself very little time to identify and resolve any
potential glitches that may arise before the Boston rollout in August.
Regarding quality assurance, SSA has taken several steps to lay a
foundation for a more cohesive program, as we had recommended in our
earlier reports. For example, features of the new DSI process--
including centralizing quality assurance reviews of initial state
disability determination service (DDS) decisions, establishing a
Decision Review Board for hearing decisions, and developing several
tools to aid decision writing--may address problems with decisional
consistency that we have identified in the past by allowing for a
cohesive analysis of decisions. In addition, SSA officials plan to
monitor and evaluate the execution of the Boston rollout, although some
performance measures for this initiative, such as for assessing a new
medical expert system that is part of DSI, are still unclear to us, and
mechanisms for delivering feedback to staff on the clarity and
soundness of their decision writing have not yet been fully developed.
Finally, SSA is undertaking other, broad steps that we consider
consistent with effective change management strategies that we have
previously recommended. For example, the decision to implement the new
system first on a small scale--that is, in one small region--before
introducing it elsewhere should allow for careful integration of the
new systems and staff and for working out problems before they become
serious impediments to success. Additionally, SSA has employed a
proactive, collaborative approach with the stakeholder community in
both designing and implementing the new disability determination
process.
Background
SSA operates the Disability Insurance (DI) and Supplemental
Security Income (SSI) programs--the two largest federal programs
providing cash benefits to people with disabilities. The law defines
disability for both programs as the inability to engage in any
substantial gainful activity by reason of a severe physical or mental
impairment that is medically determinable and is expected to last at
least 12 months or result in death. In fiscal year 2005, the agency
made payments of approximately $126 billion to about 12.8 million
beneficiaries and their families. We have conducted a number of reviews
of SSA's disability programs over the past decade, and the agency's
management difficulties were a significant reason why we added
modernizing federal disability programs to our high-risk list in 2003.
In particular, SSA's challenges include the lengthy time the agency
takes to process disability applications and concerns regarding
inconsistencies in disability decisions across adjudication levels and
locations that raise questions about the fairness, integrity, and cost
of these programs.
The process SSA uses to determine that a claimant meets eligibility
criteria--the disability determination process--is complex, involving
more than one office and often more than one decision maker. Under the
current structure--that is, DSI notwithstanding--the process begins at
an SSA field office, where an SSA representative determines whether a
claimant meets the programs' nonmedical eligibility criteria. Claims
meeting these criteria are forwarded to a DDS to determine if a
claimant meets the medical eligibility criteria. At the DDS, the
disability examiner and the medical or psychological consultants work
as a team to analyze a claimant's documentation, gather additional
evidence as appropriate, and approve or deny the claim. A denied
claimant may ask the DDS to review the claim again--a step in the
process known as reconsideration. If the denied claim is upheld, a
claimant may pursue an appeal with an ALJ, who will review the case. At
this step, the ALJ usually conducts a hearing in which the claimant and
others may testify and present new evidence. In making the disability
decision, the ALJ considers information from the hearing and from the
DDS, including the findings of the DDS's medical consultant. If the
claimant is not satisfied with the ALJ decision, the claimant may
request a review by SSA's Appeals Council, which is the final
administrative appeal within SSA. If denied again, the claimant may
file suit in federal court.
In March 2006, SSA published a final rule to establish DSI, which
is intended to improve the accuracy, consistency, and fairness of
decision making and to make correct decisions as early in the process
as possible. While DDSs will continue to make the initial
determination, claims with a high potential for a fully favorable
decision will be referred to a new Quick Disability Determination (QDD)
process. If the claimant is dissatisfied with the DDS's initial
determination or QDD, the claimant may now request a review by a
federal reviewing official--a new position to be staffed by centrally
managed attorneys. The federal reviewing official replaces the
reconsideration step at the DDS level, and creates a new level of
federal review earlier in the process. The claimant's right to request
a hearing before an ALJ remains unchanged. However, the Appeals Council
is eliminated under the new process, and as a result the ALJ's decision
becomes the final agency decision except in cases where the claim is
referred to the new Decision Review Board. Claims with a high
likelihood of error, or involving new areas of policy, rules, or
procedures, are candidates for board review. \1\ If the board issues a
new decision, it becomes the final agency decision. As before,
claimants dissatisfied with the final agency decision may seek judicial
review in federal court. DSI also includes the introduction of new
decision-writing tools that will be used at each adjudication level,
and are intended to streamline decision making and facilitate training
and feedback to staff. In addition, SSA is creating a Medical and
Vocational Expert System, staffed by a unit of nurse case managers who
will oversee a national network of medical, psychological, and
vocational experts, which are together responsible for assisting
adjudicators in identifying and obtaining needed expertise. In its
final rule, SSA indicated that DSI will further be supported by
improvements, such as a new electronic disability system and an
integrated, more comprehensive quality system.
---------------------------------------------------------------------------
\1\ According to SSA, for the first year of implementation in the
Boston region, the board will review all ALJ decisions.
---------------------------------------------------------------------------
As noted, the changes introduced by DSI were codified in SSA's
final rule on the subject. Table 1 highlights these new features and
associated elements.
Table 1: Key Aspects of DSI
----------------------------------------------------------------------------------------------------------------
New feature Associated elements
----------------------------------------------------------------------------------------------------------------
Quick Disability Determinations Expedited processing for certain clear-cut cases.
---------------------------------------------------------------------------
Use of a predictive model to screen for cases that have a greater
likelihood of allowance and to act on those claims within 20 days.
---------------------------------------------------------------------------
Nationally standardized training for examiners in DDS on this process.
---------------------------------------------------------------------------
Medical or psychological experts must verify that the medical evidence is
sufficient to determine that the impairment meets the standards.
----------------------------------------------------------------------------------------------------------------
Medical and Vocational Expert System A national network of medical, psychological, and vocational experts who
will be available to assist adjudicators throughout the agency.
---------------------------------------------------------------------------
The national network will be overseen by a new Medical and Vocational
Expert Unit.
---------------------------------------------------------------------------
All experts affiliated with the network must meet qualifications, which
are still under development.
----------------------------------------------------------------------------------------------------------------
Federal reviewing officials A cadre of federal reviewing officials--all attorneys--can affirm,
reverse, or modify appealed DDS decisions. Federal reviewing officials
cannot remand cases to the DDSs for further review, but they can ask that
the DDSs provide clarification or additional information for the basis of
their determination.
---------------------------------------------------------------------------
Reviewing officials may obtain new evidence and claimants can submit
additional evidence at this stage. If necessary, the reviewing official
may issue subpoenas for documents.
---------------------------------------------------------------------------
If a reviewing official disagrees with the DDS decision, or if new
evidence is submitted, he or she must consult with an expert in the
expert system.
----------------------------------------------------------------------------------------------------------------
Decision Review Board The Decision Review Board will replace the Appeals Council. It will be
composed of individuals selected by SSA's Commissioner, and each member
will serve a designated term.
---------------------------------------------------------------------------
The board will review both allowances and denials, and the board has the
ability to affirm, modify, reverse, or remand ALJ decisions.
---------------------------------------------------------------------------
A new sampling procedure--or predictive model--will identify ALJ decisions
that are error-prone or complex for the board's review. The predictive
model, which is still under development, is expected to select 10 to 20
percent of ALJ decisions for the board's review.
---------------------------------------------------------------------------
The board has 90 days from the date the claimant receives notice of board
review to make its final decision. If it fails to act within that period,
the ALJ decision remains SSA's final decision.
---------------------------------------------------------------------------
A claimant may submit a written statement to the board within 10 days of
receiving notice that the board will review his or her case, explaining
why he or she agrees or disagrees with the ALJ's decision. This statement
may be no longer than 2,000 words.
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis.
Note: While DSI does not change the structure or scope of ALJ reviews, the new process has several elements that
affect hearings at the ALJ level. Namely, SSA will notify claimants at least 75 days prior to the hearing of
the date and time for which the hearing has been scheduled. Additionally, claimants have to submit evidence at
least 5 business days before the hearing date itself.
Implementation of DSI will begin on August 1, 2006, in the Boston
region, which includes the states of Connecticut, Massachusetts, Maine,
New Hampshire, Rhode Island, and Vermont.\2\ Therefore, only those
claims filed with SSA in the Boston region on or after August 1 will be
subject to the new process.\3\ All claims currently in process in the
Boston region, and claims filed elsewhere, will continue to be handled
under current procedural regulations until SSA takes further action.\4\
In addition, for cases filed in the Boston region during the first year
of DSI implementation, all ALJ decisions--both allowances and
disallowances--will be reviewed by a new Decision Review Board with
authority to affirm, modify, reverse, or remand decisions to the
ALJ.\5\ Since DSI will only affect new claims initiated in the Boston
region, claimants whose cases were already in process before August--as
well as those filing outside the Boston region--will still have access
to the Appeals Council.
---------------------------------------------------------------------------
\2\ According to these regulations, SSA will publish a notice in
the federal register when it decides to roll out DSI in another region,
but this notice will not be subject to the formal rule-making process.
\3\ If a claimant moves to another region from the Boston region,
and initially filed the claim in the Boston region on or after August
1, 2006, the conditions of the DSI process will apply to that claimant
no matter where he or she moves. If a claimant initially filed
elsewhere and then moves to the Boston region, the DSI process will not
apply to him or her.
\4\ These procedures can be found in the Code of Federal
Regulations, 20 CFR 404.900-404.999d and 416.1400-416.1499.
\5\ According to SSA, the predictive model used to identify cases
that are complex or error-prone will be tested against the board's
review of all cases during the rollout in Boston. The model will be
tested continually until it has been proven reliable.
---------------------------------------------------------------------------
Concerns Include Fear of Increased Court and Claimant Hardship, while
SSA Believes Its New Process Will Reduce the Need for Appeal
In their written comments to SSA and discussions with us, public
and stakeholder groups, such as claimant representatives and disability
advocacy groups, expressed two broad areas of concern regarding the
replacement of the Appeals Council with the Decision Review Board: (1)
potential for increasing the workload of the federal courts and (2)
anticipated hardship for claimants in terms of loss of an
administrative appeal level and difficulties associated with pursuing
their claims in federal court. SSA's response to concerns regarding the
federal court workload is that all changes associated with new DSI
process--taken together--should reduce the need for appeal to the
federal courts. At the same time, SSA plans to implement this final
step gradually and with additional safeguards to minimize the impact on
the courts. In response to concerns about the loss of appeal rights,
SSA contends that under the new DSI process, claimants will have a new
level of federal review earlier in the process, and should experience a
decline in the amount of time it takes to receive a final agency
decision without being overly burdened by the Decision Review Board
under the new process.
Public and Stakeholders Anticipate a Larger Caseload for Courts, while
SSA Maintains That Better Decisions Earlier in the Process Will
Reduce the Need for Appeal
Concerns expressed in comment letters to SSA and in our interviews
revolved largely around the possibility that the replacement of the
Appeals Council with the Decision Review Board would result in rising
appeals to the federal courts. Specifically, more than half of the 252
comment letters we reviewed indicated that the Appeals Council provides
an important screening function for the federal courts, and that its
replacement with the Decision Review Board could result in rising
caseloads at the federal court level. Stakeholder groups with whom we
spoke reiterated this concern. With the imminent rollout in the Boston
region, several stakeholders suggested that SSA closely monitor the
effectiveness of the board and the impact of this change on the federal
courts.
Data from SSA suggest that the Appeals Council is both screening
out a number of cases that might otherwise have been pursued in the
federal courts and identifying many claims that require additional
agency analysis. Between 2001 and 2005, the number of disability cases
appealed to SSA's Appeals Council rose 13 percent. At the same time,
the number of disability cases filed with the federal courts (both DI
and SSI) declined 9 percent.\6\ Figure 1 illustrates the volume of
receipts at both the federal court and the Appeals Council levels
during this period.
---------------------------------------------------------------------------
\6\ According to data from the U.S. District Courts, claims from
15,416 disability insurance cases (both DI and SSI), or 6 percent of
the court's total workload, were filed during the 12-month period
ending March 31, 2005--down from 16,921 in 2001.
---------------------------------------------------------------------------
Figure 1: Federal Court and Appeals Council Receipts between 2001 and
2005
Note: Data on federal court cases are for the 12-month periods
ending March 31 of the named year. Data on Appeals Council cases are
collected on a fiscal year basis.
Further, the Appeals Council consistently remanded about 25 percent
of the claims it reviewed between 2001 and 2005 for further
adjudication by the administrative law judge--see figure 2--providing
more evidence that the Appeals Council is identifying a significant
number of claims that require additional agency review and
modification.
Figure 2: Disposition of Appeals Council Cases, by Fiscal Year, 2001-
2005
Note: The Appeals Council will deny review if cases do not meet the
following criteria--there does not appear to be an abuse of discretion
by the ALJ; there is no error of law; the actions, findings, or
conclusions of the ALJ are supported by substantial evidence; or the
case does not present a broad policy or procedural issue that may
affect public interest. If the Appeals Council denies review, the ALJ
decision stands as the final agency decision.
SSA believes that the implementation of DSI as an entire process
will help it make the correct disability determination at the earliest
adjudication stage possible and thereby reduce the need for appeal.
According to SSA, several elements of the DSI process will contribute
to improved decision making. These include the federal reviewing
official position, which presents an enhanced opportunity for the
agency to thoroughly review case records--with the assistance of
medical and vocational experts--early in the process, as well as new
online policy guidance and new tools to aid decision writing, which
will be used at each adjudication level to facilitate consistency and
help the agency identify and correct errors more quickly. Last, SSA
believes that the number of requests for voluntary remands that SSA
makes to the federal courts is an indicator that the Appeals Council is
not fully addressing errors in the case or otherwise reviewing the case
effectively so as to prevent the federal courts from reviewing appeals
that should have been handled administratively.\7\ SSA believes the
Decision Review Board will more effectively screen cases from federal
court review by focusing on error-prone claims identified through a
predictive model.
---------------------------------------------------------------------------
\7\ According to SSA officials, request for voluntary remands occur
when a claimant files an appeal with the federal court and SSA's Office
of General Counsel determines that the case is not defensible.
---------------------------------------------------------------------------
SSA acknowledges that the agency cannot predict the likely impact
on the federal courts' workload and cannot prevent denied claimants
from filing suit with the federal courts.\8\ To reduce the likelihood
of too many appeals reaching the federal court level, SSA stated in its
final rule that it is pursuing a gradual rollout by implementing the
DSI process in one small region--the Boston region--and plans to have
the board initially review all of the ALJ decisions in that region.
According to SSA officials, the board's review of all ALJ decisions
will allow them to test the efficacy of the new predictive model, to
help ensure that the model is identifying the most-error prone cases
that might otherwise find their way to federal court. Further, SSA
officials told us that they are working with the federal court system
to develop a way to gauge changes in the court's caseload. Finally,
SSA's internal counsel told us that the agency has begun a systematic
data collection process to better understand the circumstances
surrounding remands from the federal court. To date, SSA attorneys have
analyzed the reasons for federal court remands in more than 1,600
cases, but they are still working on a quality control mechanism to
ensure that their information has been entered properly and are
therefore unwilling to report on the results of their analysis at this
time. \9\
---------------------------------------------------------------------------
\8\ In the 1990s, SSA conducted a pilot--the Full Process Model--
which included, among other changes, eliminating the Appeals Council.
According to SSA officials, although they collected some data on the
number of direct appeals from the ALJ level to the federal courts, the
agency discontinued its pilot before collecting sufficient data for a
complete assessment of the model's impact.
\9\ SSA officials also indicated that they intend to develop a
predictive model, to build on current efforts, that identifies error-
prone cases among those denied by ALJs that are subsequently remanded
by the federal courts back to SSA for further adjudication.
---------------------------------------------------------------------------
Public and Stakeholders Anticipate Increased Hardship for Claimants,
but SSA Believes the New Federal Reviewing Official Position
Will Improve Decision Making Earlier
In their comments on the proposed rule and in subsequent
conversations with us, stakeholders expressed concern that eliminating
the Appeals Council would cause claimants hardship both by eliminating
the opportunity to appeal an ALJ decision to the Appeals Council and by
increasing the cost and difficulty associated with pursuing cases in
federal court.
In particular, 48 percent of the 252 comment letters we reviewed
expressed concern that the replacement of the Appeals Council with the
Decision Review Board would represent a loss in claimant appeal rights
within SSA. These letters, as well as subsequent discussions with
stakeholders, emphasized the concern that claimants will not have a say
in which cases are reviewed by the board. Further, stakeholders were
concerned that in the Boston region, claimants whose cases were allowed
at the ALJ level could be overturned by the board, presenting
additional hardship for claimants as they await a decision.
In addition, claimant representatives and disability advocacy
organizations are concerned that appealing at the federal court rather
than Appeals Council level would be costlier and more intimidating for
claimants. For example, there is a filing fee associated with the
federal courts, and stakeholders commenting on SSA's final rule said
that the filing procedure is more complicated than that required for an
appeal before the Appeals Council.\10\ In addition, claimants seeking
representation must find attorneys who, among other requirements, have
membership in the district court bar in which the case is to be filed.
As a result of these hardships, claimant representatives and disability
advocacy organizations, in particular, were concerned that claimants
would drop meritorious claims rather than pursue a seemingly
complicated and intimidating federal court appeal.
---------------------------------------------------------------------------
\10\ To appeal to the Appeals Council, applicants need only
complete a one-page form and return it to SSA. For the federal courts,
there is a $250 filing fee. Although this fee can be waived (based on
need), claimant representatives and disability advocates assert that
the fee may be cost-prohibitive for some claimants, and representing
oneself at the federal court level is challenging.
---------------------------------------------------------------------------
About 40 percent of the comment letters asserted that the amount of
time the Appeals Council spent adjudicating cases--also referred to as
its processing time--has improved recently, and letter writers did not
believe that terminating the Appeals Council would improve the
adjudicative process. Although SSA has contended that the Appeals
Council has historically taken too much time without providing
claimants relief, stakeholders' claims that the Appeals Council
processing time has decreased significantly in recent years was
confirmed by SSA data--see figure 3. In light of these concerns, many
stakeholder groups we spoke with suggested that SSA should roll out the
Decision Review Board carefully and closely evaluate outcomes from
claimants' perspectives.
Figure 3: Appeals Council Processing Time and Volume of Dispositions,
by Fiscal Year, 2001-2005
Note: SSA does not track how many of the cases remanded by the
Appeals Council result in denials that are appealed again to the
council.
In their final rule and in conversations with us, SSA officials
stated that the new process still affords claimants comparable appeal
rights along with the promise of a faster agency decision.
Specifically, SSA stated that DSI includes two federal levels of
thorough case development and administrative review--one by the new
federal reviewing official and another by an ALJ at the hearings level.
SSA contends that the new federal reviewing official position is a
marked departure from the reconsideration step, in that the position
will be managed centrally and staffed by attorneys specifically charged
with enhancing the development of a case and working with a new cadre
of medical and vocational experts to make decisions. SSA believes that
this new position, along with other changes in the new process, will
result in many more cases being correctly adjudicated earlier in the
process, resulting in fewer decisions appealed and reviewed by ALJs at
the hearings level.
SSA also argues--recent improvements in processing time
notwithstanding--that the elimination of the Appeals Council step will
reduce the length of time it takes the agency to reach a final decision
on behalf of the claimant. Further, SSA maintains that the replacement
of the Appeals Council with the board will not be prejudicial to or
complicated for the claimant. SSA indicated that claimants will have an
opportunity to submit written statements to the Decision Review Board,
thus providing another chance to assert their circumstances. SSA
maintains that aside from the written statement, further action is not
required on the part of the claimant until the board issues its
decision.
SSA has told us that it plans to monitor stakeholder concerns in
several ways. For example, SSA plans to track the length of time it
takes to reach final decisions as well as the allowance rate. SSA also
plans to review written statements submitted by claimants to help
assess the validity of the board's predictive model.\11\
---------------------------------------------------------------------------
\11\ Specifically, SSA plans to compare the contents of these
statements to the results of the predictive model. If SSA determines
that using claimant statements will improve the model, SSA would
consider revising the model to incorporate information from these
documents.
---------------------------------------------------------------------------
SSA Has Taken Constructive Steps to Implement the New DSI Process, but
Its Schedule Is Ambitious and Many Details Are Not Yet
Finalized2
SSA has prepared in significant ways for DSI, but the agency's
timetable is ambitious and substantive work remains. SSA has moved
forward in key areas that should underpin the new system--human capital
development, technical infrastructure, and quality assurance. However,
some essential measures remain under development, particularly for
quality assurance. Nevertheless, on balance, the agency has begun to
employ a number of change management strategies we recommended earlier
for successful transitioning.
SSA Has Moved to Hire and Train Staff, but It Faces Short Timetables
While stakeholders have expressed concern that SSA will not be able
to hire and sufficiently train staff in time for the new process, we
found that the agency has taken a number of steps in this area. With
respect to hiring for new positions, the agency has already developed
position descriptions and posted hiring announcements for nurse case
managers, who will work in the new Medical and Vocational Expert Unit,
as well as for federal reviewing officials. To date, SSA officials have
begun assessing more than 100 eligible applicants for the reviewing
official slots, and expect to hire 70 by late June and another 43 in
early 2007. SSA officials also said they posted announcements to hire
nurse case managers, and that they expect to hire as many as 90 before
the end of the rollout's first year in the Boston region.
SSA officials also said that the agency has posted announcements to
hire support staff for both the reviewing officials and nurse case
managers, but the exact number SSA is seeking to hire has not been
decided. Several stakeholders we spoke with were particularly concerned
that SSA will need to hire or otherwise provide adequate support staff
for reviewing officials to ensure their effectiveness. Specifically,
several of the ALJs we interviewed told us that at the hearings level,
judges and their staff currently spend significant time developing case
files. They noted that if the reviewing official position is designed
to focus on case development, then attorneys in this role will need
support staff to help them with this time-consuming work.
With respect to training, the agency has been creating a variety of
training materials for new and current staff, with plans to deliver
training at different times, in different ways. SSA officials reported
working on development of a uniform training package for all staff with
some flexible components for more specialized needs. Specifically,
about 80 percent of the package is common content for all employees,
and 20 percent will be adaptable to train disability examiners, medical
experts, ALJs, and others involved in the adjudication process. SSA
officials said they developed the package with the federal reviewing
officials in mind, but also with an eye toward a centralized training
content that could apply to current and new staff down the line. SSA
plans to provide the full training package, which constitutes about 8
weeks of course work and 13 modules, to reviewing officials in late
June, once all attorneys for that position are hired. Among the
sessions included are the basics of the disability determination
process, eDib and its use, medical listings and their application, and
decision writing.
Given that the rule was finalized in March and rollout is set for
August, agency timetables for hiring, training, and deploying more than
100 new staff--as well as for training existing examiners--in the six
states in the Boston region are extremely short. SSA officials have
acknowledged the tight time frame, but hope to deliver training by
using more than one medium--in person, online, or by video. SSA still
expects to accomplish all hiring and training for the Boston region
staff in time for an August 1 launch of the new process.
SSA Has Readied eDib for the Boston Region, but Time for Resolving
Last-Minute Glitches before Rollout Will Be Limited
SSA has also taken steps, as we had previously recommended, to
ensure that key technical supports, particularly an electronic
disability case recording and tracking system known as eDib, are in
place in time for Boston staff to adjudicate claims under DSI
electronically. The agency has made a variety of efforts to familiarize
employees with the system and facilitate their ability to use it as
early as possible. First, SSA positioned the Boston region for a fast
transition to eDib by reducing the region's paper case backlog.
According to a Boston region ALJ, pending case records are being
converted now to familiarize judges and decision writers with the eDib
system so they will be comfortable with it when new cases reach that
level after August 1. Then SSA worked with Boston region staff to
certify that the region's DDS offices were ready for full eDib
implementation.
According to claimant representatives, SSA has also worked to
facilitate their transition to eDib, and according to SSA officials,
the agency has developed a system called Electronic Records Express to
facilitate medical providers' submission of records to SSA. A
stakeholder group of claimant representatives told us that SSA has
offered them training and that they have met regularly with agency
staff to smooth out eDib issues, such as difficulties associated with
the use of electronic folders--electronic storage devices that replace
paper folders as the official record of evidence in a claimant's case
file. This stakeholders group also reported that its members have
voluntarily coordinated with SSA to test new techniques that might
further facilitate eDib implementation.
SSA has also been developing electronic templates to streamline
decision writing. ALJs have already received some training on theirs,
which is known as the Findings Integrated Template. According to SSA
officials, this template is now used, voluntarily, by ALJs nationwide,
after months of extensive testing and refinement. For DDS-level
decisions, SSA is designing a template--called the Electronic Case
Analysis Tool (E-CAT)--which it expects to be partially operational by
July and fully implemented by November. DDS examiners in the Boston
region will receive training on the tool in July and will also receive
training prior to then on the elements of sound decision making. A
similar tool is in development for the reviewing officials.
While SSA officials expressed confidence in having technical
supports sufficiently in place in time for implementation of DSI in
August, unanticipated problems associated with new technology may
challenge their ability to do so. In addition to eDib and E-CAT, SSA is
implementing other new software systems to support the rollout (such as
the predictive models and electronic medical records transmission)--any
one of which may involve unexpected problems. For example, in 2005 we
reported that a number of DDSs were experiencing operational slowdowns
and system glitches associated with the new eDib system.\12\ It remains
to be seen whether the Boston region experiences similar problems with
eDib, or problems with other new systems, and whether SSA will be able
to resolve technical issues that may arise before implementation begins
in August.
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\12\ GAO, Electronic Disability Claims Processing: SSA Is
Proceeding with Its Accelerated Systems Initiative but Needs to Address
Operational Issues, GAO-05-97 (Washington, D.C.: Sept. 23, 2005).
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SSA Is Improving Its Quality Assurance System as Part of DSI Roolout,
although Key Elements Have Yet to Be Revealed
SSA is taking steps to improve its quality assurance system that
have potential for improving the accuracy and consistency of decisions
among and between levels of review, in a manner that is consistent with
our past recommendations. As early as 1999, GAO recommended that in
order to improve the likelihood of making improvements to its
disability claims process, SSA should focus resources on initiatives
such as process unification and quality assurance, and ensure that
quality assurance processes are in place that both monitor and promote
the quality of disability decisions\13\. Consistent with these
recommendations, many of SSA's current efforts involve adding steps and
tools to the decision-making process that promote quality and
consistency of decisions and provide for additional monitoring and
feedback. While these developments are promising, many important
details of SSA's quality assurance system have yet to be finalized or
revealed to us.
---------------------------------------------------------------------------
\13\ GAO, SSA Disability Redesign: Actions Needed to Enhance Future
Progress, GAO/HEHS-99-25 (Washington, D.C.: Mar. 12, 1999).
---------------------------------------------------------------------------
SSA has recently elevated responsibility for its quality assurance
system to a new deputy-level position and office--the Office of Quality
Performance. This office is responsible for quality assurance across
all levels of adjudication. Listed below are new aspects of the quality
assurance system that this office oversees and that hold promise for
promoting quality and consistency of decisions.
SSA will continue to provide accuracy rates for DDS
decisions, but these accuracy rates will be generated by a centralized
quality assurance review, replacing the agency's older system of
regionally based quality review boards and thereby eliminating the
potential differences among regional reviews that were a cause for
inconsistent decisions among DDSs.
As part of the DSI rollout, SSA plans to incorporate new
electronic tools for decision writing to be used by disability
examiners, federal reviewing officials, and ALJs. The tools are
intended to promote quality in two ways. First, the tools will require
decision makers to document the rationale behind decisions in a
consistent manner while specifically addressing areas that have
contributed to errors in the past, such as failing to list a medical
expert's credentials or inaccurately characterizing medical evidence.
Second, the tools will help provide a feedback loop, by which
adjudicators and decision writers can learn why and under what
circumstances their decisions were remanded or reversed. SSA officials
told us that once the tools are in full use, the Office of Quality
Performance will collect and analyze their content to identify errors
or areas lacking clarity. They also plan to provide monthly reports to
regional managers in order to help them better guide staff on how to
improve the soundness of their decisions and the quality of their
writing.\14\
---------------------------------------------------------------------------
\14\ The purpose of this tool is consistent with GAO's prior
recommendations that SSA develop a more focused and effective strategy
for ensuring uniform application of SSA's guidance and to improve
consistency of decisions. GAO, Social Security Administration: More
Effort Needed to Assess Consistency of Disability Decisions, GAO-04-656
(Washington, D.C.: July 2, 2004).
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The establishment of the Decision Review Board, with
responsibility for reviewing ALJ decisions, is intended to promote
quality and consistency of decisions in two ways. First, once DSI is
rolled out nationwide, the board will be tasked to review error-prone
ALJ decisions with the intent of further ensuring the correctness of
these decisions before they are finalized. Second, during the initial
rollout phase, SSA plans to have the board review all ALJ decisions to
verify that the predictive model used to select error-prone cases is
doing so as intended. Importantly, both the tools and the board's
assessment are consistent with our prior recommendations that SSA
engage in more sophisticated analysis to identify inconsistencies
across its levels of adjudication and improve decision making once the
causes of inconsistency among them have been identified.\15\
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\15\ GAO-04-656.
In addition to these actions, SSA told us it plans to measure
outcomes related to how DSI is affecting claimants, such as allowance
rates and processing times at each adjudication stage, and the
proportion of cases remanded from the federal courts and the rationales
for these remands. Further, officials told us they will work with the
federal courts to track changes in their workload. SSA officials also
told us they are working to monitor changes in costs associated with
the new DSI process, in terms of both the administrative costs of the
process, as well as its overall effect on benefit payments. Officials
also said that SSA will track the length of time it takes the agency to
reach a final decision from the claimant's perspective, which we have
recommended in the past.\16\ Although SSA officials told us that ALJ
accuracy rates will be generated from the board's review of all ALJ
decisions, they said they were not yet certain how they will measure
these rates once DSI is rolled out nationwide and the board is no
longer reviewing all ALJ decisions.
---------------------------------------------------------------------------
\16\ GAO, Observations on the Social Security Administration's
Fiscal Year 1999 Performance Report and Fiscal Year 2001 Performance
Plan, GAO/HEHS-00-126R (Washington, D.C.: June 30, 2000).
---------------------------------------------------------------------------
While these developments are promising, aspects of these changes
and of SSA's plans to monitor the DSI implementation have either not
been finalized or not been revealed to us. For example, SSA has not yet
revealed the types of reports it will be able to provide decision
makers based on the decision-writing tools. In addition, while SSA
plans to measure the effectiveness of the new process, its timeline for
doing so and the performance measures it plans to use have not been
finalized. According to SSA officials, potential measures include how
well the predictive models have targeted cases for quick decisions at
the initial DDS level or error-prone cases for the board, and whether
feedback loops are providing information that actually improves the way
adjudicators and decision writers perform their work.
SSA Has Employed Other Change Management Practices to Implement DSI
SSA's efforts and plans show commitment to implementing DSI
gradually, using tested concepts, involving top-level management, and
communicating frequently with key stakeholders--practices that adhere
closely to our prior recommendations on effective change management
practices.
With regard to gradual implementation, we had previously suggested
that SSA test promising concepts in a few sites to allow for careful
integration of the new processes in a cost-effective manner before
changes are implemented on a larger scale.\17\ SSA's decision to
implement DSI in one small region is consistent with this
recommendation. SSA officials told us they selected Boston because it
represents the smallest share of cases reviewed at the hearings level
and because it is geographically close to SSA's headquarters to
facilitate close monitoring. While SSA officials acknowledged that
unanticipated problems and issues are likely to arise with
implementation, they assert that they will be able to identify major
issues in the first 60 to 90 days. SSA officials believe this will give
them plenty of time to make changes before rollout begins in a second
region. SSA has also indicated that it plans to roll DSI out next in
another relatively small region.
---------------------------------------------------------------------------
\17\ GAO, SSA Disability Redesign: Actions Needed to Enhance Future
Progress, GAO/HEHS-99-25 (Washington, D.C.: March 12, 1999) and GAO,
Correspondence to Jo Anne Barnhart, Commissioner of the Social Security
Administration. (Washington, D.C.: Dec. 19, 2003).
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Also consistent with our past recommendations, SSA officials noted
that some new elements of DSI have been tested prior to integration.
For example, the ALJ tool for decision writing has been tested
extensively during development, and they anticipate having fewer
challenges when similar tools are used more widely. In addition, SSA
has said that it has rigorously tested its model related to the Quick
Disability Determination System and that it will continue to check the
selection of cases and monitor the length of time it takes for quick
decisions to be rendered.
SSA's efforts and plans are also consistent with effective change
management practices in that they ensure the commitment and involvement
of top management.\18\ Specifically, SSA's Commissioner first proposed
DSI-related changes in September 2003, and the agency began
restructuring itself soon after the rule was finalized. In addition,
SSA created a deputy-level post for its new Office of Quality
Performance and appointed a new Deputy Commissioner in its newly
created Office of Disability Adjudication and Review, which oversees
the hearing and appeals processes.
---------------------------------------------------------------------------
\18\ GAO, Business Process Reengineering Assessment Guide, GAO/
AIMD-10.1.15 (Washington, D.C.: May 1997).
---------------------------------------------------------------------------
We have also encouraged top managers to work actively to promote
and facilitate change, and SSA appears to be adhering to these
principles as well.\19\ For example, SSA officials told us that the
Deputy Commissioners from SSA's offices of Personnel and Human Capital
have collaborated with their counterparts in policy units to develop
position descriptions and competencies for nurse case managers and
federal reviewing officials. According to SSA officials, these leaders
are also collaborating to develop interview questions for eligible
candidates. Further, SSA officials told us their new human capital plan
will be released sometime in July and that it will emphasize the goals
of DSI, as well as the personnel changes that will accompany it.
---------------------------------------------------------------------------
\19\ GAO/AIMD-10.1.15 and GAO, Results-Oriented Cultures:
Implementation Steps to Assist with Mergers and Organizational
Transformations, GAO-03-669 (Washington, D.C.: July 2, 2004).
---------------------------------------------------------------------------
Finally, SSA's communication efforts with stakeholders align with
change management principles in several respects. For example, SSA has
employed a proactive, collaborative approach to engaging the
stakeholder community both during DSI's design and in its planning for
implementation in order to explain why change is necessary, workable,
and beneficial. Even before the notice of proposed rule making on DSI
was published, SSA began to meet with stakeholder groups to develop the
proposal that would eventually shape the new structure. Then, once the
proposed rule was issued, SSA officials told us they formed a team to
read and analyze the hundreds of comment letters that stakeholders
submitted. In addition, they conducted a number of meetings with
external stakeholders to help the agency identify common areas of
concern and develop an approach to resolving the issues stakeholders
raised before rollout began. According to SSA officials responsible for
these meetings, the Commissioner attended more than 100 meetings to
hear stakeholder concerns directly. Further, SSA recently scheduled a
meeting for early July with claimant representatives to discuss that
group's particular concerns about how the new process will affect their
work and their disability clients. SSA officials told us that senior-
level staff will lead the meeting and that about 100 claimant
representatives from the Boston region will attend.
In addition, SSA officials have also worked to ensure that there
are open lines of communication with its internal stakeholders, thereby
ensuring that disability examiners and staff in the Boston region are
knowledgeable about DSI-related changes. For example, SSA solicited
comments and questions from the Boston region's staff about the
specifics of the rollout and held a day-long meeting in the region, led
by Deputy Commissioners, to respond to these concerns.
Conclusding Observations
For some time, SSA has been striving to address long-standing
problems in its disability claims process. From our perspective, it
appears that SSA is implementing the new claims process by drawing upon
many lessons learned from past redesign efforts and acting on, or at
least aligning its actions with, our past recommendations. For example,
significant aspects of the DSI rollout are consistent with our
recommendations to focus resources on what is critical to improving the
disability claims process, such as quality assurance and computer
support. SSA's incremental approach to implementing DSI--taking a year
to monitor the process and testing new decision-writing tools, for
example--is also consistent with our recommendation to explore options
before committing significant resources to their adoption. Thus, the
agency is positioning itself to make necessary modifications before
implementing the new process in subsequent locations. Finally, and
fundamental to all of this, SSA's top leadership has shown a commitment
to informing affected stakeholders and listening to their advice and
concerns with respect to the development and implementation of this
process.
While SSA's steps and plans look promising, we want to stress the
importance of diligence and follow-through in two key areas. The first
is quality assurance, which entails both effective monitoring and
evaluation. A solid monitoring plan is key to helping SSA quickly
identify and correct problems that surface in the Boston rollout,
because any failure to correct problems could put the entire process at
risk. An evaluation plan is critical for ensuring that processes are
working as intended and that SSA is achieving its overarching goals of
making accurate, consistent decisions as early in the process as
possible. The second key area is communication. It is important for
SSA's top leadership to support open lines of communication throughout
implementation if the agency is to facilitate a successful transition.
Failure to, for example, provide useful feedback to staff--many of whom
will be new to the agency or at least to the new tools--could
significantly jeopardize opportunities for improvement. Just as
important, SSA's top management needs to ensure that the concerns and
questions of stakeholders affected by the new process are heard, and
that concerned parties are kept apprised of how SSA intends to respond.
The eventual elimination of the Appeals Council and its replacement
with the Decision Review Board with a very different purpose has been a
great cause of concern for a number of stakeholders. SSA appropriately
has plans to assess its impact by tracking decisions resulting from
each stage of the new process, as well as the effect of the process on
the federal courts' caseloads and claimants at large. To its credit,
SSA plans to reduce any immediate impact on the courts by requiring
that the board initially review all ALJ decisions in the Boston region.
However, given that the agency plans to rely heavily on new positions,
such as the federal reviewing official, and on new technology, SSA will
need to ensure that staff are well trained, and that each adjudicator
has the support staff needed to work effectively. Focusing on one small
region will, it is hoped, allow the agency to ensure that training,
technology, and other resources are well developed to achieve expected
goals before DSI is expanded to other parts of the country.
Mr. Chairman, this concludes my prepared remarks. I would be happy
to answer any questions that you or other members of the subcommittee
may have.
Appendix I: Objectives, Scope, and Methodology
To learn more about the public's and stakeholders' views with
regard to the Appeals Council and the Decision Review Board, we
reviewed and analyzed a large sample of comment letters they submitted
to the Social Security Administration (SSA) in response to its July
2005 notice of proposed rule making on the Disability Service
Improvement process (DSI) that were related to these topics. We also
interviewed a number of key stakeholder groups to solicit their
opinions once the rule had been finalized.
Reviewing and Analyzing Comment Letters
To review and analyze the comment letters, we first downloaded all
1,143 comments that SSA had received and posted to its public Web site.
In order to focus our review on only those letters that related to the
Appeals Council and the Decision Review Board, we then applied a word
search to restrict our analysis to the responses that used the terms
``Decision Review Board,'' ``DRB,'' and ``Council.''\20\ Applying these
search terms reduced the number of comment letters for review to 683.
We discarded 43 of these 683 letters over the course of our review
because they were duplicates of letters by the same authors or did not
contain relevant comments. As a result, our final analysis was based on
the remaining 640 letters.
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\20\ It is possible that statements could have been made about the
Appeals Council and Decision Review Board that did not use these terms,
and that we could have missed. If so, the number of responses related
to these two entities could be greater than we are reporting.
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To classify the nature of the comments contained in these 640
letters, we coded the opinions as related to one of more of the
following concerns:
The Appeals Council is improving, and its termination
will not improve the disability determinations process.
There is a risk that the Decision Review Board may not
select the most appropriate cases for review.
There is a risk that Decision Review Board could unfairly
evaluate or influence administrative law judge decisions.
In the absence of an Appeals Council, the claimant no
longer has the right to initiate subsequent case review.
There is no opportunity for the claimant or his or her
representative to argue before the Decision Review Board.
A claimant's benefit might be protracted or delayed
during Decision Review Board assessment.
Petitions to the federal court are likely to increase.
Appeals to the federal court are costly or intimidating,
and claimants may not have the wherewithal to pursue the claim at this
level.
Of the 640 letters in our review, we initially identified 388 as
form letters, or letters containing identical comments, even though
they had different authors. To simplify our review, we coded these form
letters separately from the other letters. For the 252 letters that we
did not initially identify as form letters, one analyst reviewed and
coded each letter, while a second analyst verified that he or she had
coded the statements appropriately. If the first and second analysts
did not come to an agreement, a third analyst reviewed the comment and
made the final decision for how the content should be classified. Table
2 below indicates the percentage of the 252 letters citing one or more
of the above concerns.
Table 2: Share of Comment Letters Including Each of the Concern
Categories Included in This Study
----------------------------------------------------------------------------------------------------------------
Percentage of comment letters expressing concern (n
Concern category = 252)
----------------------------------------------------------------------------------------------------------------
Petitions to the federal court are likely to increase. 53
----------------------------------------------------------------------------------------------------------------
In the absence of an Appeals Council, the claimant no 48
longer has the right to initiate subsequent case review.
----------------------------------------------------------------------------------------------------------------
The Appeals Council is improving, and its termination will 38
not improve the disability determinations process.
----------------------------------------------------------------------------------------------------------------
Appeals to the federal court are costly or intimidating, 37
and claimants may not have the wherewithal to pursue the
claim at this level.
----------------------------------------------------------------------------------------------------------------
There is no opportunity for the claimant or his or her 28
representative to argue before the Decision Review Board.
----------------------------------------------------------------------------------------------------------------
There is a risk that the Decision Review Board may not 25
select the most appropriate cases for review.
----------------------------------------------------------------------------------------------------------------
There is a risk that Decision Review Board could unfairly 22
evaluate or influence administrative law judge decisions.
----------------------------------------------------------------------------------------------------------------
A claimant's benefit might be protracted or delayed during 18
Decision Review Board assessment.
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis
For the 388 form letters, we coded one letter according to the
process described above. Because the text of the form letters was
identical for each, we then applied the same codes to each of the other
form letters. All 388 form letters expressed each of the concerns
above.
Identifying and Interviewing Stakeholders
To identify key stakeholders, we first referenced the list of
organizations that SSA included in its notice of proposed rule making
as having met with the agency during its development of the final rule.
We then narrowed this list by obtaining suggestions from SSA officials
about organizations that are the most active and cover a broad spectrum
of disability issues. In total, we spoke with representatives from 10
groups:
Administrative Office of the U.S. Courts' Judicial
Conference Committee on Federal-State Jurisdiction,
Association of Administrative Law Judges (AALJ),
Consortium for Citizens with Disabilities' Social
Security Task Force (CCD),
National Association of Councils on Developmental
Disabilities (NACDD),
National Association of Disability Examiners (NADE),
National Association of Disability Representatives
(NADR),
National Council of Disability Determination Directors
(NCDDD),
National Council of Social Security Management
Associations (NCSSMA),
National Organization of Social Security Claimants'
Representatives (NOSCCR), and
Social Security Advisory Board.
Chairman MCCRERY. Thank you, Mr. Robertson. Ms. Ford.
STATEMENT OF MARTY FORD, CO-CHAIR, SOCIAL SECURITY TASK FORCE,
CONSORTIUM FOR CITIZENS WITH DISABILITIES
Ms. FORD. Thank you. Chairman McCrery, Representative
Levin, thank you for this opportunity to testify and for your
oversight on these important issues.
We applaud Commissioner Barnhart for establishing
improvement of the disability determination process as a high
priority in her tenure. Her goals of increasing the accuracy,
consistency, and fairness of decisionmaking and in turn
lessening the need for appeals are critically important.
Millions of children and adults with disabilities rely upon
SSI and Title II disability benefits and their related Medicaid
and Medicare health services. It is critically important that
those who need and qualify for benefits not be forced to wait
for months or years to be found eligible.
The implementation of the final regulations must ultimately
be measured by its impact on claimants and beneficiaries with
disabilities.
The regulations include several major new aspects and also
some major changes to long-standing procedures in the process
which must be monitored closely. All of these changes and the
issues they raise for claimants, their representatives, and
adjudicators need to be continuously monitored and studied to
determine whether implementation is going as planned and
whether there are any unintended consequences for claimants and
beneficiaries.
My testimony goes into detail on a number of issues which
we believe that SSA must carefully assess and which we urge
this Subcommittee to monitor.
While not the subject of the regulations, the new eDib, or
electronic file system, is critical to the success of the DSI
process, allowing more than one person or people in different
locations to work on the case at the same time.
As Commissioner Barnhart has pointed out many times, it is
critical that there be better development of evidence at
earlier stages in the review of a claim.
The QDD and the medical and vocational expert system are
new steps that offer opportunities for improved adjudication if
implementation is carefully monitored.
The reviewing official is also a new step, and importantly,
the first level for Federal review of an unfavorable decision.
The SSA must pay close attention to its careful implementation.
The ALJ level of review has been maintained, but some key
elements have been revised. This includes the time limits for
submitting evidence and criteria for submission of evidence
following the hearing or the decision.
There is no right to appeal to the DRB, the ALJ decision
takes on new importance. The SSA should track claimant
experience with these changes to ensure that there are no
adverse consequences.
Finally, the replacement of the Appeals Council with the
DRB could have major implications for claimants and for the
Federal courts. Before the DRB replaces the Appeals Council,
monitoring the effects of the new process in Region I and
making adjustments to protect claimants will be critically
important.
The SSA should: ensure that the predictive model is
selecting all of the cases with issues that call for
administrative remedy, ensure that claimants and
representatives receive clear guidelines on the timelines for
the DRB and for Federal courts, undertake a thorough review of
those cases filed in Federal court to determine whether there
has been a failure of the system anywhere along the line, and
ensure continuation of the Appeals Council until the DRB has
proven successful in the vast majority of cases.
Throughout all of these steps will be the new in-line
quality assurance system. It will be important to ensure that
the new feedback loops operate properly to continue educating
adjudicators about proper evidence gathering and decisionmaking
without imposing pressures for predetermined or arbitrary
decisions.
The SSA's training efforts at all levels and continued
communication with all stakeholders will be important linchpins
in whether systems changes will be successful.
In conclusion, we continue to be strongly supportive of
efforts to reduce unnecessary delays and to make the process
more efficient. By examining the experience in Boston closely
within the framework of the goals of accuracy, consistency,
fairness, and effectiveness, SSA should aim to ensure
appropriate revisions in a timely manner.
The overriding goal is to have the right decision for each
claimant, not just a legally defensible decision.
We look forward to continuing work with the Commissioner
and SSA and with this Subcommittee as the new process unfolds.
Thank you.
[The prepared statement of Ms. Ford follows:]
Statement of Marty Ford, Co-Chair, Social Security Task Force,
Consortium for Citizens with Disabilities
Chairman McCrery, Representative Levin, and Members of the
Subcommittee, thank you for this opportunity to testify on Social
Security's improved disability determination process.
I am a member of the public policy team for The Arc and UCP
Disability 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). I also serve as Vice-
Chair of CCD. 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 (hereinafter ``CCD'') focuses on disability
policy issues in the Title II disability programs and the Title XVI
Supplemental Security Income (SSI) program.
Let me begin by applauding Commissioner Jo Anne Barnhart for
establishing improvement of the disability determination process as a
high priority during her tenure. The problems in the disability
determination process have evolved over time and are not easy or simple
to resolve. Her placing a high priority on improving the system for
people with disabilities required dedication and unwavering commitment
of her time and critical resources. In addition, we commend
Commissioner Barnhart's work in making the Disability Service
Improvement (DSI) 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 and
to the Notice of Proposed Rulemaking. She and her staff have listened
to disability community concerns and addressed many of them through
changes in the final regulations. We do not agree with all of her
decisions, but believe that she has made every effort to understand our
perspective and to make her decisions in a fair manner.
We also appreciate Commissioner Barnhart's commitment to continue
working with us as the final regulations are rolled out to ensure
proper implementation and to make corrections, as necessary, where
there are unintended harmful impacts on claimants/beneficiaries.
We thank the Subcommittee for its continuing oversight of these
important changes to the disability determination process.
There are numerous areas in the new disability determination
process which need to be monitored and studied to determine whether
implementation is going as planned and whether there are any unintended
consequences from some of the new policies. I highlight the major
implementation issues as we currently see them below. Of course, we
will continue to raise with the Commissioner and with you any new
issues which may arise in the future as implementation proceeds.
As you know, the new regulations will become effective on August 1
in Region 1 (Boston), covering Connecticut, Maine, Massachusetts, New
Hampshire, Rhode Island, and Vermont. Commissioner Barnhart has
indicated her intention to roll out these changes gradually, monitoring
implementation in the Boston region for at least one year before
expanding the changes to other regions. We believe that this provides
an important opportunity to ensure that implementation is occurring as
intended and/or to make corrections to the system to ensure proper
implementation.
ELECTRONIC FILES
As you know, the success of the new Disability Service Improvement
process is highly dependent on the quality and capacity of the
electronic system that will ultimately handle all disability claims in
the Social Security Administration. Known as ``eDib'', this system will
make it possible for people in different areas of the country to work
on a case at the same time and it will make it possible to eliminate
delays caused by loss of case files and from physically sending case
files from one location to another. The success of the full
implementation of the DSI process will depend on the success and
efficiency of the eDib system.
Implementation Issues:
Will claimants/representatives have early access to the electronic
files and to new materials added to the files? To know what is in the
record at any given point during the process, we believe that optimum
meaningful access will ultimately require secure online access with a
``read-only'' capacity. Will this be available to claimants/
representatives and, if so, when? In the interim, claimants/
representatives will need immediate access to information in the file
at each administrative level.
Will claimants/representatives be able to obtain hearing recordings
immediately after the hearing (particularly if the claimant first
acquires a representative after the ALJ hearing)?
SSA should 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. SSA should track whether
claimants/representatives experience any problems with having evidence
included in the electronic record.
MEDICAL AND VOCATIONAL EXPERT SYSTEM
The rules call for the establishment of a new Medical and
Vocational Expert System (MVES) which will provide expert assistance to
adjudicators, especially at the reviewing official (RO) and
administrative law judge (ALJ) levels of review. The MVES will be
composed of the Medical and Vocational Expert Unit and a national
network of medical, psychological, and vocational experts who meet
qualifications set by the Commissioner.
Implementation Issues
SSA should track:
The experience of ROs and ALJs with obtaining expert
opinions from MVES, including SSA's procedures for ensuring that
different experts are used at different levels of review for a
claimant's case.
How MVEU handles cases where the claimant has multiple
impairments.
Use of MVEU for requesting Consultative Examinations.
Inclusion of treating sources as accepted consultative
examiners.
In developing criteria for medical and vocational experts, SSA
should ensure that:
Experts are actively practicing and knowledgeable about
the issues, including those requiring a local perspective.
Criteria for inclusion in the national network are made
public.
Credentials of individual experts are made available to
claimants/representatives, for example, through a secure, online
source.
SSA should expand the range of expertise available to adjudicators,
including occupational therapists, nurse practitioners, physical
therapists, registered nurses, psychiatric social workers, and others.
Since many of the Listings have a functional component and over half of
adult cases are decided on the Listings, such experts, who are trained
to evaluate functional limitations and their impact on the ability to
work, can help the adjudicators make better decisions.
INITIAL DECISION
As Commissioner Barnhart has pointed out many times, it is critical
that there be better development of evidence at earlier stages of the
review process. Success in this area is intended to reduce the demand
for further review of cases through the appeals process.
The quality of the information/evidence developed for the record
will have a significant impact on whether SSA will be able to make the
correct decision earlier in the process--one of the Commissioner's key
goals for DSI. Asking focused questions of treating sources can elicit
information that will be more effective in helping adjudicators reach
individualized decisions than a scatter-shot approach which results in
much missed, but critical, detail.
In addition, the Commissioner has developed a Quick Disability
Determination (QDD) process to ensure that people who are clearly
disabled, for whom readily obtainable evidence exists, will move
through the process very quickly. A predictive model will identify
these claims so that the decisions can be expedited.
Implementation Issues:
SSA will need to determine:
Whether claimants/representatives are assisted to
understand the disability process and what types of evidence need to be
obtained.
Whether providers are given understandable information
about what information is needed for adjudication of the claim and
whether the Disability Determination Service (DDS) and the RO obtain
individualized evidence from the treating sources.
For the QDD process, SSA should track the experience of cases where
the QDD unit cannot make a fully favorable determination to ensure that
the cases return to the normal DSI process without any adverse
consequences to the claimant.
SSA should collect data to indicate how the QDD process compares to
decisions of presumptive disability and the TERI (terminal illness)
cases.
SSA should collect data on the implementation of the QDD provisions
and the predictive model: how many people go through the process; how
many are allowed; what impairments they have; etc.
Will the predictive model for the QDD step be public?
FEDERAL REVIEWING OFFICIAL
The federal Reviewing Official level is new in the adjudicatory
process. As such, there are many questions about implementation. The RO
review will be the first step in the appeals process for claimants. It
will also be the first federal level of review for the claimant.
Further, it is intended to address the often-raised issues about
consistency of decision-making across the country. The RO will not
conduct a hearing, but rather will review the developed record and will
further develop evidence, as necessary. The RO is a key figure in
ensuring that evidence is fully developed and is given subpoena power
to gather evidence. The RO level carries a heavy burden in the new DSI
and we urge SSA to pay close attention to its careful implementation.
Implementation Issues:
SSA should ensure proper notification of the right to
representation and assess whether the earlier notice is resulting in
more representation and better development of the record before
claimants reach the ALJ level.
SSA must ensure that the requirement to consult with MVEU does not
direct a certain type of decision regardless of the individual
circumstances. Also, SSA should track whether the RO's required
consultation with the MVES results in unreasonable delays in reaching a
decision.
SSA must ensure that the claimant can submit evidence up to the
time the decision is issued.
SSA should track experience with:
Review by ROs in a different part of the country from
where the claimant lives.
Whether nationwide consistency (reduction of state-by-
state disparity) has improved.
Processing time at the RO level.
SSA should track the RO use of subpoena power to ensure that
evidence is fully developed.
ADMINISTRATIVE LAW JUDGE
The administrative law judge (ALJ) level is not new and the
claimant's right to a de novo hearing before an ALJ has been preserved.
However, there are numerous changes in the procedures, including
timeframes for submitting evidence and scheduling hearings. In
addition, the ALJ level attains new importance since it may be the
claimant's last step in the administrative process (except for an ALJ's
dismissal of a hearing), before filing in federal court, if the
Decision Review Board (DRB) does not select the case for review. With
these changes, SSA's vigilance in monitoring implementation will be
critical.
Implementation Issues:
SSA should track experience with the scheduling of hearings:
Track how many claimants waive notice of 75 days.
Track claimant experience with objections to time/place
of hearing and issues for the hearing.
Track experience with the rule for submitting pre-hearing
evidence 5 business days before the hearing, including tracking denials
of a request to submit evidence after the 5 days.
Track post-hearing evidence submission and decisions
about whether the relevant criteria are met.
Track whether claimants receive a hearing date within 90
days of filing the request for hearing.
Regarding evidence development, SSA should track:
How many claimants are still missing key evidence from
their files when they reach the ALJ level and how that compares to the
previous system.
Whether ALJs meet their own obligations to develop
evidence.
Regarding the exceptions for submitting evidence within five
business days of the hearing or later, SSA should:
Ensure ALJ understanding of the requirement to find that
the exception criteria are met in delineated circumstances.
Ensure ALJ understanding of ``unavoidable'' to include
claimant's/representative's inability to acquire evidence from third
parties (such as treating source, lab, hospital, etc.).
Ensure ALJ understanding of the difference between
``reasonable possibility'' that evidence will ``affect'' the outcome
before the decision is rendered and ``reasonable probability'' that
evidence will ``change'' the outcome after the decision has been
issued.
Assess whether ALJs are properly applying these
standards. If not, what will SSA do to rectify the situation?
SSA should ensure that the findings integrated template (FIT) does
not direct decisions in any particular way.
SSA must address how it will ensure a safety net for claimants who
experience ALJ bias or misconduct, including SSA's use of the Merit
Systems Protection Board procedures.
DECISION REVIEW BOARD
The Decision Review Board is a new entity which follows the ALJ
level and replaces the Appeals Council. However, the DRB will be much
different than the current Appeals Council. Claimants will have no
right to appeal to the DRB. They may submit a written statement upon
the request of the DRB or within 10 days of notice that the DRB will
review the case. The timelines for decisions by the DRB, the deadlines
for filing in federal court, the timelines for an appeal of an ALJ's
dismissal of a hearing, and the relationship among all these may prove
very confusing to claimants and their representatives.
Since the DRB step is vastly different from the Appeals Council
step and the impact on the federal courts is unknown, SSA's careful
monitoring of this step in the Boston region will be critically
important. For the new DSI process to be successful, SSA should be
prepared to address major problems immediately and to consider changes
and adjustments as necessary if the impact on claimants and/or the
courts is detrimental.
Implementation Issues:
SSA should ensure that claimants/representatives receive clear
guidance on the timelines for: submitting a written statement upon the
request of the DRB or within 10 days of notice that the DRB will review
the case; decisions by the DRB; the deadlines for filing in federal
court; the timelines for an appeal of an ALJ's dismissal of a hearing;
and the relationship among these deadlines.
During the time in which SSA is reviewing 100 percent of the cases
at the DRB level in the Boston region, we think it is important for SSA
to:
Assess the role of the predictive model in detecting the
appropriate cases for review--can the model predict the full range of
error-prone cases? SSA should examine (1) the cases that the DRB would
have reviewed (using the predictive model) against (2) those cases
where a significant change was made based on the 100% review but where
DRB would not have reviewed the case based on the predictive model.
Assess the role of the claimant's statement in
highlighting the issues for DRB review. SSA should assess the
predictive model both with and without the claimant's statements of the
case. The results may indicate whether SSA needs to re-assess the role
of claimant statements and whether they are critical in raising issues
that the predicative model fails to recognize.
Track the results of the 10-day limit on submitting written
statements to the DRB, including where a representative or claimant is
unavailable during that time, and what impact there may be on the
claimant's case if no statement is filed.
Where a representative is new to the claimant, ensure that the
representative can get a copy of the hearing recording and the record
before the ALJ as soon as possible so as not to miss the 10-day limit
for submitting a written statement, or to provide an extension of time.
For those cases which are filed in federal court in the Boston
region, undertake a thorough review of the case to determine whether
there has been a failure of the new system anywhere along the line.
Ensure continuation of the Appeals Council until the DRB has proven
successful in the vast majority of cases.
Track notification of claimants regarding their rights to appeal to
federal court.
Other questions:
How and when will the predictive model be updated? Will
the predictive model be made public?
How will SSA address the Appeals Council's current role
in resolving non-disability issues?
FEDERAL COURT
The impact on the federal courts will be a key factor in
determining whether the new DSI process is successful. Some of the
issues are discussed above regarding the DRB.
Implementation Issues:
In addition to those issues described above regarding the DRB, SSA
should:
Track its experience regarding the number of cases going
to federal court to determine whether there is an increase or a
decrease.
Track the number and proportions of SSA's requests for
voluntary remands of cases appealed to federal court. Assess the
rationale for these requests for voluntary remands and determine
whether an earlier failure in the system created the problem.
OTHER/OVERALL ISSUES
There are several procedures/practices which overarch several
levels of review. Theses include payments and reimbursement rates to
providers; differences in Circuit Court decisions; the new in-line
quality assurance systems and feedback loops; issues regarding
redaction; operating procedures; and SSA's demonstration authority.
Implementation Issues:
To address these issues, SSA should:
Ensure that reimbursement rates (ex.: for consultative
examinations, copies of records, etc.) are in line with actual costs to
providers.
Ensure that quality assurance feedback loops operate as
intended and do not create pressure on the level below to make a
certain type of decision regardless of evidence (undue influence).
Clarify that the requirement that evidence not be
redacted applies only to redactions by the claimants/representatives,
not to redactions made by the provider (treating physician, lab,
hospital, or other treatment source). Redactions that are made by such
third party outside of the control of the claimant/representative
should not disqualify that evidence for the claimant.
Where there are acquiescence rulings or differences among
the Circuit Courts on an issue, ensure that decision-makers who operate
nationwide (or who are not located in the same area as the claimant)
apply decisions and rulings properly in the affected regions/states.
Ensure that the operating procedures are written in a way
to ensure the effective and efficient implementation of the final
regulations with no unintended consequences or burdens falling on
claimants.
Make operating procedures available to claimants and
representatives and include guidance on situations they will newly
encounter (such as how to send evidence to the RO assigned to the
case).
Conduct thorough assessments of the demonstration
programs (provision of interim minimum health benefits, waiving 24-
months waiting period, medical home centers, etc.).
SSA LIMITATION ON ADMINISTRATIVE EXPENSES
I would be remiss if I failed to note the importance of fully
funding SSA's Limitation on Administrative Expenses (LAE).
To meet the needs of claimants and beneficiaries during the
hurricane emergencies in 2005, SSA was required to redirect $38 million
from a budget that had already been reduced $300 million below the
President's request for this fiscal year (FY'06). A supplemental
appropriation of $38 million, included in the conference report of the
supplemental appropriations bill, will help to restore the loss of
resources due to the hurricanes so that SSA may continue addressing its
substantial on-going workload.
SSA must have the resources to handle its day-to-day work. SSA is a
well-managed agency and does a good job with the resources it has been
appropriated. However, we have been concerned, and continue to be
concerned, that SSA does not have adequate resources to meet all of its
current responsibilities, including those of importance to people with
disabilities. This includes the need to regularly conduct continuing
disability reviews (CDRs). As I understand, the House Appropriations
Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies has reported a bill that would reduce the President's
budget request for SSA's LAE by $201 million, funds which would have
been used for conducting additional CDRs. We are hopeful that the full
House will ultimately approve a bill that restores the President's full
request so that SSA can continue its important work on the disability
programs, including conducting CDRs.
ADDITIONAL CONGRESSIONAL ACTION NEEDED
Congress should extend SSA's statutory Title II demonstration
authority. Its authority was extended in the Social Security Protection
Act of 2004 (P.L. 108-203). The extended authority expired on December
18, 2005, and no new demonstration programs can be initiated.
Conclusion
As stated in our testimony before this Subcommittee in September
2005, while justice delayed can be justice denied, justice expedited
also can result in justice denied. As organizations representing people
with disabilities, we strongly support efforts to reduce unnecessary
delays for claimants and to make the process more efficient. At the
end, the goal is to have the right decision, not just a legally
defensible decision. We believe it is necessary to examine all of the
issues outlined above to assess whether there are any unintended
results and to ensure appropriate revisions in a timely manner.
We look forward to continuing to work with Commissioner Barnhart
and this Subcommittee as implementation of the new DSI process unfolds.
______
ON BEHALF OF:
American Association of People with Disabilities
American Association on Mental Retardation
American Council of the Blind
American Network of Community Options and Resources
American Occupational Therapy Association
Association of University Centers on Disabilities
Council of State Administrators of Vocational Rehabilitation
Bazelon Center for Mental Health Law
Inter/National Association of Business, Industry and Rehabilitation
National Alliance on Mental Illness
National Association of Councils on Developmental Disabilities
National Association of Disability Representatives
National Disability Rights Network
National Multiple Sclerosis Society
National Organization of Social Security Claimants' Representatives
National Organization on Disability
National Rehabilitation Association
NISH
Research Institute for Independent Living
The Arc of the United States
Title II Community AIDS National Network
United Cerebral Palsy
United Spinal Association
Chairman MCCRERY. Thank you. Ms. Bohr.
STATEMENT OF SARAH H. BOHR, PRESIDENT, NATIONAL ORGANIZATION OF
SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES
Ms. BOHR. Chairman McCrery, Representative Levin, and
Members of the Subcommittee, we thank you for the opportunity
to testify regarding the changes to the SSA disability
determination process known as DSI.
I'm the president of the National Organization of Social
Security Claimants' Representatives, the members of which
represent claimants in the disability process and are
intimately familiar with this process.
We certainly appreciate the Commissioner's willingness to
listen to our views and those of other advocates in the
disability community.
The final rules reflect a number of changes from the
proposed rules which will benefit claimants. However, there are
many areas that will require close monitoring by SSA and by
claimants and their representatives.
My written statement covers many topics in detail, but
today I will focus on three areas that reflect major changes
from the current practice: the FedRO; the new requirements for
submitting evidence to the ALJ; and the new DRB, and its
potential impact on our Federal courts.
The first level of appeal under DSI is to the FedRO, which
SSA views as critically important to the new process. Our
members have already raised a number of questions about this
level which are detailed in my statement.
These concerns include:
Ensuring there will be enough FedROs to handle cases and
providing them with sufficient support staff.
Following how many claimants seek representation at the
FedRO level.
Are representatives able to effectively communicate with
the FedROs and submit evidence?
Does representation earlier in the process lead to better
developed cases?
Since FedROs will be required to consult with the medical
vocational expert system if they want to allow a claim or if
they receive new evidence at the FedRO level, does this
requirement cause unreasonable delays and erode the FedRO's
authority?
A second key change requires that new evidence be submitted
to the ALJ five business days before the hearing. After that,
claimants must meet certain requirements to have new evidence
considered.
This is a major departure from the current practice that
allows evidence, consistent with the Social Security Act, to be
submitted at the hearing, if necessary.
This change leaves ALJs with a fair amount of discretion
and it needs to be closely monitored by SSA to make certain
that eligible claimants are not wrongfully denied benefits.
This is an area of particular concern to representatives,
since the ability to obtain medical evidence is often beyond
their control.
Some areas for SSA to monitor include:
Tracking the number of requests to submit evidence within
the 5 days of the hearing or later and the ALJs' decisions on
these requests.
Do denials of requests lead to more district court filings
in order for the evidence to be considered by SSA?
Does the DRB pick up erroneously denied requests to submit
evidence? Are the rules applied so that claimants who seek
representation shortly before a hearing, or even after a
hearing, are not improperly disadvantaged?
Are the rules applied in a way that is consistent with the
realities of obtaining medical evidence?
The third major change is the elimination of the claimant's
right to appeal the unfavorable ALJ decision to the Appeals
Council.
Instead, the DRB will screen both favorable and unfavorable
ALJ decisions using a ``predictive screening tool'' that will
select ``error-prone'' cases. If the DRB does not select a
case, the claimant will appeal the ALJ decision directly to
Federal court.
The SSA recognizes that many groups, including disability
advocates and the Federal court judges, are very concerned
about the elimination of the Appeals Council step for
claimants. This change will require very close monitoring.
However, we believe it will take longer than a year to closely
monitor and fully assess the impact on our courts.
My written statement outlines a number of statistics that
SSA should track, including the disposition of cases by the
DRB, the number of court filings by unrepresented claimants,
and the number and the types of court dispositions and the
underlying reasons.
The SSA also needs to track whether the new rules on ALJ
evidence submission affect court filings.
We also have many questions about the ``predictive
screening tool'' and the selection of cases for the DRB review
that SSA should evaluate:
Will ALJs be able to learn which cases are more likely to
trigger DRB review?
Can a computer-based screening tool identify all of the
issues that arise in a case, including subtle issues like ALJ
bias or issues specific to the circuit, based on circuit
precedent?
We are also concerned about delays in payment of benefits
that may arise from the time needed for DRB review of favorable
ALJ decisions.
In conclusion, as DSI begins, we'll monitor the process
with our members of Region I states and continue to present our
concerns to the Commissioner.
Thank you.
[The prepared statement of Ms. Bohr follows:]
Statement of Sarah H. Bohr, President, National Organization of Social
Security Claimants' Representatives, Atlantic Beach, Florida
Chairman McCrery, Representative Levin, and Members of the Social
Security Subcommittee, thank you for inviting NOSSCR to testify at
today's hearing on the Social Security Administration's (SSA) improved
disability determination process.
My name is Sarah H. Bohr and I am the 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
more than 3,600 members from the private and public sectors and is
committed to the highest quality legal representation for claimants.
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.
I currently am an attorney in a small law firm in Jacksonville, FL,
that specializes in Social Security appellate work. Our firm writes
briefs for cases before the Appeals Council and in the federal courts,
including district courts in over 17 states and six circuit courts of
appeals. I also successfully argued a case before the United States
Supreme Court, Sims v. Apfel, 530 U.S. 103 (2000). I have specialized
in Social Security law for over twenty-five years, including 21 years
with a legal services program in Jacksonville, where I represented
claimants at all administrative and judicial levels, from the initial
application through the federal court appellate process. I also am the
author of Bohr's Social Security Issues Annotated, which surveys Social
Security caselaw from all of the federal circuits.
The final regulations on the new Disability Service Improvement
process (DSI) were published on March 31, 2006, at 71 Fed. Reg. 16424
(Mar. 31, 2006). The public's interest in these changes can be gauged
by the nearly 900 comments that were received in response to the July
27, 2005 proposed rule.
We appreciate the Commissioner's willingness to discuss her
proposal and listen to our views. Based on the comments to the proposed
rule, the final rule reflects a number of changes, including many that
are definite improvements from a claimant's perspective. However, there
are many areas that will require close scrutiny by claimants'
representatives and that SSA will need to monitor to ensure that the
goals of DSI are achieved. My testimony today will discuss these areas
of concern, focusing on the Administrative Law Judge (ALJ) and Decision
Review Board (DRB) levels.
1. Implementation of the DSI Process
DSI will apply only to those claims that are filed in SSA Region I
states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,
and Vermont) on or after August 1, 2006. Region I will be the only DSI
location for at least one year.
NOSSCR is working closely with its members in Region I states to
provide ongoing information and support regarding DSI. In July, NOSSCR
and the Disability Law Center (DLC) in Boston, MA, will hold an all day
seminar in Boston. The goal of the meeting is to provide information
and training to Region I members shortly before DSI starts on August 1.
Key SSA officials will attend and present updates on DSI
implementation. NOSSCR also has worked with DLC to set up a listserve
for Region I representatives to share new and updated information about
DSI, and to discuss experiences with DSI and issues that will arise. In
addition, NOSSCR has created a DSI link on its website, www.nosscr.org,
and information also will be posted on a special website maintained by
the Disability Law Center, www.masslegalservices.org/cat/3221. Because
SSA will follow the process under which the claim was originally filed,
we are encouraging our members in non-Region I states to become
familiar with the DSI process. Claimants who filed under DSI might move
to their states outside Region I and seek representation.
II. General Issues
As noted above, NOSSCR is a member of the Consortium for Citizens
with Disabilities Social Security Task Force and we endorse and
incorporate the issues presented in Marty Ford's testimony today. In
particular, we strongly support the need to fully fund SSA's
Limitations on Administrative Expenses and give SSA the resources to
adequately handle its workload. The Subcommittee is well aware of the
increasing delays in processing disability claims. Just last month, the
Commissioner testified how cuts in the President's proposed budget for
SSA impact the agency's ability to meet its current responsibilities.
For DSI to succeed, SSA needs to receive the President's full budget
request.
Other DSI issues covered in more detail in the CCD testimony
include: better development of the evidence earlier in the process; the
Quick Disability Decision process; and the Medical and Vocational
Expert System (MVES). There are several other general issues that we
would like to mention:
What is a ``disability claim''? The DSI regulations state
that the new process applies to ``disability claims.'' 20 C.F.R.
Sec. 405.1. Many disability claims involve issues which do not strictly
deal with the evidence of disability, but are integral parts of the
claim, e.g., work-related issues, Title II insured status. They are
part of the disability claim and SSA needs to clarify which set of
procedures applies.
Dealing with two appeals processes. Most representatives
will be trying to manage cases in both the current and DSI processes.
And, as described above, it is possible that one client may have issues
from the same application in both the DSI and current processes. What
will be SSA's policy if an appeal is filed in the wrong system? Will it
provide a protective filing date? This problem is not covered by the
DSI regulations but needs to be addressed by SSA. Claimants should not
be penalized.
The electronic folder--eDIB. NOSSCR generally supports
Commissioner Barnhart's technological initiatives to improve the
disability claims process, so long as they do not infringe on
claimants' rights. The electronic disability folder, ``eDIB,'' 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 the eDIB changes, which will help to ensure that
claimants benefit from these important improvements. We have had
several very productive meetings and we appreciate this valuable
opportunity to provide input.
With electronic folders, claimants' representatives will be able to
obtain a single CD that contains all of the evidence in the file. Early
access to the record will allow representatives to determine what
additional evidence is needed. SSA needs to ensure that access to CDs
is available at all administrative levels--the DDS, the Reviewing
Official, the administrative law judge, and the Decision Review Board.
Given the need for claimants and their representatives to have
access to the file at all levels of the process as early as possible,
SSA should explore allowing claimants' representatives to have online
access to the files through secure sites, such as those now used by the
federal courts. This would free up SSA staff, now providing information
about claims, to perform other tasks.
Reopening. In a major change from the proposed rule, the
final rule keeps the current reopening rules in place for all claims
adjudicated prior to the hearing level. This means that ALJs may reopen
decisions at the state agency or RO level and the RO may reopen
decisions at the state agency level. However, once an ALJ decision is
issued and is the Commissioner's ``final decision,'' reopening of that
decision is limited to six months from the date of the decision and
``new and material evidence'' is not a basis for good cause.
Reopening situations currently do not arise that often, but when
they do, they usually have compelling fact patterns involving claimants
who did not understand the importance of appealing an unfavorable
decision. Often they are claimants who have mental impairments, who
previously were unrepresented, or who were unable to adequately
articulate their claim in the first application. SSA should monitor
subsequent claims at the ALJ and DRB levels to determine whether the
DSI reopening rules preclude claimants from eligibility under a prior
claim that would be reopened under the current, non-DSI regulations
based on ``new and material'' evidence.
III. The Federal Reviewing Official
DSI eliminates the reconsideration level. If a claim is denied at
the initial level, the claimant will be informed of the right to appeal
to the Federal Reviewing Official (RO). SSA foresees representative
involvement at this level by including, for the first time at this
early point in the process, information about the right to
representation. 20 C.F.R. Sec. 405.115. The notice also will provide
more specific reasons and a detailed rationale for the initial denial.
SSA has described the new RO level as the ``linchpin'' of the DSI
process. The RO level will be federal and centrally managed by SSA. ROs
will be attorneys who are ``highly qualified'' and ``thoroughly trained
in SSA policies and procedures.'' ROs can be located anywhere in the
country since they will be using electronic folders and will not see
claimants in person. Initially, all ROs will be located in Falls
Church, VA. ROs will handle cases from different states.
The Federal Reviewing Official
Will staffing at the RO level be adequate? How many ROs
will be hired to handle Region I cases? The agency also has stated that
it does not want to hire staff attorneys away from hearing offices,
since that will cause further problems in those offices. But where else
will SSA find attorneys who are ``highly qualified'' and ``thoroughly
trained'' in SSA policies?
Will ROs have adequate support staff to assist in their
duties, especially, development of the record? What steps will ROs take
to fully develop the evidence to create a complete record?
As authorized by the regulations, will ROs use treating
physicians as the preferred source for consultative examinations (CEs)?
SSA should track the use of CEs and who performs them.
Do claimants seek representation at the RO level?
Are claimants' representatives able to effectively
contact ROs? Does representation earlier in the process contribute to
better developed records? Can representatives easily communicate with
ROs, including both the ability to submit new evidence and the ability
to get timely responses from the RO?
Do RO interactions with the MVES go smoothly? ROs are
required to ``consult'' with the MVES if either new evidence is
submitted at the RO level or if the RO disagrees with the DDS's
decision, i.e., wants to allow the claim. Will this requirement to
consult cause unreasonable delays and/or erode the authority of the RO?
SSA should maintain statistics on:
The number of claimants who are represented at the RO
level
The time frames for the RO to issue decisions in
cases where the RO consulted with the MVES and in cases where no such
consultation occurred
The frequency with which the MVES agrees or disagrees
with the decision of the RO
A comparison in the processing times between the RO
level and the reconsideration level
The allowance rates at the RO level compared with the
allowance rates at the reconsideration level
The extent to which RO decisions reduce state
disparities
IV. The Administrative Law Judge Level
The final DSI regulations include provisions that will benefit
claimants, including retaining the de novo hearing before an
administrative law judge (ALJ) and, for the first time, setting a goal
(but not requirement) that the claimant receives a hearing date within
90 days after the appeal is filed (although the hearing could be held
after the 90 days). SSA should monitor the rate at which the goal of
setting the hearing date within 90 days is achieved. Also, the time for
providing notice of the hearing date is increased from 20 to 75 days,
with the goal of providing adequate time to obtain new evidence. The
final rule includes new limits and procedures for submission of
evidence. These changes will need to be closely monitored to make sure
that claimants who meet the statutory definition of disability are not
wrongfully denied benefits.
A. Submission of Evidence
The DSI regulations require that new evidence be submitted at least
five business days before the hearing. 20 C.F.R. Sec. 405.331(a). After
that point, depending on when the evidence is submitted, the ALJ is
required to consider the evidence if the claimant meets the specific
requirements in the DSI regulations.
The final rule is clearly better than the proposed rule, which
required submission at least 20 days before the hearing and had
stricter requirements for later submission, but it still represents a
major change for practitioners. It also is an area that will require
close monitoring to ensure that ALJs correctly apply the regulations,
especially in light of 42 U.S.C. Sec. 405(b), which provides that the
claimant has the right to a ``hearing'' with a decision based on
``evidence adduced at the hearing.'' Under pre-DSI regulations that are
consistent with the statute, the claimant can submit evidence anytime,
including at the hearing. 20 C.F.R. Sec. Sec. 404.929 and 416.1429.
Under DSI, evidence can be submitted within the 5-business-day
period before the hearing, in certain situations. 20 C.F.R.
Sec. 405.331(b). The ALJ ``will'' (i.e., ``must'') accept and consider
the new evidence if the claimant shows that: (1) SSA's action misled
the claimant; or (2) The claimant has a physical, educational or
linguistic limitation that prevented earlier submission of the
evidence; or
(3) Some other ``unusual, unexpected, or unavoidable circumstance
beyond the claimant's control'' prevented earlier submission.
These three exceptions form the basis for submission of evidence
within 5 business days of the hearing and later. They are the same as
the new ``good cause'' exceptions to extend the time to file an appeal
in 20 C.F.R. Sec. 405.20(a). The ``good cause'' regulation at section
405.20(b)(4) provides the example relevant to efforts to obtain
evidence: ``You were trying very hard to find necessary information to
support your claim but did not find the information within the stated
time period.''
Based on this statement in the ``good cause'' regulation, SSA has
said that the ALJ must accept new evidence within the 5-day time period
if it has been requested but not obtained. In making this statement,
SSA relies on the exception in 20 C.F.R. Sec. 405.331(b)(3), i.e., the
circumstance beyond the claimant's control, and then refers to the
example in 20 C.F.R. Sec. 405.20(b)(4).
However, the evidence submission regulation, 20 C.F.R.
Sec. 405.331, does not explicitly reference the good cause regulation,
20 C.F.R. Sec. 405.20, or more specifically, the examples in
Sec. 405.20(b). What happens if an ALJ refuses to accept evidence
within the 5 day period, even if the exceptions are met? Is there a
violation of 42 U.S.C. Sec. 405(b)? SSA says no. But it remains an open
question and this area will require very close monitoring.
Submission of evidence after the hearing. The final rule provides that
new evidence can be submitted after the hearing, but under
stricter circumstances. Between the hearing and the ALJ
decision (and if the ALJ does not hold the record open at the
hearing), the requirements for evidence submission are similar
to those for submission within 5 days of the hearing. But this
rule, 20 C.F.R. Sec. 405.331(c), has an additional significant
requirement. The claimant must (1) meet one of the three
exceptions discussed above and (2) show that there is a
``reasonable possibility'' that new evidence, alone or with the
other evidence, would ``affect'' the outcome of the claim.
After the ALJ decision and if the DRB does not review the ALJ
decision, i.e., the ALJ decision becomes the ``final decision'' of the
Commissioner, the claimant may submit new evidence to the ALJ, but with
even more additional requirements. Under 20 C.F.R. Sec. 405.373, the
claimant must (1) meet one of the three exceptions described above; and
(2) show that there is a ``reasonable probability'' that new evidence,
alone or with the other evidence, would ``change'' the outcome of the
decision; and (3) file the request with the ALJ within 30 days of
receiving the ALJ decision.
Questions to consider:
What is the actual experience regarding ALJs'
consideration of new evidence submitted within five days of the hearing
and later? As discussed above, the final DSI rules give ALJs a fair
amount of discretion in determining whether to consider new evidence.
SSA should track the number of requests to submit evidence within 5
business days of the hearing or later and the ALJ's decision on the
request. This information will help determine whether ALJs are
following the regulations.
What happens if an ALJ refuses to accept evidence even if
the regulations are met? Does this violate 42 U.S.C. Sec. 405(b)
regarding the claimant's right to a decision based on evidence adduced
at a hearing?
Will ALJs' denials of requests to submit new evidence
lead to more district court filings? Under 42 U.S.C. Sec. 405(g), the
court can remand a case to SSA for consideration of ``new'' and
``material'' evidence where there is ``good cause'' for not submitting
it earlier. Will an ALJ's failure to follow the regulations amount to
such ``good cause''? Will the DRB pick up cases where the ALJ
improperly refused to accept new evidence?
SSA should clarify its policies so that the examples in
the ``good cause'' regulations, 20 C.F.R. Sec. 405.20, also apply to
the evidence submission regulations, 20 C.F.R Sec. Sec. 405.331 and
405.373.
How do ALJs interpret the rule for evidence submission
after the hearing, which requires a ``reasonable possibility'' the
evidence would ``affect'' the outcome? And the rule for evidence
submission after the hearing decision, which requires a ``reasonable
probability'' the evidence would ``change'' the outcome? What is the
actual difference between the two standards? ``Possibility'' vs.
``probability''? ``Affect'' vs. ``change''?
Are the rules implemented in a way that is consistent
with the realities of claimants obtaining representation? How are the
rules applied if a claimant seeks representation shortly before the
hearing? Or within 5 days of the hearing? Or after the hearing is held
or the ALJ decision is issued? Based on the experience of our members,
claimants who seek and obtain representation shortly before the hearing
(or after the hearing) is not an uncommon occurrence since the ALJ
hearing is the first in-person contact with an adjudicator (this will
not change under DSI).
Are the rules applied in a way that is consistent with
the realities of obtaining medical evidence both before and after the
hearing? While we believe the 75-day hearing notice will be a great
help, we still anticipate delays in obtaining medical records. We
strongly support early submission of evidence; however, our members
frequently have great difficulty obtaining necessary records, which is
outside their control. While the 75-day notice is a great help, nothing
requires medical providers to turn over records within that time
period.
B. The ALJ decision
The ALJ decision must explain in detail why the ALJ agrees or
disagrees with the Reviewing Official's findings and rationale. 20
C.F.R. Sec. 405.370(a). In addition, SSA has developed templates,
currently voluntary, for ALJ decisions.
Questions to consider:
SSA needs to make sure that the decision-making process
does not undermine a claimant's right to a de novo hearing and that it
does not compromise the ALJ's decisional independence. SSA needs to
monitor whether the ALJ's obligation to justify disagreeing with the RO
interferes with this independence.
Does any element of the process make it harder for the
ALJ to allow a claim than to deny a claim?
Do ALJs give the RO decision and/or findings any special
weight?
C. Video hearings
Over the past few years, SSA has held an increasing number of
hearings by video teleconferencing. Video hearings provide SSA with
management flexibility and administrative efficiency and give SSA a way
to balance workloads and help claimants whose local hearing offices
have huge backlogs. However, based on our members' experience, SSA has
not perfected the video hearing environment and, for many, the video
hearing process is not a satisfactory replacement for in-person
hearings.
SSA's regulations and policies guarantee claimants an absolute
right to decline to appear by video hearing and to request an in-person
hearing, so long as the request is timely. The claimant is not required
to explain why an in-person hearing is requested. The final DSI
regulations reaffirm this right. 20 C.F.R. Sec. 405.315(c).
Questions to consider:
We continue to hear of instances where ALJs do not follow
SSA's regulations and fail to provide an in-person hearing when
requested or require a reason for the request. As SSA increases the use
of video hearings, the agency needs to make its policy instructions
clear regarding the claimant's absolute right to have an in-person
hearing and that no reason is required.
Under DSI, if the claimant objects to the time or place
of the hearing, the objections must be made in writing within 30 days
of receiving the hearing notice. 20 C.F.R. Sec. 405.317(a). SSA needs
to clarify whether a claimant has the same 30-day period to object to a
video hearing. Section 405.315(c) does not reference Sec. 405.317(a).
D. ALJ dismissals
Under DSI, the only ALJ decision that a claimant can appeal to the
Decision Review Board is where the ALJ dismisses the case. These
decisions are often legally erroneous but must be addressed before the
substantive disability issues can be considered. The DSI regulations
require that a claimant first ask the ALJ to vacate the dismissal
before asking the DRB to act. However, there is no time limit for the
ALJ to act on the request to vacate.
Questions to consider:
Should there be a time limit for the ALJ to act on a
request to vacate a dismissal? After that time limit, the claimant
could automatically proceed to the DRB.
How long does it take ALJs to rule on requests to vacate
dismissals? SSA should monitor the length of time it takes ALJs to make
decisions on requests to vacate dismissals.
Is there any change in the rate of dismissals under DSI
than under the current regulations? What is the rate at which the DRB
overrules the ALJs dismissals under DSI?
V. Decision Review Board and the Impact on the Federal Courts
The final rule eliminates the Appeals Council and the claimant's
right to initiate administrative review of an unfavorable ALJ decision
(other than ALJ dismissals). Instead, the Decision Review Board (DRB)
will select cases, both favorable and unfavorable, for own-motion
review using a ``predictive screening tool'' that will identify
``error-prone'' cases.
In the preamble to the final rule, SSA recognized that many
commenters were very concerned about the elimination of the claimant's
right to appeal and the impact on the federal courts. As a result, SSA
emphasizes several points: implementation will be very gradual; the
only claims affected will be those that go through the DSI process from
the beginning; the Appeals Council will continue to operate in states
where DSI is not implemented (for now, everywhere except Region I) and
for all nondisability claims (including Region I states).
The elimination of claimant-initiated administrative review of
unfavorable ALJ decisions and creation of the DRB presents one of the
major changes under DSI. The DRB process raises many concerns and
issues and will require very close monitoring to assess the impact on
claimants, on the courts, and on SSA.
A. Impact on the Federal Courts
Over the years, the courts have played a critical role in
protecting the rights of claimants. We support the current system of
judicial review and are pleased that the DSI final rule does not impair
that right, except to the extent it could be affected by the procedural
change of eliminating claimant-initiated review and significantly
increasing the number of court filings. SSA is aware of these concerns,
which also have been raised by the Judicial Conference of the United
States. While it will be very important to closely monitor the impact
of the final DSI changes on the courts, it will be much longer than the
one year of Region I DSI implementation before we have any true sense
of the impact. And, we may not have a full assessment until after SSA
has expanded DSI implementation into another region.
Questions to consider:
To assess the impact of eliminating Appeals Council
review on the federal courts, SSA should track the following:
Number of ALJ decisions: favorable and unfavorable
Disposition of cases by DRB, including the number where
it disagrees with the ALJ
Number of court filings
Number of pro se court filings and number of filings by
attorneys
Court dispositions, including numbers and reasons for
action:
Remands: voluntary remands under sentence six of 42
U.S.C. 405(g)
Remands: by court decision for errors of law or fact
under sentence four of 42 U.S.C.405 (g)
Remands: by court decision for new and material
evidence and good cause for not submitting earlier under sentence six
of 42 U.S.C.
Reversals under sentence four of 42 U.S.C. 405(g)
Affirmances
Do the new rules on evidence submission to ALJs affect
court filings? Additional burdens could be faced by the courts in
dealing with new evidence that is submitted to the court but which was
not accepted by the ALJ or DRB. Under 42 U.S.C. Sec. 405(g), the court
may order that SSA (not the court) take additional evidence if there is
a showing that the evidence is new and material and there is good cause
for the failure to incorporate the evidence into the record at an
earlier administrative level. Claimants may be forced to file an appeal
in court just to have SSA consider evidence that should have been
considered during the administrative process. As discussed earlier, SSA
needs to very closely monitor how ALJs apply the new rules on
submission of evidence within five days of the hearing or later.
Otherwise, these rules alone could result in a dramatic increase in
court filings.
If federal court filings escalate significantly, will SSA
reinstate a final administrative level of review accessible by
claimants?
If the DRB does not complete its review within 90 days of
the notice, the claimant can proceed to file in federal court. Will SSA
send another notice at the end of the 90 days to inform the claimant
that he/she has 60 days to file an appeal in federal court? SSA has
said that it will send such a notice, but there is no provision in the
final regulations.
B. Screening ALJ Decisions: The DRB ``Predictive Screening Tool''
Under DSI, the ALJ decision is screened before effectuation. If the
DRB decides to review the case, the ALJ decision will only be sent to
the claimant with the DRB Notice of review. During the first year of
DSI, the DRB will review all ALJ decisions in Region I, both favorable
and unfavorable. This means that claimants with favorable ALJ decisions
will first receive the decision after the DRB screening and with the
DRB review notice. And they will not be put in benefits payment status
until after the review is completed.
Questions to consider:
What is the ``predictive screening tool''? We have been
told that SSA and its contractor are looking at recent court decisions,
both requests for voluntary remand and court orders, to determine the
reasons that the underlying agency final decision was erroneous. A
preliminary model will be run to see which cases are picked up. SSA
will compare the cases identified by the screening tool to its own
hands-on review of cases in Region I. Issues raised in written
statements submitted by claimants and their representatives also will
be compared to those identified by the screening tool. The process for
selection of cases for DRB review raises another series of questions:
Will ALJs be able to learn which cases are more likely to trigger DRB
review and adjust their decisions accordingly? Does the selection
process seem to target certain categories of claimants? By impairment?
By functional capacity? By age? Is SSA required to disclose the
criteria used in screening?
Will screening detect all of the issues that arise in ALJ
decisions, including those that are subtle, such as ALJ bias or unfair
hearings? ALJ decisions that are currently reviewed by the Appeals
Council often raise a number of legal and factual issues. Is any
computer-based screening tool able to identify all of the issues that
arise in a case?
How will SSA determine whether the predictive screening
tool is accurate? What are the criteria for measuring success? What is
an ``error-prone'' case? Can the model accurately identify ``error-
prone'' cases? What will SSA do if the screening tool does not identify
appropriate cases?
Will screening be different for ALJ allowances than for
denials? Our members and their clients remain very concerned about
delays in payment of benefits that may arise from the time needed for
DRB review of favorable ALJ decisions. In Region I, the DRB will not
only screen but will review all ALJ decisions, favorable and
unfavorable. Claimants will not be put in pay status while waiting for
a DRB decision on an ALJ allowance. However, we have been told that SSA
is looking at ways to accelerate the screening and review of favorable
ALJ decisions, especially dire need cases, TERI (terminally ill) cases,
and on-the-record ALJ decisions. Will SSA establish categories of cases
where DRB review can be expedited?
Does the screening disparately impact certain classes of
individuals? Is there a disparate impact of the screening tool on
certain groups of claimants, e.g., those who have a mentally illness?
SSA should monitor the selection of cases by the DRB to assure that it
is not biased against claimants with specific impairments or who have
certain racial or ethnic characteristics.
C. Written Statements at the DRB
Written statements can be submitted in every DRB review case (the
proposed rule required DRB invitation or permission), but there is a
2000-word limit, about 3 to 4 pages. In Region I, every statement will
be part of the DRB review during the first year of DSI implementation,
since all ALJ decisions will be reviewed. These written statements from
claimants will be extremely important since SSA will want to compare
the issues raised in the written statements with those identified by
the predictive model. There may be critical information about a case
that will only be provided by the claimant and not identifiable from
the electronic record.
Questions to consider:
What criteria will SSA use to determine whether the
statements are critical in predicting error-prone cases? If determined
that the statements are critical, will SSA change the process?
Under DSI, the claimant's representative must submit the
statement within 10 days after receiving the DRB notice of review,
unless the DRB asks for a statement within a set time period. Is the
10-day time limit fair? What happens if a claimant seeks representation
after receiving the DRB notice of review? How can the representative
obtain a copy of the hearing file and the hearing recording in a timely
manner? Will the DRB allow for an extension of the 10 days in
appropriate cases?
Given the importance of the written statements, is an
across-the-board limit of 2000 words fair?
D. Composition of the DRB
The DRB will be composed of three-member panels. Each panel will
have two ALJs and one Administrative Appeals Judge (currently, the
members of the Appeals Council). They will serve on a rotational basis
and will be appointed by the Commissioner.
Questions to consider:
How are the panels selected?
How will SSA ensure that review is fair and neutral? We
remain concerned that each panel will have a majority of ALJs who will
in turn review the decisions of other ALJs. SSA should establish
criteria to guarantee the fairness of the DRB process.
E. DRB Dispositions
The DRB is authorized to take certain actions under 20 C.F.R.
Sec. 405.440(b):
1. It can affirm the ALJ decision if the ALJ's findings of fact
are supported by substantial evidence and/or there is no significant
error of law;
2. For errors of law, the DRB can issue its own decision
affirming, reversing, or modifying the ALJ decision;
3. For factual findings not supported by substantial evidence and
if further development is needed, the DRB will remand to the ALJ.
Under the regulation, remand is the only remedy for factual errors.
But what happens if a case has both legal and factual errors? This is
not an uncommon occurrence. In many Appeals Council cases I have been
personally involved with, the Appeals Council granted review because
the ALJ's findings of fact were not supported by substantial evidence;
there were errors of law; and new and material evidence was provided.
In these cases, he Appeals Council remanded for consideration of the
new evidence and for further proceedings. How would the DRB handle the
same situation?
F. Submitting Evidence to the DRB
New evidence can be submitted to the DRB, if it reviews a case,
under the same requirements as submission of evidence to the ALJ after
the decision is issued (and the DRB does not review a case).
However, the regulation, 20 C.F.R. Sec. 405.373(d), does not
provide a time frame for submitting the evidence to the DRB. In
contrast, after an ALJ decision, new evidence must be submitted within
30 days after the ALJ decision is received.
Questions to consider:
When should new evidence be submitted to the DRB?
Representatives need guidance for the submission of evidence to the
DRB. The written statement must be filed within ten days after
receiving the DRB notice of review. How does evidence submission
coincide with filing the written statement? Is it 30 days after the DRB
notice?
Similar to the concerns about the time limit for
submission of the written statement, what happens if a claimant seeks
representation after receiving the DRB notice of review? How can the
representative obtain a copy of the hearing file and the hearing
recording in a timely manner? Will the DRB allow for an extension of
the time to submit evidence in appropriate cases, especially where the
claimant has undergone medical testing and procedures that are new,
material, and related to the alleged disability?
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 these changes do not affect the
fairness of the process to determine a claimant's entitlement to
benefits.
As the new Disability Service Improvement process begins, we will
monitor the process with NOSSCR members in Region I states and continue
to present our concerns to the Commissioner. We believe that
communication between claimants' representatives and SSA will play an
important role in monitoring DSI implementation and assessing the
impact on claimants.
Thank you for this opportunity to testify before the Subcommittees
on this issue of critical importance to claimants. I would be glad to
answer any questions that you have.
Chairman MCCRERY. Thank you, Ms. Bohr. Mr. Skwierczynski.
STATEMENT OF WITOLD SKWIERCZYNSKI, PRESIDENT, NATIONAL COUNCIL
OF SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Mr. SKWIERCZYNSKI. Thank you, Chairman, for providing two
panels to fit my name. Thank you for the opportunity to testify
before the Committee on the commissioner's disability
improvement plan.
I represent 50,000 employees, the bulk of the agency, who
work on various aspects of Social Security's disability
program. The people I represent interview claimants, take and
process every single disability claim and appeal that is filed
in this agency.
It's the union's belief that the commissioner's disability
plan is seriously flawed in many respects and will not achieve
the goal of consistency, speed, and a better disability
product.
We think staff support is essential. The commissioner
alluded to staffing cuts. Last year, the President's budget was
reduced, which led to a 2,400 work year reduction. The
President's budget this year contains another 2,300 work year
reduction.
According to the commissioner's testimony, 2,000 more,
1,900 more would lead to about 6,700 work years over a two-year
period reduction in Social Security.
No matter what the commissioner proposes, we cannot sustain
those kinds of cuts and provide a good disability product.
The one to eight replacement ratio in the field is
outrageous. You will only create a situation where interviews
will be backlogged and appointments will be delayed, and
there's no way that that will improve the disability process.
The systems changes that are necessary, the commissioner
didn't even speak about it, are massive, and unless the proper
budgetary support is afforded, they're not going to happen.
The EDCS, our experience with the electronic claims, there
was no staff support given to the field and the initial
interviews were increased by 20 or 45 minutes, and with no
staff support, that obviously led to backlogs.
We applaud the Quick Claims unit idea. Unfortunately, we
think that should be done in the field office by Federal claims
representatives. There's no need for a handoff. The disability
claims manager pilot showed that that can be done right in-
house without that kind of a handoff.
We think it's a bad idea to use the best workers in the DDS
to do that. They're going to be the easiest claims. What you
have left is the less experienced workers doing the tough work
that's not involved in the Quick Claims.
With regards to the reviewing official, we have a problem
with that person being an attorney. We have no problem with the
concept.
We think there's plenty of SSA personnel that are involved
in the decision-making process on disabilities who can do that
work, and we think it's an insult to them to say that you have
to be an attorney to do that.
We think having attorneys in there creates a more litigious
process. You have almost every step of the way the claimant
dealing with an attorney--at the reviewing official, at the
hearing, at the DRB, and in the courts, all attorney-run
processes. That is going to create more litigation.
We think the barriers that are put into the process--where
the reviewing official has to, in order to overturn a decision,
has to have a medical expert opinion; at the next level, for
the judge to overturn a decision, he has to write a written
rebuttal to the reviewing official; and cutting off the
record--are all designed to reduce the disability rolls.
There's no doubt in our minds that that's really the goal here,
to reduce the disability rolls, and you have barriers in the
process that create litigation to arrive at that.
Getting rid of the Appeals Council, there is about a 30
percent remand reversal rate at the Appeals Council, and
getting rid of--and obviously, there's a reason for that. The
cases either are not fully developed or there's errors. That
will be lost in this process.
Closing the record prematurely ensures that people who are
disabled and file for disability benefits and don't provide
their evidence timely will not get disability benefits, or if
they re-file at a later point, they'll lose retroactivity, get
lower benefits, it will affect their Medicare, it has massive
effects on various aspects of their lives.
We think that what should happen is we should look at the
disability redesign approach.
The disability claims manager experiment we thought was
very successful.
The adjudicative officer was a little different than the
reviewing official, where they were claimant friendly, met with
the claimants, met with the attorneys, had the ability to
reverse the decision, but also assisted them in preparing for
the hearing. We think that's a more claimant friendly approach.
Frankly, neither the commissioner nor the agency has done
anything, either in terms of focus groups or in terms of
surveys to find out what the claimants actually want, what the
public wants, and during the redesign, they did, and the public
indicated they wanted a caseworker approach and they wanted to
be able to deal with the decisionmaker. This approach here does
not get to that point.
Finally, I want to say to the Commissioner, that the
employees of Social Security have not really been consulted
with regards to this plan, and they're the ones who are best
aware of how the process works and what the needs in the system
are, and I would urge the commissioner to reestablish
communications with the union who represent 50,000 employees so
that we can have input on how this plan operates.
[The prepared statement of Mr. Skwierczynski follows:]
Statement of Witold Skwierczynski, President, National Council of SSA
Field Operations Locals, American Federation of Government Employees,
AFL-CIO, Baltimore, Maryland
Chairman McCrery, Ranking Member Levin, and members of the Social
Security Subcommittee, I respectfully submit this statement regarding
Social Security's Disability Service Improvement (DSI). As a
representative of AFGE Social Security General Committee and President
of the National Council of SSA Field Operations Locals, I speak on
behalf of approximately 50,000 Social Security Administration (SSA)
employees in over 1500 facilities. These employees work in Field
Offices, Offices of Hearings & Appeals, Program Service Centers,
Teleservice Centers, Regional Offices of Quality Assurance, and other
facilities throughout the country where retirement, survivor and
disability benefit applications and appeal requests are received,
processed, and reviewed.
SSA employees are dedicated to providing the highest quality of
service to the public in a compassionate manner. AFGE represents
employees who are committed to serving communities in the face of a
significant increase of work and decrease of staff. However, the severe
cuts in budget and staff have had a detrimental effect on employee
morale and, also, the ability for SSA to fulfill public service
demands.
Although SSA's workloads have increased by 12.6 percent over the
last 5 years, and 2.7 percent in FY 05, Congress appropriated $300
million less for SSA than proposed in the President's FY06 budget
request. The result was a 2368 reduction in budgeted work years. While
SSA's proposed budget requests have compared favorably compared to many
other agencies, AFGE is concerned that the recent budget cuts may
result in dangerous levels of inadequate service to the public and
stewardship of the programs under SSA's jurisdiction.
In February 2006, SSA informed AFGE that the budget cuts would be
absorbed in staffing resources. Since then, Commissioner Barnhart
imposed a hiring reduction wherein the Agency will replace only 1 of 8
employees engaged in direct public service work in field offices who
leave SSA. These are the employees who interview disability and
disability appeals applicants.
AFGE is very concerned that such staffing cuts will drastically
affect SSA's ability to provide adequate public service to the disabled
community. AFGE also raises a number of questions regarding the
decisions to reduce direct service staffing. Why are such cuts
necessary if SSA has the resources to implement Disability Services
Improvement (DSI) which is a system that has never been tested and will
cost billions of dollars to implement? If there are insufficient Claims
Representatives and Technical Experts to take and process initial
claims, all the DSI improvements in the world won't improve the system.
The entire system requires sufficient staffing resources on the front
end to enable the public to file applications for disability benefits
that fully address the nature of their condition, their medical sources
and how their disability impacts their ability to work and to perform
routine tasks. There is currently insufficient staff to do this job.
Commissioner Barnhart's staff replacement plan will further reduce the
staff that processes disability claims. Flooding the appellate system
with dollars while slicing the staff that takes applications makes no
sense and is not an effective way of improving the system.
Commissioner Barnhart's Disability Service Improvement Plan
AFGE continues to be very concerned about the Commissioner's plans
to move forward with her disability initiative.
The record should be clarified with regards to Commissioner
Barnhart's statement that she met with the organizations that represent
SSA employees. She did. She held one meeting with all 6 SSA AFGE
presidents for the purpose of introducing her plan. That was 3 years
ago. Ms. Barnhart was not receptive to our constructive criticisms. The
leadership of six bargaining councils has more than 150 years of
specialized experience with SSA and represents 50,000 bargaining unit
employees. She refused to include experienced bargaining unit employees
in strategy sessions or workgroups that helped design the new plan. The
Union rejected this plan and Ms. Barnhart has since refused to meet
and/or discuss any subject matter with AFGE. The AFGE Local in the
Boston Region has yet to be informed of any implementation plans of
DSI. However, she has decided to meet with 2 minor unions that
represent less than 10 % of SSA employees regarding her plan. They
support it. AFGE doesn't. Her failure to meet with representatives of
employees who process disability claims every day and, consequently,
understand the disability process is dangerous and may lead to adverse
repercussions for the entire disability claims system.
Ms. Barnhart does not have the support or the buy-in of SSA
workers. In fact, SSA employees overwhelmingly oppose this disability
plan.
Currently 55 million Americans have a disability, of which 8.3
million Americans and their families receive Social Security Disability
Insurance (SSDI) (17.1% of all Social Security benefits are paid to
disabled beneficiaries and their families.) Some disabilities are long
term (e.g., broken back) while others are permanent (e.g., blindness,
quadriplegia).
Processing time for hearings appeals has dramatically increased.
Prior administrations attempted to develop different methods to
streamline the disability determination process. Some pilot projects,
such as the Disability Claims Manager, were considered to be successful
(i.e., resulted in applicants receiving benefits twice as fast) and
were overwhelmingly supported by the public. However, Commissioner
Barnhart refused to implement those pilots and instead developed a new,
untested approach to alter the process. It is the Union's belief that
the Commissioner's approach will do little to get benefits to the
disabled applicant faster or improve service. The commissioner's plan
eliminates one appeal step and implements new legal barriers to
obtaining benefits:
The rules provide for the establishment of a Quick Claims
Unit for claims filed by individuals who have obvious disabilities.
Claims that are sent to this unit are required to have a completed
disability decision within 20 days. The union favors the establishment
of such a unit. The union opposes placement of the unit in the State
Disability Determination Service (DDS). This is an unnecessary handoff.
Employees who work in SSA field offices are entirely capable of being
trained to make such disability determinations. The DCM pilot proved
that fact. SSA public surveys indicate that there is an overwhelming
desire from the public that disability decisions should be made by the
person who interviews them. The Quick Decision Units provide the Agency
with an opportunity to streamline the process by eliminating a handoff
and, at the same time, satisfy the public desire for a caseworker to be
empowered to decide both the disability and non-disability portions of
their claim. Allowing federal employees in field offices to make
disability decisions would require Congress to change the exclusivity
portions of the law that currently reserve such decisions to the state.
It is time for Congress to enact such a change in the law and improve
public service. Sending these obvious disability approval cases to DDS
units who will be staffed by the best DDS Disability Examiners will
also adversely affect the rest of the disability workload. Assigning
less experience personnel to process the toughest cases where the
decisions are not clear cut, is a recipe for disaster. The best
employees should work the most difficult cases--not the easiest.
In place of the current Reconsideration process,
attorneys (Federal Reviewing Officials) will review cases and write a
``legal decision'' that will serve as the SSA's legal position on the
case. In spite of the Commissioner's hiring freeze for direct service
positions and her claim of budget shortages, an army of attorneys are
being hired as this statement is written. The trust fund (SSA) and
general revenue (SSI) impact of eliminating reconsiderations currently
processed in the DDS and replacing them with a reviewing official
attorney is unknown. Failure to pilot this change is risky and
reckless. Substantial deviation from the current disability approval
rates could lead to unwarranted expenditures or, conversely, more
stringent policy decisions regarding the definition of a disability. In
addition, it appears that the substitution of attorneys for State DDS
Disability Examiners will result in substantially more administration
expenses. Congress should be careful to ask SSA for projected costs of
this change both on administrative expenses and benefit outlays.
Although the regulations were silent on the issue of cost analysis,
it would be crucial for Congress to request that SSA track the costs
associated with the Federal Reviewing Official, including the costs
associated with clarification and developmental requests to State DDSs
and medical providers as well as the processing time, accuracy, case
costs, allowance rates, and appeal rates.
It is also unclear as to the rules that the Federal Reviewing
Official would be utilizing in making his/her decision (i.e. listings,
case law, judgment, etc.). This would have to be identified in any
comparison if the Federal Reviewing Officials utilize different rules
than that of the State DDSs.
The Administrative Law Judge (ALJ) will now be limited in
what he/she can consider as evidence from the claimant as all medical
evidence must be presented five days prior to the hearing. The ALJ is
limited in what he/she can consider good cause for late medical
evidence notwithstanding its relevance. Prior to the Commissioner's new
approach, the ALJ was allowed total discretion to accept and evaluate
evidence. Under the new rules, the ALJ's written decision must explain
in detail why he/she agrees or disagrees with the substantive findings
and overall rationale of the Federal Reviewing Official's legal
decision. The ALJ must rebut SSA's legal decision if benefits are to be
awarded to a claimant. One can anticipate that hearing reversal rates
will decrease due to the pressure on the ALJ to uphold the Reviewing
Official decision. Claimants that currently are approved for legitimate
disabling conditions will be denied under Commissioner Barnhart's
system because of the premature closing of the record. Does Congress
actually want a system where their constituents are denied disability
benefits on a technicality?
The disability application or ``record'' will be closed
effective with the ALJ's decision, prohibiting U.S. District Courts
from accepting or considering relevant and material evidence that might
prove that the claimant is disabled. This likely will result in
thousands of new disability claims each year in the form of
reapplications. This subtle bureaucratic change realistically could
result in the loss of significant retroactive benefits for those who
refile with evidence of disability with an onset date within the scope
of the previous application. There is no reason to close the record at
any time other than to reduce the ability of claimants to present
relevant evidence to support their claim. This will surely lead to
decisions to deny benefits to claimants who are disabled under the law.
Some of the adverse affects of this new closing of the record
regulations are:
Loss of complete or partial coverage for Social
Security Disability Insurance
Loss of coverage for Medicare benefits entirely
Loss of retroactive Medicaid and Medicare coverage for
a period of time covered by current rules (from the date the claim was
initially filed to the date of the subsequent application).
Such uncertainty regarding a key element of this change in the
appellate process causes the Union to strongly suggest piloting any of
these changes. Commissioner Barnhart has rejected pilots. Besides
piloting the Reviewing Official step replacing the reconsideration, the
Union feels that the Agency should pilot the decision to require that
the reviewing official be an attorney. This decision ignores the fact
that there are many highly qualified non-attorney employees in both SSA
and the DDS's who are fully capable of deciding disability appeals and
writing logical decisions. The Commissioner both insults the current
workforce and creates difficult legal barriers for claimants to
overcome in appeals. In an attorney dominated process (i.e., Reviewing
Official and ALJ) claimants will almost be required to hire an attorney
to manage their appeals at the earliest level. This adds an element of
litigation that does not currently exist in the reconsideration appeal.
The Commissioner will replace the Appeals Council Review with a
Decision Review Board (DRB). The DRB will be appointed by the
Commissioner to review and correct ALJ decisions including approved
claims. The DRB will not review decisions by state officials (DDSs) or
Federal Reviewing Officials (FRO). This will prevent processing payment
of an approved claim and will render the ALJs decision as not final.
The process by which cases will be selected for review will be entirely
at the DRB discretion and will provide the DRB with carte blanche
authority to pick cases in a non-random manner. Such unregulated
authority is an invitation for abuse
The Appeals Council currently either reverses or remands 30% of
claims that they review.
Eliminating an appeal where such a large number of cases are either
reversed or where all the evidence was not properly assessed insures
that many claimants will be denied benefits that would be approved
under the current system. Is this the desire of Congress? Does Congress
really want to scale back the SSA disability program so that claimants
approved under the current system are now denied benefits?
A claimant's last appeal, U.S. District Court, requires
legal representation. This will severely disadvantage claimants who
lack the financial resources to either hire an attorney or travel to
District Court. Additionally, the U.S. District Court system which is
already overwhelmed is not prepared to absorb this influx of additional
cases.
Commissioner Barnhart's new approach fails to address the problems
and inadequacies of the State Disability Determination Services (DDS),
which is responsible for the initial disability decision in all claims.
AFGE strongly believes that if the initial claims level were addressed,
the need for such drastic changes to the appeal levels would be
unnecessary. But most of all, it would insure disabled claimants were
paid much sooner.
There is no consistency in State DDS disability determinations. The
taxpayer's chances of being approved for disability benefits continue
to depend more on where they live and their income.
For example, State Agency Operations records indicate that those
who can obtain medical attention early and often have a better chance
of being approved for benefits than those who have a limited income or
resources. (See Chart Below) 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. State Agency records clearly expose the inconsistencies of the
State DDS decisions.
More than 66 percent of Social Security disability claims for
benefits are approved in the Washington DC DDS, while only less than 28
percent of those who file for benefits are approved in the South
Carolina DDS. Of those who applied for SSI benefits, the State of New
Hampshire leads with more than a 59 percent allowance rate. However,
residents from the States of Michigan, Ohio, Iowa and Georgia are
approved less than 35 % of the time by their respective DDS. The
concurrent disability process shows inexplicable variable allowance
rates depending on the state of residence. Allowance rates are low in
every state. The states of New Hampshire, Arizona and the District of
Columbia approve more than 43 percent of the concurrent claims. Less
than 18 percent of those filing concurrent disability claims are
approved in Iowa, Missouri, and South Carolina.
As an illustration, following is a compilation of the allowance
rates in a sample of states:
----------------------------------------------------------------------------------------------------------------
T2 T16 Concurrent
-----------------------------------------------
Initial Initial Initial
-----------------------------------------------
Allow Deny Allow Deny Allow Deny
----------------------------------------------------------------------------------------------------------------
NATIONAL AVERAGE 44.2 55.8 36.4 63.6 25.3 74.7
BOSTON Region 53.7 46.3 43.6 56.4 33 68
Boston, MA 56.9 43.1 48.7 51.3 36.6 63.4
New Hampshire 63.8 36.2 59.2 40.8 48.2 51.8
Connecticut 47.3 52.7 34.3 66.7 23.5 76.5
New York Region 51.4 48.6 42.8 57.2 33 67
Buffalo, NY 47 53 33.8 66.2 23 77
Newark, NJ 60.8 39.6 42.1 57.9 34.9 65.1
Puerto Rico 34.2 65.8 -- -- -- --
Philadelphia Region 51.7 48.3 40.3 59.7 28.9 71.1
Maryland 49.9 50.1 35.4 64.6 24.9 75.1
PA 53.3 46.7 41.8 58.2 28.1 71.9
WA, DC 66.1 33.9 54.8 45.2 45.5 54.5
Atlanta Region 34.9 65.1 30.1 69.9 21.2 78.8
Georgia 30.3 69.7 27.1 72.9 19.1 80.9
Kentucky 39.4 60.6 33.3 66.7 21.1 78.9
Birmingham 38.4 61.6 27.5 72.5 20.7 79.3
Florida 38.5 61.5 35.5 64.5 26.4 73.6
Miami 43.7 56.3 44.8 55.2 35.6 64.4
S. Carolina 28.2 71.8 26 74 17.7 82.3
Chicago Region 41.9 58.1 30.8 69.2 21.4 78.6
Illinois 43.8 56.2 30.4 69.6 23.9 76.1
Michigan 39.3 60.7 29.9 70.1 19.7 80.3
Detroit 32 68 26.4 73.6 16.5 83.5
Ohio 39.4 60.6 27.1 72.9 19.1 80.9
Wisconsin 46.9 53.1 34 66 21.4 78.6
Dallas Region 44.2 55.8 39.2 60.8 28.2 71.8
Texas 42.7 57.3 41.6 58.4 28.6 71.4
New Mexico 47 53 44.8 55.2 31.2 68.8
Oklahoma 43.1 56.7 36.8 63.2 24.4 75.6
Shreveport 53.8 46.2 37.3 62.7 35.3 64.7
Kansas City Region 43.6 56.4 30.5 69.5 17.9 82.1
Missouri 42.9 57.1 29.8 70.2 17.4 82.6
Iowa 45.5 54.5 32.3 67.7 16.4 83.6
Denver Region 38.5 61.5 39.1 60.9 21.5 78.5
Colorado 35 65 38.6 61.4 20.5 79.5
N. Dakota 51.2 48.8 39.6 60.4 28.1 71.9
S. Dakota 45.4 54.6 34.9 65.1 18.9 81.1
San Francisco Region 50.9 49.1 44.4 55.6 32.4 67.4
Arizona 59.3 40.7 51.8 48.2 43.3 56.7
California 50.8 49.2 43.9 56.1 31.8 68.2
Bay Area 60.6 39.4 52.5 47.5 36.6 63.4
L. A. East 49.4 50.6 49.8 50.2 37.4 92.5
L. A. West 54.4 45.6 49.6 50.4 34.5 65.5
Central Valley 48.1 51.9 39.3 60.7 28.2 71.8
Sacramento 54 46 38 62 29.7 70.3
Seattle Region 43.1 56.9 41.3 58.7 24.3 75.7
Oregon 35.4 64.6 34.7 65.3 18.8 81.2
Seattle 45.4 54.6 45.4 54.6 27.1 72.9
----------------------------------------------------------------------------------------------------------------
In a system where everyone is taxed equally, this is difficult to
explain or justify. Claimants are entitled to quality consistent
decisions not withstanding their state of residence or whether they are
filing for Social Security or SSI disability benefits.
According to GAO,\1\ a majority of DDSs do not conduct long-term,
comprehensive workforce planning, which should include key strategies
for recruiting, retaining, training and otherwise developing a
workforce capable of meeting long term goals. The State DDS' lack
uniform minimum qualifications for Disability Examiners (DE's) have
high turnover rates for employees and do not provide ongoing training
for DE's. This seems to be mostly attributed to low State employee pay
and benefit scales and budget constraints.
---------------------------------------------------------------------------
\1\ GAO-04-121
---------------------------------------------------------------------------
AFGE is convinced that SSA is not able or willing to correct these
problems. AFGE has expressed these very concerns to the Subcommittee
for several years and has seen little improvement with the State DDS
situation. The State DDSs are required to use different rules that
those at the hearing levels. This too has not changed with the
Commissioner's new plan. This is a key problem that must be reconciled
in order to reform the disability system. AFGE strongly believes that
the only way to resolve the problems that plague the State DDSs is to
federalize them. This will bring consistency to the initial claims
decisions in the same way it resolved the Supplemental Security Income
problems in 1974.
AFGE has recently become aware of the preliminary Systems Impact
Assessment of SSA program modifications needed to accommodate the new
disability determination process. The modifications considered
necessary will be massive, leaving few programs untouched. Some of the
systems changes will involve modifications to State DDS systems, which
will have to be coordinated. SSA firewalls will require safeguarding
and all software written for such modifications will require approval
from the Architectural Review Board. However, approval is not certain
and programs should require extensive testing before use.
AFGE finds the extent of these required modifications to be
alarming. Is it reasonable, to begin implementation in the Boston
Region before such systems changes can be made? SSA's budgets for FY06
and FY07 do not provide the money that will be needed to accomplish the
systems changes necessary. Where do the resources come from to make
these changes? If SSA devotes all or most of its systems budget and
manpower to the Commissioner's disability initiate, won't that
adversely impact on the Agency's other systems requirements?
With staffing cuts and heavy workloads that continue to rise, is it
reasonable to use resources for an untested, unpiloted theory, rather
than to provide staffing on the front lines to improve public service?
AFGE believes the answer is clearly NO.
Commissioner Barnhart's approach fails to implement new
communication or adjudicative techniques that either improve service to
the disabled claimant or result in a more accurate or expeditious
decision. More importantly, these changes will not protect the rights
and interests of people with disabilities.
In Conclusion
AFGE strongly believes the full costs of implementing this
initiative should be determined and submitted to Congress before
implementation. Once costs can be determined, approved and
appropriated, the DSI should be piloted. The effectiveness of this
initiative should be thoroughly tracked and reviewed by SSA and
Congress before any further implementation should take place. Piloting
should include not only the DSI plan but also other proposed solutions
to the disability benefits problem such as the DCM and AO initiatives.
After appropriate pilots the Agency and Congress will be more equipped
to select the best solution to the problem.
Additionally, AFGE strongly urges Congress to direct SSA to take
corrective action with regards to the State DDS system and enact
legislation which permits federal employees to make disability
decisions without requiring the approval of the States.
Secondly, there will always be budget priorities. However, both
workers and employers contribute to the Social Security system and are
entitled to receive high quality service. It is entirely appropriate
that spending for the administration of SSA programs be set at a level
that fits the needs of Social Security's contributors and
beneficiaries, rather than an arbitrary level that fits within the
current political process.
In 2000, then Chairman Shaw and Rep. Benjamin Cardin reintroduced
the Social Security Preparedness Act of 2000 (formerly H.R.5447), a
bipartisan bill to prepare Social Security for the retiring baby
boomers. AFGE strongly encourages this Subcommittee to reconsider
introducing legislation that will provide SSA with the appropriate
funding level to process all claims and all post-entitlement workloads
timely.
Taking SSA's administrative expenses ``off-budget'' has vast
support, not only from AFGE and SSA workers, but from senior and
disability advocacy organizations. This would include AARP, the
National Committee to Preserve Social Security and Medicare, the
Alliance for Retired Americans, the Consortium for Citizens with
Disabilities, and the Social Security Disability Coalition, just to
name a few.
AFGE believes that by taking these costs OFF-BUDGET with the rest
of the Social Security program, Social Security funds will be protected
for the future and allow for new legislation, such as the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 and the
Intelligence Reform and Terrorism Prevention Act of 2004 to be
implemented without comprising public service integrity. We believe
this can be accomplished with strict congressional oversight to ensure
the administrative resources are being spent efficiently.
AFGE is committed to serve as the employees' advocate and as a
watchdog for clients, for taxpayers, and for their elected
representatives.
Chairman MCCRERY. Mr. Hill.
STATEMENT OF JAMES A. HILL, PRESIDENT, CHAPTER 224, NATIONAL
TREASURY EMPLOYEES UNION
Mr. HILL. Good afternoon, Chairman McCrery, Ranking Member
Levin, and the Members of the Social Security Subcommittee.
My name is James Hill. I have worked as an attorney advisor
in the Office of Disability Adjudication and Review (ODAR),
formerly known as the Office of Hearing and Appeals for over 23
years.
I'm also the president of Chapter 224 of the National
Treasury Employees Union that represents attorney advisors and
other staff members in approximately 110 hearing offices and
regional offices across the United States.
I thank the Subcommittee for inviting me to testify
regarding the DSI initiative.
We now stand on a precipice of fundamental change. After an
exhaustive review with input from many sources, Commissioner
Barnhart formulated significant process changes that are set
forth in the regulations that were issued on March 31, 2006.
The planning stage is over. Now, implementation begins.
Commissioner Barnhart has proposed a lengthy and thoughtful
implementation plan designed to identify and correct the
inevitable unforeseen problems and to ensure DSI functions as
expected.
The National Treasury Employees Union (NTEU) has
consistently supported DSI, and we continue to do so.
Elements of the plan, such as the quick decision units, the
elimination of the reconsideration determination, the creation
of the FedRO position, the creation of medical vocational
expert units, the elimination of the claimants' administrative
appeal of ALJ decisions, the eventual elimination of the
Appeals Council, the creation of the DRB, and the creation of
an entirely new quality assurance process as presented in the
regulations will significantly improve the disability
adjudication process.
However, there are pitfalls that must be avoided if DSI is
to succeed.
The quality assurance process must not stifle the ability
of adjudicators and medical and vocational experts to exercise
their independent judgment without undue influence.
The integrity of the FedRO decision must be maintained. It
is essential that the FedRO decision not become merely another
form of the discredited reconsideration determination.
We are also concerned that the locations of the FedROs and
potentially poor working conditions will dissuade the best
qualified candidates from applying for or accepting that
position.
Finally, we are convinced that if the current backlog in
hearing offices is not eliminated, it will strangle DSI. Simply
put, if DSI must contend with backlogs as large as those that
exist today, it will fail.
Currently, there are approximately 727,000 cases pending at
ODAR hearing offices, and average processing time is nearly 480
days. Ideally, hearing offices should have no more than 350,000
cases.
Resources are tight, so any initiative designed to attack
the backlog problem must do so without demanding a significant
expenditure of resources.
Fortunately, history provides the vehicle for the
resolution of the backlog problem: the Senior Attorney Program
1995 that produced over 220,000 fully favorable on the record
decisions and was a key factor in reducing the cases pending in
the late nineties from 550,000 to 311,000. This was
accomplished with a modest expenditure of resources.
Unfortunately that program was terminated as part of the
Hearings Process Improvement initiative.
We recommend that SSA reissue the regulations authorizing
ODARs attorney advisors to issue fully favorable on the record
decisions.
Properly administered, such a program could produce over
350,000 fully favorable on the record decisions over the next 4
years, reducing the number of cases pending to a workable level
and requiring only a relative mild expenditure of resources.
I reiterate the support of NTEU for the DSI initiative.
Mr. Chairman, again, I appreciate the opportunity to
testify before this Committee and would be happy to answer any
questions Members of the Committee may have.
Thank you.
[The prepared statement of Mr. Hill follows:]
Statement of James Hill, President, Chapter 224, National Treasury
Employees Union, Cleveland, Ohio
Good morning Chairman McCrery, Ranking Member Levin and members of
the Subcommittee on Social Security. My name is James Hill. I have
worked as an Attorney-Adviser in the Office of Disability Adjudication
and Review (formerly the Office of Hearings and Appeals) for over 23
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 Office of Disability Adjudication
and Review (ODAR) Hearing and Regional Offices across the United
States. I thank the Subcommittee for inviting me to testify regarding
Commissioner Barnhart's proposal now known as the Disability Service
Improvement Initiative (DSI) to reform the disability determination
process. My testimony today represents the views of NTEU.
Since the early 1990's SSA hearing offices have been under severe
stress caused by an adjudication process woefully inadequate to process
the massive numbers of appeals of State Agency determinations. Cases
pending at OHA hearing offices rose from approximately 180,000 in 1991
to approximately 550,000 cases nationwide by mid-1995. At that time SSA
began the Senior Attorney Program which during its pendency from 1995
to early 2000 produced over 220,000 fully favorable on-the-record
decisions. The number of cases pending at hearing offices was reduced
to approximately 311,000 in September 1999. However, 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 727,000
cases pending at ODAR hearing offices with an average processing time
of nearly 480 days. In some hearing offices processing time is
approaching two years. All agree that this is not an acceptable level
of service.
The current backlog was accumulated over the course of several
years. Elimination of the backlog will take several years; there are no
practical ``quick fixes''. Commissioner Barnhart recognized this fact
and after a comprehensive and lengthy review of the current
adjudication process, she proposed a number of fundamental changes. The
changes in the disability process were codified in the final
regulations published on March 31, 2006. The process by which these
regulations were promulgated was lengthy and involved substantial
interaction with entities internal and external to SSA that are
interested in the disability process.
The final regulations significantly alter the disability
adjudication process. They create a ``quick decision process'' to
adjudicate those claimants who are obviously disabled. They eliminate
the reconsideration determination and create an entirely new level of
decision maker; the Federal Reviewing Official. The final regulations
replace the Appeals Council with a Decision Review Board and indicate
that an entirely new quality assurance system will be created that will
function at each level of the process. The final regulations introduce
a limited number of changes in the Administrative Law Judge hearing
process but do not alter the essential nature of that process.
To facilitate the new disability adjudication process, Commissioner
Barnhart has instituted organizational changes designed to facilitate
the implementation of DSI. These changes include the creation of Quick
Decision Units at the state agencies, the creation of the Office of
Disability Adjudication and Review, and the creation of Medical and
Vocational Expert Units. The components of the Office of Disability
Adjudication and Review include the Office of the Chief Administrative
Law Judge that oversees the operations of the Agency's hearing offices,
the Office of the Chief Federal Reviewing Official that oversees the
operations involving the Federal Reviewing Officials (FedRO), the
Office of Appellate Operations (the Appeals Council) and the Office of
the Decision Review Board.
Implementation of DSI will commence in the Boston Region on August
1, 2006. The Commissioner has wisely selected the Boston Region as the
first to implement DSI for a number of reasons including its small size
(currently the Boston Region has about 3% of the hearing office
caseload) and state agencies that are efficiently processing their
workloads. Notably, the Boston Region hearing offices are not troubled
by the huge backlogs that afflict so many hearing offices across the
United States. The Commissioner also has decided that DSI will not be
expanded to other regions for at least a year. This permits the fine
tuning that will certainly be necessary in order to achieve maximum
efficiency. Only after DSI has proven its viability will it be expanded
and even then, to other small regions initially.
Quick Decisions
In order to provide timely benefits to those who are ``obviously
disabled'', the new regulations contain provisions for a ``Quick
Decision Process''. This will significantly improve the disability
adjudication process for those claimants with specified medical
conditions that normally result in a finding of disability. The
Commissioner projects that approximately 10% of initial claims can be
handled through this process. While originally scheduled to be attached
to various regional offices, the final regulation places these units in
the various state agencies. This is an example of the flexibility shown
by the Commissioner during the course of the comment period.
The Role of the Federal Reviewing Official (FedRO)
Perhaps the most innovative initiative contained in the regulations
is the elimination of the reconsideration determination and the
creation of the Federal Reviewing Official (FedRO) position, a federal
attorney with complete adjudicatory authority that is placed between
the State Agency and the Administrative Law Judge. It is absolutely
essential that the FedRO process be more than a replacement for the
current reconsideration determination which has very little credibility
with the public or with ALJs.
If DSI is to fully succeed, the FedRO must introduce an element of
credibility in disability adjudications prior to the ALJ hearing that
is presently lacking. Currently, the State Agencies provide almost no
rationale for their unfavorable determinations which seriously
undermines their credibility. It is essential that the decisions made
by the FedRO be recognized as independent decisions by an individual
who has the discretion to award or deny benefits as justified by the
record. The importance of attaining this credibility cannot be
overstated. The final regulations removed some, but not all, of the
ambiguity in the proposed regulations that led many to question whether
the FedRO is an independent decision maker. If the FedRO turns out to
be ``just a federal reconsideration determination'' DSI will fail.
To enhance the credibility of the FedRO 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 FedRO
process must establish its credibility with claimants, the State
Agencies, Administrative Law Judges and most importantly with the
American public. 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 written decision. It also demands extensive
knowledge and experience in evaluating the functional effects of
medical impairments. The FedRO must have extensive legal and disability
program knowledge and experience. Fortunately, SSA already employs
personnel with the education, training, and experience to decide and
draft disability decisions necessary to assure the success of the FedRO
process--ODAR Attorney Advisers.
The expertise of each individual FedRO is vital to the success of
DSI. It is essential that the Agency secure the best available
applicants. The first 70 FedROs will be located in the Washington
metropolitan area, close to or at ODAR headquarters. Given the number
of unknown factors associated with the ``start-up'' of this new
process, it is prudent that it be located centrally. However, there is
a significant downside to such a centralized location in that many of
the best qualified potential applicants will not compete for the
positions simply because of the location and the general
unattractiveness of the proposed working conditions. It is essential
for the success of DSI that the key position in DSI, the FedRO, is
accessible to those most qualified to successfully perform the
requirement of the position. That entails locations convenient to those
highly qualified individuals as well as working conditions conducive to
enticing the best to apply and accept the appointment. Hopefully, SSA
will recognize that acquiring the best possible applicants requires
that the position must be made attractive, and in the future, it will
adjust its hiring strategies to facilitate acquiring the best possible
personnel.
There is a larger issue involved in the eventual placement of FedRO
personnel. When citizens think about the Social Security
Administration, they do not perceive it as a far off governmental
bureaucracy located in Baltimore. Most do not even know that SSA
headquarters is in Baltimore. When most citizens think of SSA, they do
so in terms of their local SSA office where they can deal face to face
with SSA employees who are their neighbors. This is an invaluable asset
not only to SSA but to the public we serve. Is it likely that SSA would
have delivered such spectacular service to the people of hurricane
damaged Louisiana, Mississippi, Alabama, and Texas if it had been a
faceless bureaucracy located somewhere inside the ``Beltway''? SSA is
what it is in part because it is neighbors serving their neighbors. The
rationale that applies to the wisdom of maintaining local field and
hearing offices should also apply to the FedRO. Citizens are much more
comfortable dealing with their government on a local basis with people
who are their neighbors, not strangers half a country away.
An important objective of DSI is to facilitate consistency at all
decisional levels. The inconsistency of decision-making between the
state agencies themselves, state agencies and ALJs, and even among ALJs
themselves has been a constant source of criticism. However, it must be
understood and accepted, that the complexity of disability
determinations and the difference in the effects of medical conditions
on each individual leads to some perceived inconsistency in the
decisional results. Nonetheless, the final regulations do facilitate
decisional consistency without interfering with the decisional
independence of adjudicators at all three levels through several
modalities including the FedRO process itself and a comprehensive
quality assurance program.
The requirement that the FedRO produce a well reasoned legally
defensible decision using the same rulings, regulations, court
decisions, and statutes as are used by the ALJ should greatly enhance
decisional consistency. DSI initiates feedback loops among the various
levels of adjudication that will provide each level with insight into
the thought processes of the other decision makers. If the FedRO
decision is different from that of the State Agency, the FedRO's
written decision will explain to the State Agency why a different
decision was reached. This level of communication, both formal and
informal, between the FedRO 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
regulations will result in the reality and the perception that the
proper decision is being made at the earliest possible time. The FedRO
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
FedRO assists the claimant and his/her representative in marshalling
evidence needed to establish disability.
The ALJ Hearing
The final regulations wisely retain 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 had been
expressed about the relationship between the FedRO and the ALJ. The
final regulations make it clear that the FedRO 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 of DSI 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 final regulations replace the Appeals
Council with an end-of-line review by a centralized quality control
unit known as the Decision Review Board. 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. The final regulations
recognize that 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. In any event, the measured
implementation process that limits DSI to the Boston Region for at
least one year will permit an opportunity to observe the impact of the
elimination of the Appeals Council on the number of court filings.
While appealing unfavorable ALJ decisions directly 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. The
final regulations permit claimants to appeal dismissals to the
Disability Review Board.
AeDIB
The Commissioner has made it clear that inauguration of her new
approach is predicated upon the successful implementation of AeDIB. 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, AeDIB is
progressing as well as can be expected. Components of AeDIB such as
digital recording of hearings, video teleconferencing for conducting
hearings, and a new case management system (CPMS) have been
successfully accomplished. Decision writing templates that
significantly improve the quality of written ALJ decisions have been
enthusiastically received and continue to be made even more user
friendly. The Agency has determined that dual monitors are necessary to
maximize the utility of the electronic folder and in fact has commenced
the purchase and distribution of a second monitor to those employees
who duties require the use of two monitors. Of course the most
important and most complex component of AeDIB is the electronic folder
itself.
The savings, both in time and money, that will 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.
Implementing electronic folders is a massive undertaking and the
consequences of failure are catastrophic. However, the realistic
attitude and the competency of Agency personnel charged with the
responsibility of implementing the electronic folder has resulted in a
process that is proceeding as well as can be expected. They have
demonstrated a capacity to listen to the comments from end users and
introduce improvements on a nearly continual basis. There is every
reason to expect the electronic folder to be a technical success.
However, the Agency should recognize that the fundamental differences
in the interface between employees and the electronic folder and the
current interface between employees and paper folders may render some
tasks more time consuming than is presently the case.
The Backlog at Hearing Offices
The disability backlog problem at ODAR is neither recent nor
entirely intractable, but it is persistent.
As of the end of April 2006 there were 727,629 cases pending at
ODAR hearing offices. The optimal level of cases for efficient ODAR HO
operations is 350,000 cases. While DSI will significantly improve the
adjudication process, it will have little impact on the current
backlog. In fact, if the backlog problem is not addressed it will
strangle the Commissioner's DSI initiative. Unless the backlog at ODAR
hearing offices is eliminated, DSI will be no more effective in
providing timely service they we are now. Fortunately, history provides
the vehicle for the resolution of the backlog problem--the Senior
Attorney Program begun in 1995. The solution is to use current staff to
perform the adjudication needed to deal with this problem.
It is not a coincidence that during the time the Senior Attorney
Program was in operation (1995-2000) the number of cases pending at OHA
hearing offices declined, nor is it a coincidence that the number of
cases pending increased after the Senior Attorney Program was
terminated as part of the Hearings Process Improvement Plan (HPI). Over
its five year history, the Senior Attorney Program produced 220,000
decisions which when combined with record ALJ productivity reduced the
number of cases pending at hearing offices from 550,000 to 311,000
cases. This was accomplished with a relatively modest expenditure of
resources. HPI eliminated the Senior Attorney Program because it was
believed that the Senior Attorney Program was no longer necessary. The
termination of the Senior Attorney Program, the implementation of the
disastrous HPI initiative and increased receipts have resulted in a
record number of cases pending. ODAR has a serious backlog problem, and
there is no reason to expect a significant improvement in the
foreseeable future.
As discouraging as the increase of cases pending may be, it does
not fully reflect the harmful effect of the backlog on the public.
Average processing time at the hearing office level was approximately
270 days at the beginning of FY 2000; now it is nearly 480 days. In
some locales, claimants have to wait nearly two years for a hearing.
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.
The backlog has risen despite system and process improvements and
record ALJ productivity levels. Current initiatives have not materially
affected the backlog because they fail to deal with the underlying
causes of the backlog. The root causes of the hearing office backlog
are the number of receipts, too few adjudicators for the size of the
caseload, and an inefficient adjudicatory process. Little can be done
about the number of receipts. Fiscal considerations preclude acquiring
the massive number of ALJs that would be required to effectively reduce
the backlog. ODAR must look elsewhere for the additional adjudicators
temporarily needed to deal with the backlog problem.
Consistent with my testimony at previous hearings, we recommend
implementing an improved Senior Attorney Adjudicator Program. If
implemented this program would produce approximately 370,000 high
quality favorable decisions over the next four fiscal years,
effectively eliminating the backlog by the end of FY 2010, with a
minimal increase in resources. Additionally, none of those cases would
need to be worked up (pulled) as Senior Attorney Adjudicators would
review and decide unpulled cases. This will significantly reduce the
backlog of cases to be pulled.
A Senior Attorney Adjudicator Program would invest the authority to
issue fully favorable on-the-record (OTR) decisions in all hearing
level attorneys with at least 3 years experience. All qualified ODAR
attorneys with at least three years' experience would assume decision
making as well as ALJ decision drafting duties. The addition of
decision making duties necessarily reduces decision writing capacity.
However, because most ALJ decision writing will continue to be done by
attorneys, replacing lost decision writing capacity can be accomplished
by redirecting current assets. The original Senior Attorney Program
demonstrated the validity of this concept. To further ensure quality,
all Senior Attorney decisions would be drafted in the new decisional
templates, formatted for Senior Attorney signature, and a Lead Senior
Attorney position would be created. This individual would review
hearing office (HO) decision drafts, including those drafted by Senior
Attorneys, and provide feedback on quality to management, the writers
and the Senior Attorneys.
The large number of Senior Attorneys who would perform both the
function of decision maker and decision writer ensures that each
hearing office would have maximum flexibility in managing its workload.
Requiring that Senior Attorneys still draft ALJ decisions ensures that
ALJs continue to have access to the most skilled and experienced
decision writers. No DSI cases would be subject to adjudication by a
Senior Attorney.
In addition to making a positive, immediate, and effective impact
on the backlog, a Senior Attorney Adjudicator Program would act as a
training program for the Federal Reviewing Official (FedRO) position.
Over the next five years, SSA will hire or promote over 2000 attorneys
for the FedRO position that the Commissioner has repeatedly declared to
be the linchpin of DSI. Hiring new attorneys in ODAR hearing offices
will permit them to learn the SSA disability adjudication process under
the mentorship of Senior Attorneys and Administrative Law Judges.
Eventually, those successful as Attorney Advisers would become Senior
Attorneys. Those successful as Senior Attorneys would be prime
candidates for the FedRO position. The selection of FedROs would be
based on demonstrated performance and not the vagaries of a merit
selection system.
The conversion of a large number of ODAR Attorney Advisers to part
time decision making Senior Attorneys will result in an immediate and
substantial improvement in ODAR service to the public at minimal
additional cost. Based upon the Agency's experience with the original
Senior Attorney Program, and with the full cooperation of hearing
office management (lacking during the original Senior Attorney
Program), this initiative could produce as many as 100,000 quality
decisions a year without diminishing ALJ productivity or changing the
overall payment rate. Based upon previous experience, the average
processing time for these cases would be approximately 100 days.
Additionally, the minimal staff time and complete lack of ALJ time
spent on these cases frees the staff and ALJs to spend more time on
processing those cases requiring a hearing. The staff will benefit
greatly from the significant reduction in the pulling workload caused
by the Senior Attorney Adjudicator Program. The reduction of the
backlog will significantly enhance the ability of hearing offices to
more efficiently transition from paper to electronic files and will
enable hearing offices to effectively fulfill their role in the DSI
process.
The savings in administrative costs to the Agency and human costs
to the claimants by eliminating unnecessary hearings would be
substantial. Adjudicating cases that should have been paid without the
need for ALJ involvement will not only provide much more timely service
to those disabled claimants, but it will free ALJs to hear only those
cases requiring a hearing thereby shortening the time those claimants
must wait for a disability decision. The savings and improved service
that would result from the implementation of a Senior Attorney
Adjudicator Program based upon the original Senior Attorney Program
would be substantial. This program would greatly facilitate the
transition from the current system to DSI.
Mr. Chairman, again, I appreciate the opportunity to testify before
this committee and would be happy to answer any questions members of
the committee may have. Thank you.
Chairman MCCRERY. Thank you, Mr. Hill. Judge Bernoski.
STATEMENT OF THE HONORABLE RONALD G. BERNOSKI, PRESIDENT,
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES
Mr. BERNOSKI. Thank you. Thank you, Mr. Chairman. Thank you
for inviting us to testify here today.
I appear as the president of the Association of ALJs, and
we represent about 1,100 ALJs in the SSA, and there are about
1,400 ALJs in the entire Federal government.
We support the commissioner's plan for reform of the Social
Security disability process, and we worked with her during the
development of the plan, and we've committed to work with her
during its startup in Region I and its rollout across the
country.
However, in our opinion, the changes in the plan cannot
occur without help from outside sources, and the major support
must come from Congress, because the plan must be properly
funded. The failure to fund the changes will lead to failure of
the plan and to catastrophic results, including unprecedented
backlogs, all to the harm of the American people.
Now, with regard to particular aspects of the plan, the
reviewing official, or the FedRO, will require new funding, and
this change, as indicated previously today, is really, and we
agree, the centerpiece of the reform plan.
The primary function of the FedRO is to ensure that the
cases are completely prepared for hearing and to award cases
that meet the standard for disability as early possible in the
process.
Now, we all know that it takes time to prepare a case for
trial and it is vital that SSA does not expect these FedROs to
do too much.
Now, we have heard that the FedROs will be expected to
produce two cases per day. However, we believe that this is
more than a person can accomplish while producing a quality
work product.
The expectation of two cases per day was one of the reasons
that caused the Adjudication Officer (AO) program to fail, and
we should learn from that failure not to commit the same
mistake again.
Requiring too much from the FedRO will result in poorly
developed case files and the wrong cases being paid. If ALJs
receive poorly developed files, we'll have the same amount of
work as we do now, but we'll have fewer support staff to assist
us, which is going to lead to larger backlogs.
We are of the opinion that at least two FedROs plus support
staff will be required for each ALJ.
Now, the plan requires that the FedRO position be staffed
by an attorney, and we are of the opinion that the skill and
training of an attorney is vital to perform the
responsibilities of this position and to producing the expected
quality of work product.
Now, also, the separation between the ALJ and the FedRO
must be maintained. It must be remembered that the ALJ does not
hear the case on appeal from the FedRO, but instead conducts a
de novo hearing.
The ALJs are required to make decisions based on the
evidence that was produced at the hearing and for the record,
and judges should not be expected to comment on the differing
aspects of the FedRO determination, because this only creates
an opportunity to claim error on appeal.
We further believe that the ALJ hearing must become more
structured under the reform plan.
Our cases will now go directly to the Federal courts, go
the Federal courts on appeal, and the courts are going to
require a higher quality work product. This will require more
sophisticated medical and vocational expert testimony be
produced at our hearings, and that better written hearing
decisions be prepared by attorney writers.
It is of little value for us to conduct an excellent
hearing if the work product does not capture it in a well-
written and analyzed decision.
Now, in closing, Mr. Chairman, the commissioner should be
given credit for assuming the huge task of converting our paper
file system to the electronic eDib system, but again, this
program is going to have to be fully funded.
Experience has shown at least initially that the conversion
from the electronic file to the eDib--or from the paper to the
eDib system has slowed down the processing time, and our judges
have reported to us that the electronic system itself is slow,
and this is reducing the amount of work that the user can
produce; and both of these factors are going to reduce the
number of cases that can be heard and the number of decisions
that can be written, and funds must be provided to correct this
problem within the system.
Now, in closing, SSA is the only adjudicative body that not
have established rules of procedure, and we believe that
comprehensive rules must be adopted to provide the structure
that's needed to implement this new process.
Thank you very much.
[The prepared statement of Mr. Bernoski follows:]
Statement of Judge Ronald G. Bernoski, President, Association of
Administrative Law Judges, Inc., Sussex, Wisconsin
Mr. Chairman and Members of the Subcommittee:
I. INTRODUCTION
Thank you for the opportunity to testify before you 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
Disability Adjudication and Review (ODAR) of the Social Security
Administration (``SSA'') in Milwaukee, Wisconsin, for over 25 years.
I am the President of the Association of Administrative Law Judges
(``AALJ''). Our organization represents the administrative law judges
employed in the Social Security Administration 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. The AALJ
represents about 1100 of the approximate 1400 administrative law judges
in the Federal government.
I. STATEMENT
The Association of Administrative Law Judges supports the
Commissioner's reform plan for the Social Security disability system.
We have endorsed the plan and we have worked with Deputy Commissioner
Martin Gerry to improve it during the developmental phase of the plan.
As a result, some of our proposals have been included in the final
regulations. We have an agreement with the Commissioner to work closely
with her during the implementation of the reform plan which will begin
in Region I. We have both made a commitment to have frequent meetings
during this initial phase to look for problems areas and to ensure
success of the ``start-up''. We will continue to work, in a like
manner, with Deputy Commissioner Lisa de Soto (ODAR) to achieve success
as the plan starts in Region I and expands across the nation.
However, we believe that the changes included in the reform of the
Social Security disability system can not occur in a vacuum, and that
assistance will be required from outside sources. The major outside
support must come from Congress as the reform plan must be fully
funded. The failure to completely fund the changes will lead to
catastrophic results including unprecedented backlogs. As a result, the
American people will suffer by having to wait even longer for their
critically important hearings.
Federal Reviewing Official
The Federal Reviewing Official (FRO) will require new funding. We
agree with the Commissioner that the FRO is the ``center piece'' of the
reform and if it fails the entire reform plan will fail. We are of the
opinion that at least two FRO's, plus support staff, will be required
for each administrative law judge (judge). The primary function of the
FRO is to ensure that cases will be completely developed and ready for
hearing. The FRO will have the further responsibility to identify the
claims that meet the standards for SSA disability and award those
claims as early as possible in the process. This function is an
extremely time consuming task, because it requires the FRO to work
closely with both physicians and attorneys in the preparing the hearing
files. Physicians and attorneys are both extremely busy professionals
and frequently multiple contacts are needed to obtain requested
information. As we all know, it takes time to prepare a case for trial.
It will be a serious error to place an unreasonable production
requirement on the FRO's. The production number which has been
whispered in the halls of ODAR of two fully developed cases per day
will ultimately result in poor quality work and remands back to the FRO
from the judge. In our view, a production requirement of this level
could not be met under normal sustained working condition and would not
yield the quality work product expected and needed from the FRO's. We
must remember that the high production requirement of two cases per
day, was one of the major factors leading to the failure of the piloted
Adjudication Officer program in the 1990's. The Adjudication Officer
had many of the same functions and responsibilities of the FRO and we
should acknowledge the reasons for the failure of that program and
learn from our past mistakes. If the FRO fails to perform as expected,
the judges will receive poorly developed case files. This failure will
leave us in a worse condition than we now experience. The reform plan
anticipates that judges will have fewer support staff. If a failure in
the reform results in the same workload for the judges, and we have
fewer support staff, we will never be able to hear and decide our cases
in a timely and high quality manner. The result will be an increase in
the case backlog which will be to the detriment of the American people.
High production requirements for the FRO also carry with it the
potential of resulting in too many claims being awarded or the wrong
claims being paid. We are certain that this is not the result intended
by the Commissioner in developing this reform plan.
Attorneys as FRO's
The reform plan requires that the FRO position will be staffed by
persons who are trained as attorneys. We are of the opinion that this
is a vital component of the plan. The skill and training of an attorney
is needed to adequately perform the responsibilities of this position.
An attorney is best qualified to provide high quality legal analysis
and legal writing required to completely perform the responsibilities
of this position, as well as similar positions in the hearing office.
Interaction Between the Judges and FRO
As stated above, the primary responsibility of the FRO is to
develop the evidence in the case and prepare the case for hearing. The
judges must receive a complete work product from the FRO for the new
process to be a success. When preparing the written hearing decision
the judge should not be required to comment on elements in the decision
of the FRO that differ from the decision of the judge. The case is not
before the judge on appeal from the FRO. Instead, the judge conducts a
de novo hearing on the claim and makes a finding based on the evidence
produced for the record during a face-to-face hearing. In fact, this is
the only time in the entire SSA disability process (including Federal
court) where the claimant is given an opportunity to appear and ``state
his/her case'' to a government official. It is thereby vital that the
decision be based on the evidence in the hearing record with the judge
weighing the evidence and making credibility findings. This decision
should not be encumbered by requiring comments on the FRO decision,
which are not relevant to the hearing evidence. Any required commenting
only provides an opportunity to claim error on appeal.
The Administrative Law Judge Hearing
We are of the opinion that the administrative law judge hearing
must become more structured and formal in the new process. This will
require that more sophisticated medical and vocational expert witness
testimony be produced at the hearing and that a well written decision
be prepared by the decision writer. The most frequent complaint that we
hear from the judges, and the United States District courts, relates to
the poor decisional quality. Regrettably, this result obtains in many
cases because of the poor quality of the writing from our non-legal
writing staff who, for the most part, have no formal education beyond
high school. It is of little value for the judge to conduct an
excellent hearing with sophisticated evidence if the same is not
captured and correctly analyzed in the written hearing decision. In
administrative law, the written decision remains a vital part of the
case record, and the most common criticism we receive from the Federal
courts relates to the lack of an adequate rationale in our decisions.
Since under the new process, most of our cases will go directly to the
Federal courts on appeal we will be required to perform at a level
expected by the Federal courts. If we do not meet this expectation, the
agency will receive severe criticism from the courts and will suffer
lasting embarrassment. A significant part of this problem can be
addressed by requiring that all decision writers be trained as
attorneys, but the hearing process must also be improved. Writing
templates which have been developed by the agency could never
substitute for the training and education received by attorneys. Legal
training equips them with the necessary tools to correctly analyze and
write legally defensible decisions.
The Electronic File, e-DIB
The Commissioner should be given credit for her leadership in
converting the SSA paper file system to an electronic process. This has
been a large undertaking and it moves SSA into a modern system of
record keeping. e-DIB, or the electronic file, must also be fully
funded both for its implementation and subsequent needed improvements.
Funds must be available to provide sufficient electronic equipment for
the judges, staff, hearing rooms, claimant use and remote hearing
sites. Hearing rooms must also be increased in size to allow space for
the installation of the new electronic equipment. The hearing rooms
must be designed for safety with measures taken to ``build in'' or
conceal the numerous wires that are now lying on the floors in the
currently retrofitted hearing rooms. The current retrofitted undersized
hearing rooms, with wires lying about, create a dangerous environment
for both claimants and SSA employees.
Experience with e-DIB has shown that use of the electronic file
slows the work process at all levels, including both the DDS and
administrative law judge levels. We have also received information from
our judges indicating that the current e-DIB system reacts very slowly
to user commands. This poor response time slows down the user of the
equipment and reduces the amount of work that can be produced. The
result of both factors will be an increase in the case backlog because
fewer cases will be heard and fewer decisions will be written. We have
discussed this problem with agency officials, and they have assured us
that they are aware of this problem and are working to have it
corrected. We are of the opinion that funding must be provided to
correct this soft ware problem and to increase the speed of the e-DIB
system.
Rules of Procedures
We are the only adjudicative body in this country that does not
have established rules of procedure. About five years ago the agency
and the AALJ formed a Joint Rules Committee to developed proposed rules
of procedure. The Committee worked for several years developing an
excellent proposed code consisting of rules of procedure that were in a
large part based on the existing rules of the Department of Labor. The
proposed rules were given to the Commissioner and she incorporated some
of the rules into the new process, but many have not been implemented.
We are of the opinion that the remaining rules should be
implemented by the agency. These are not substantive rules and do not
require ``notice and comment'' under the Administrative Procedure Act.
Since most SSA claimants are represented, these rules are needed to
provide structure to our hearing system. The rules can provide for a
relaxing of the procedural rules for pro se claimants.
The proposed rules will are provide the formality and structure
required by the Federal courts. We have pledged to work with the
Commissioner on developing these rules, and we are of the opinion that
it will be a serious error not to promulgate these rules.
Chairman MCCRERY. Mr. Flack.
STATEMENT OF GARY FLACK, CHAIRMAN, SOCIAL SECURITY SECTION,
FEDERAL BAR ASSOCIATION
Mr. FLACK. Mr. Chairman, the Social Security section of the
Federal Bar Association (FBA) welcomes this opportunity to
share our thoughts about the new final regulations to improve
the disability claims process.
I am the Chair of the Social Security section of the FBA.
We commend Commissioner Barnhart for her efforts to improve
the disability determination process. This Subcommittee is also
to be congratulated for its oversight role in having conducted
hearings on the problem and now on the solution.
Today I focus my testimony on several aspects of the final
rule.
First, will the reviewing official delay proceedings or
become an institutional hurdle claimants must overcome?
The office of the FedRO is a more accessible but federally
controlled decisionmaker. Unless there are at least as many
FedROs as ALJs, the caseload of each FedRO will soon exceed the
heavy caseload that the ALJs have today.
Too large a caseload will not only delay decisionmaking but
also interfere with accurate decisionmaking, so we agree with
the others that there have got to be plenty of FedROs.
Also, we're concerned that the FedRO decisions may become
an institutional barrier in disability determinations.
Some ALJs may utilize the FedRO decision to deny benefits.
Other ALJs may regard it as a hurdle the claimant must
overcome.
If an ALJ reverses the FedRO's decision, then the DRB may
question the ALJ's decision based on the earlier FedRO
decision.
The commissioner must provide procedural guarantees to
assure the independence of the ALJ's decisionmaking. It is the
fair hearing that's the centerpiece of the disability
adjudication process, not the FedRO.
Our second concern is how the Federal judiciary is used as
a measure of the success of the DSI. This has been addressed by
several of the speakers, and the commissioner as well.
We think that it's great that the commissioner is
developing all these different statistics as to whether there's
a voluntary remand, whether there are substantive mistakes, and
looking at these numbers is critical to accurately see how the
program is working.
One thing that I don't think many speakers have mentioned
is that you have to keep track of Sentence 6 remands when
there's new and material evidence that somehow didn't get into
the system before. If there's a lot of those Sentence 6
remands, then the system isn't working as well as it should.
Our third concern is will Region I predict how well DSI
will work elsewhere?
The appendices attached to our written testimony suggest
that Region I, as you noted, is already approving an above
average number of claims with very few court challenges. The
system is working pretty well there.
We conclude that the pilot project may work well in Region
I, but poorly elsewhere.
As we noted in our materials, it's likely to take about 3
years before you get accurate numbers from the district court,
because it takes a long time for all this to play out, so we're
not sure how quickly this system can be rolled out.
Our final concern is whether the DRB will undermine the
independence of the ALJs.
We fear that the DRB and its computer-based predictive
model will intrude on the traditional independence of ALJs.
The ALJs worry that the benefits of a fair hearing will be
overturned by a review board that did not see the claimant or
attend the hearing.
Private practitioners worry that the computer program, not
the individual ALJ, will become the de facto decisionmaker.
The commissioner's computer-based predictive model probably
will not be as blunt as the discredited Bellmon review, but we
fear it will unduly shape ALJ decisions.
Thank you for the opportunity to appear before you today.
I'd be happy to answer any questions you have.
[The prepared statement of Mr. Flack follows:]
Statement of Gary Flack, Chairman, Social Security Section, Federal Bar
Association, Atlanta, Georgia Chairman McCrery, Representative Levin
and Members of the Subcommittee:
The Social Security Section of the Federal Bar Association (FBA)
welcomes this opportunity to share our thoughts about the new final
regulations changing the disability claims process, the ``Disability
Service Improvement'' (DSI) initiative. This testimony is submitted on
behalf of the Social Security Section of the FBA. I am the chair of the
Social Security Section of the Federal Bar Association, and this
testimony does not necessarily represent the views of the national
organization.
As you know, the FBA 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 FBA. There are also within the FBA over a
dozen sections organized by substantive areas of practice, including
the Social Security Section. The FBA's Social Security Section is
unlike other organizations of lawyers associated with a particular
constituency of Social Security disability lawyers. Our members include
attorneys involved in all aspects of 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.
Social Security Administration Commissioner Jo Anne B. Barnhart
issued a final rule establishing a new disability determination process
on March 31, 2006. 71 Fed. Reg. 16424 (Mar. 31, 2006). This rule is the
culmination of much analysis, thought, and hard work. The Commissioner
is to be congratulated for recognizing that the administrative process
she inherited failed to efficiently and accurately identify many
disabled claimants. She conferred with representatives of many groups,
including our Section, that are interested and involved in the agency's
disability determination process. The final rule reflects the input
from almost 900 individuals and groups; their comments were made in
response to the Commissioner's proposed rule.
This Subcommittee is also to be congratulated for its oversight
role in conducting hearings on the problem and now the solution. Today,
we focus our testimony on four aspects of the final rule:
Will the reviewing official delay proceedings or become
an institutional hurdle claimants must overcome?
How should the success of DSI be measured?
Will Region I predict how well DSI will function
elsewhere?
Will the Decision Review Board undermine the independence
of ALJs?
WILL THE REVIEWING OFFICIAL DELAY PROCEEDING OR BECOME AN INSTITUTIONAL
HURDLE CLAIMANTS MUST OVERCOME?
The Reviewing Official (RO) replaces the Reconsideration level of
review. It appears to be a more informal, but federally-controlled
decision maker. The FBA is concerned that the RO will be quickly
overburdened and delay the process of developing accurate decisions.
The RO is likely to need updated information, outside consultative
examinations, and (if the RO contemplates paying benefits) the opinion
of the new medical and vocational expert system. Unless there are as
many ROs as there are Administrative Law Judges (ALJs), the caseload of
each RO will soon equal or exceed the average ALJ caseload. Too large a
caseload will not only delay decisionmaking, but also interfere with
accurate decisionmaking. The RO may become a bottleneck, particularly
since the RO must write his own detailed decision. Accordingly, we
believe there should be more ROs than ALJs to move cases expeditiously.
There also may be undue delays associated with consultative
examinations and permitting claimants to share these consults with
their treating physicians. This process may work well with represented
claimants. However, it is unclear how pro se claimants who are
illiterate or computer-illiterate will handle electronic files or view
the new consults. DSI does not specifically address these claimants in
its new rules.
In addition, there may be a tendency for the RO decision to become
an institutional standard in disability determinations. Some ALJs may
utilize it to deny benefits. Other ALJs may regard it as a hurdle to
overcome. If an ALJ reverses the RO's decision, the Decision Review
Board (DRB) may question that decision based on the RO decision. The
DSI must provide procedural guarantees to assure the independence of
ALJs decisionmaking. It is the fair hearing that is the centerpiece of
the disability adjudication process, not the RO.
Finally, we understand that initially all the ROs will be located
in Falls Church, Virginia. This might make sense with the participation
of one small region as a pilot project. However, as the DSI expands and
the RO workforce grows to a size of at least 1100 ROs, we believe RO
dispersal throughout the country should be considered. They could still
review claims nationwide. There is likely to be a better pool of
qualified applicants available if the Commissioner were to place them
at regional locations. There are also less expensive places to live
than Falls Church. In short, whatever the advantages of initially
housing ROs in one location, we believe that decentralization of the RO
workforce around the country should be pursued after the completion of
the pilot project phase.
HOW SHOULD THE SUCCESS OF DSI BE MEASURED?
There are two primary measures of the success of DSI, involving the
payment of claims by the Reviewing Official and the dynamics of
judicial review.
Payment of Claims by the Reviewing Official
The purpose of the RO is to make the correct decision sooner.
Accordingly, more claimants cases should be approved at the initial and
RO levels than are currently approved through the reconsideration
level. Fewer cases should appear for adjudication at the ALJ level. DSI
can be regarded as a success if relatively more claims are paid
initially at the RO level.
Dynamics of Judicial Review
After the DRB approves an ALJ decision, there are several other
measures of the success of DSI.
Do voluntary remands of federal complaints decrease after
the abolition of the Appeals Council?
Are there fewer technical errors? (For example, lost
files, blank CDs etc.)
Are there fewer obvious substantive mistakes than before?
(For example, failures to follow the treating physician rule, improper
uses of vocational experts, etc.)
Is there a reduced percentage of substantive court
decisions in favor of plaintiffs?
Are there fewer ``sentence 6'' remands because ``new and
material evidence'' is appropriately added to the record via the
discretion of the ALJ?
Even with a faster administrative processing time, it is likely to
take at least a year for cases to work their way to a final
administrative denial. It will probably take another year for the first
cases to proceed through federal District Court review. Thus, it is
likely to take an additional two years to get one full year's worth of
substantive decisions from the district courts of Region I. If the DSI
process starts in August 2006, it will be approximately August 2009
before we have a year's worth of substantive judicial decisions. We
wonder whether the Commissioner will delay extending the new
regulations to other regions for three years, i.e. until there is one
year's worth of substantive decisions from Region I.
WILL REGION I PREDICT HOW WELL DSI WILL WORK ELSEWHERE
Region I of the Social Security Administration is comprised of the
States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island
and Connecticut. We are concerned that Region I may not be typical of
how Social Security disability claims are processed in the rest of the
country. We believe, based on anecdotal and empirical evidence, that:
more Region I claims are favorably decided at the initial and
reconsideration levels; the ALJs are efficient and more likely to make
accurate decisions; relatively few cases are appealed to federal court.
Thus, we conclude that the pilot project may work well in Region I, but
poorly elsewhere.
Region I is one of the smaller regions in the country in the number
of ALJs (approximately 50) and in the number of new cases ALJs receive.
In a recent quarter, Region I ALJs disposed of almost 1300 more cases
than it received. Only Region III, a much larger Region, disposed of a
greater number of cases than it received. Region III handles many more
cases, absolutely, and presumably with more ALJs. Most of the other
Regions disposed of fewer cases than each received, i.e., the ALJ
caseload of most Regions increased.
Region I handles approximately 3% of the total number of new
applications filed throughout the country. While we applaud the concept
of DSI, very few claimants will obtain any benefit from the new rules
so long as they are applied only in Region I, despite the increasing
numbers of claimants in the system with claims awaiting evaluation.
We have attached the state-by-state allowance rate for initial and
reconsidered claims (See Appendix 1). New Hampshire has initial
allowance rates in excess of 60%. Massachusetts and Rhode Island
initially allows about 46% of initial claims and 54% of reconsidered
claims; Vermont allows about 45% of initial claims. Maine and
Connecticut are somewhat lower at 38% and 19% respectively for initial
and reconsidered claims. However, the favorable initial and
reconsidered decision rates for Connecticut and Maine (the lowest of
the Region I States) appear to be higher than national average.
Region I is a small, efficient region that approves a higher than
average percentage of claims both initially and at the reconsideration
level. ALJs in Maine ruled in favor of claimants in 77% of their
decisions in the year ending September 26, 2003. Rhode Island had the
lowest ALJ allowance rate in Region I. Its ALJs ruled in favor of 60%
of the claimants. Region I has one of the highest ALJ allowance rates
in the nation. (See Appendix 2)
Perhaps for these reasons, relatively few cases in Region I
historically have gone to federal court: only 322 in the entire Region
I. (See Appendix 3, statistics from the Administrative Office of the
U.S. Courts regarding Social Security law from the Region I States in
the most recent 12-month period, ending March 2005). The District Court
outcomes in Region I may not be statistically significant because of
the small caseload. It is not self-evident that this is the most
typical region to try out the DSI reforms.
We have no information about whether Region I adjudicates an
``average'' range of cases including sickle cell, mental impairments,
mental retardation, illiteracy? SSA will need to track this.
WILL THE DECISION REVIEW BOARD UNDERMINE THE INDEPENDENCE OF ALJ'S
The Commissioner intends the DSI to provide quality assurance
throughout the Social Security disability adjudication process. The DSI
is to be neutral in that the same number of applicants will be entitled
to benefits at the end of the new DSI reforms as under the current
system. The means to assure that the number of new claims granted
remains the same must be the quality controls and the Disability Review
Board (DRB).
The precise mechanism for quality assurance of the DRB is the
``computer-based predictive model.'' We understand the Commissioner
will soon sign a contract to hire outside help to devise this model.
After initially evaluating 100% of all ALJ decisions, the computer-
based predictive model will tell the DRB which cases to more closely
evaluate. Even at the beginning, we understand that not all cases will
be evaluated equally closely.
We fear that the DRB will intrude on the traditional independence
of ALJs and undermine the benefits of a fair hearing. ALJs worry that
the benefits of a fair hearing will be overturned by a review board
that did not see the claimant or attend the hearing. Private
practitioners worry that the computer program, not the individual ALJ,
will become the de facto decision maker. The computer-based predictive
model probably will not be as blunt as the discredited Bellmon
review\1\, but will shape ALJ decisions.
---------------------------------------------------------------------------
\1\ ``[T]he agency [SSA] instituted the `Bellmon review,' a
surveillance program of judges thought to be granting too many
disability claims. The effect of the Bellmon review on judicial
independence was chilling.'' Christine M. Moore, SSA Disability
Adjudication in Crisis! 33 Judges' J. (No. 3) 2, 9 (1994). It should be
emphasized that this Social Security Administration process of ``own-
motion review'' of ALJ decisions resulted from stated Congressional
concern [expressed in the 1980 Social Security Disability Amendments,
Pub. L. No. 96-265, known as the ``Bellmon Amendment'' after Senator
Henry Bellmon (D-Okla.). See Association of Admin. Law Judges v.
Heckler, 594 F. Supp. 1132 (D.D.C. 1984) for an explanation of the
legislation] at the high rate of ALJ reversal of state-level denials of
claims and the variance of rates among ALJs. http://
review.law.mercer.edu/old/46201ft.htm
---------------------------------------------------------------------------
The computer-based predictive model must be a screening tool. It
must be merit-based, not budget-based. It cannot be utilized to deny
claims so that DSI is budget neutral. DSI may result in some increase
in costs. (If claimants are paid earlier, some of the denied would die
or not appeal their denial even though actually disabled. This
especially applies to those with mental impairments.)
The computer-based predictive model must also be transparent. ALJs
and attorneys of claimants alike are entitled to know which cases will
be more closely reviewed. Presumably the case of an elderly person with
lung cancer, whom an ALJ finds disabled, need not be reviewed as
thoroughly as a younger individual with a bad back. However, the
independent decision of the ALJ as to each must stand. Quality
assurance is an admirable goal, but not at the cost of ALJ
independence.
Some of our members are concerned that the predictions of a
computer model will replace the judicious weighing of evidence. Others
worry that this computer review will be utilized to discipline ALJs
whose decisions are too different from the norm. The computer-based
predictive model must not be utilized to assure that the same number of
people will be entitled to benefits at the end of the new DSI reforms
as under the current system. This would be a gross misuse of a quality
assurance program.
Finally, at the Subcommittee's hearing on the SSA's proposed
regulations last September, the Honorable Judge Howard D. McKibben,
chairman of the Judicial Conference Committee on Federal-State
Jurisdiction, testified about the potential increase in the number of
complaints filed in federal court due to the abolishment of the Appeals
Council. It is not assured that the DRB will eliminate unfortunate ALJ
errors. The Commissioner has not really addressed Judge McKibben's
comments.
CONCLUSION
Thank you once again for the opportunity to appear before you
today. The Social Security Section of the Federal Bar Association looks
forward to continuing to work with you and the Social Security
Administration in improving the disability hearing process. I would be
happy to answer any questions you may have.
Chairman MCCRERY. Thank you all for your testimony.
You've all brought to light some concerns that you have
about the proposal by the Commissioner.
Mr. Robertson, I think the process of analyzing and
examining how this rollout is working, first in the Boston
Region and then later in other regions, takes on even more
importance than it otherwise might because of the dramatic
changes in the process that are proposed, and in the concerns
that have been raised by folks who are intimately involved in
the current process.
With that in mind, what is your assessment, from the GAO's
standpoint, of the Commissioner's dynamic management model that
she mentioned when I asked her about the protocol for reviewing
and analyzing the progress in Region I, in the Boston Region?
She said, we're going to use dynamic management, which
basically I understood her to say is kind of analyzing as we
go, and tweaking as we go.
What is your assessment of the efficacy of that model?
Mr. ROBERTSON. A couple quick comments on that.
Number one, we don't really have a lot of the details of
just how the SSA is going to go about doing its evaluation.
You know, they have a notion of, okay, we need to do this,
this, and this, but they're pretty vague on the measures they
use and the timeline, that type of thing.
So, that's one point.
The other point would be just to say, ``Well, here's what I
think should be happening in terms of an evaluation,'' and I
think--and perhaps I'm oversimplifying things, but sometimes
that's a good thing--I think they've got to do at least three
things.
They've got to look at the individual components of the new
system and determine whether or not they're working the way
they were supposed to work.
In other words, are the Quick Disability Determination
(QDD) actually producing decisions quickly at the front end? If
you're looking at the back end, again, you'd be looking at,
well, what's happening and how effectively is the DRB doing its
thing?
So, that would be one kind of a micro look at the
individual components of the new system. That's got to be done,
and that's got to be done continuously so they can tweak the
system as the rollout occurs.
The more macro level evaluation, and this is so very, very
important, is to remember there was a purpose, there were broad
objectives for this system right from the get-go, and they were
to improve the timeliness of the decisionmaking process and
improve the consistency and make sure the decisions were fair.
Somehow, at some point in time, SSA needs to flesh out just
exactly how they're going to do that, and I say that now
because if they don't do that, a year or two from now you hold
hearings and you ask me or you ask the commissioner, ``Well,
how are things going with the new rollout?''
You know, we wouldn't, if we didn't have a good evaluation
system in place, we wouldn't be able to say, or we'd be saying,
``Well, some things look good but we really didn't have the
right measures, or we didn't measure the right things,'' that
type of thing.
So, the second part of it is making sure that we're
accomplishing the overall objectives or evaluating the overall
objectives of the DSI.
Last but certainly not least is, we need to have an idea of
how much all this costs.
So, basically, it boils down really to two things: is the
DSI working as intended, both on the macro and micro level; and
how much is it costing us?
Chairman MCCRERY. It seems to me that the first two things
should be fairly easy to measure, particularly in comparison to
where we are now and the system that exists now.
The third component of your micro list, though, are the
decisions fair, I don't know who is going to decide that. I
don't know that you can----
Mr. ROBERTSON. I don't know how that's going to transpire.
Chairman MCCRERY. --measure that, but the first two I think
are imminently measurable and can be done.
The question of cost, almost everybody here has raised the
issue of are there sufficient resources available to allow this
reform to work. Have you made any assessment of that, given the
resources that are available?
Mr. ROBERTSON. At this point in our review,we haven't
looked at the costs. You know, we have the figures that SSA had
in the final rule, but that's the extent of it.
Chairman MCCRERY. Okay. Before I turn it over to Mr. Levin,
I thought each of you were very clear in your testimony. I
don't have a lot of questions. A lot of these questions that
the staff prepared were answered, I thought, pretty well.
I want us to keep in mind, though, that the reason we're
all here and the reason the Commissioner has been doing this is
because the current system really hasn't worked very well, and
the current system is not very fair, just in terms of the
process to claimants, because they have to wait so dadgum long
to get a decision, any decision.
That's what we're all trying to get at, and the
Commissioner has done her best at coming up with a new process
that she hopes will give claimants a better shake.
We don't know if it's going to work, and that's why we want
to hear from you all, so that we can get as much input going in
to anticipate problems.
Then we also want to get in place a rigorous assessment
protocol so we can tell as we're going along whether things are
working.
Then last, we want to try to make sure--this is probably
the most difficult part--that sufficient resources are made
available to allow the process that she's come up with to work
as she's designed it, and that, unfortunately, to some extent,
we have to leave up to the appropriators.
Mr. Levin and I both have been very adamant in our requests
to the appropriators for more funding, and unfortunately, they
didn't give us what we asked for, but we'll continue to beat on
them and see if we can help get some more resources.
I appreciate very much the input that you all have provided
not only today but prior to today as the Commissioner is
developing a process and making changes to it.
So, thank you very much.
Mr. Levin.
Mr. LEVIN. Maybe I'll pick up on that statement, because
the staff, with its usual efficiency, has outlined all kinds of
questions, and maybe what we should do is to present them to
you in writing so that each of you can give us your inputs, how
the system works at every step.
I guess I just want to say that in the end, the test is not
only the quality, but how we address the backlog.
In Mr. Hill's testimony, and the commissioner went as far
as I think she could under the constraints, 727,000 cases
pending? Isn't one of the tests of any system going to be its
reduction? I would think so.
The average processing time of 480 days--I'm not quite sure
what that all means, from beginning to end. That's a lot of
cases that have a long time to be processed now.
I think that's outrageous.
The Chairman has very much joined in, and I think has
really led the way to try to bring attention to this.
So, we'll ask you a lot of detailed questions, and if
you'll answer them, but I do think we need to signal that the
test of the new system will be whether it addresses this and if
not, why not; and I do think that part of the answer is going
to be resources.
I don't see how any system, no matter how well designed,
works without resources.
Maybe we use this analogy too often, because I come from
Michigan, but, it doesn't really matter how well a car runs if
there's no gasoline, whatever the resource, whatever the source
of the gasoline--I should use ``of the fuel,'' I shouldn't say
gasoline, fuel.
So, I think we should put ourselves on notice that if there
isn't a substantial reduction of this, and so I'll just ask any
of you pointblank, are any of you confident that this new
system will mean in a couple of years a dramatic reduction in
the number of pending cases?
I guess since it's starting in one region, the answer is
there can't be right in a short period of time, right?
How about 3 years from now? What's the plan? How quickly is
this supposed to be spread to other places? Do we know that?
Mr. SKWIERCZYNSKI. Well, I don't think the commissioner has
laid out exactly the rollout strategy.
We in the American Federal government Employees (AFGE)
union think that she put the cart before the horse. There are
different options that one could use to improve the disability
process. She's decided on an option, issued regulations, and
now it's done, and they haven't even tested it.
That's a dangerous step to take, to without any testing or
piloting, to issue regulations and say, ``Here's the process.''
Now, during the redesign experiment, people, the consumers
of this disability program, disabled people said they want a
caseworker approach. Why isn't this being piloted? Why didn't
the commissioner look at a caseworker approach, where the
person you deal with makes the decision? Makes it more user
friendly, not adds but removes some of the litigation.
When you have a litigious process, it's going to take time,
it's going to take a lot more time writing a lengthy decision
that another appellate--at another appellate level has to be
rebutted, and then both of those decisions go to another
appellate level and you create a conflict. That's going to take
a lot of time, right through that process.
So, I don't see this at all cutting down backlogs.
One thing that was done, you certainly, if you strip the
last appellate level, you're going to shorten the end point.
You know, you're going to get to court quicker, because you've
sliced an appeal.
As I testified, that particular appeal, the Appeals Council
had a 30 percent remand and reversal rate, so there's a lot of
people who their cases will probably be decided in error
because they couldn't avail themselves of that appeal.
I don't know that that's where we want to go, to shorten
the process and ensure that a certain segment of the claims are
going to be decided erroneously. I don't see where that gets to
where we want to go.
Mr. HILL. The implementation schedule is lengthy. I think
today the commissioner mentioned something about 5 years.
Mr. LEVIN. Right.
Mr. HILL. I think that the schedule, as I----
Mr. LEVIN. With adequate resources, she said.
Mr. HILL. As I understand it, there will be--Region I
starts, it will be a year. If everything goes well, then it
will be rolled out in Region 8, then Region 10, then Region 7.
Those are our four smallest regions. I don't know the timeframe
for the rest.
I think when you have rolled out those four regions, you
will probably have less than 20 percent of the hearing office
workload in DSI hearing offices. The other 80 percent will
still be under the old system.
So, I suspect there's quite a lengthy period of time before
we are going to--we in Region 5--I'm from Ohio--I don't think
we'll see it for 4 years. We are the second biggest region.
We're probably going to be near the last.
Ms. FORD. I'd like to comment. From the perspective of
claimants, the Commissioner has gone after some very critical
issues here in terms of developing better evidence earlier in
the process, and moving some of the cases more quickly through
the system.
I think the new FedRO level is designed to help get at the
evidence issue. The FedRO will have subpoena power. Now,
claimants and their representatives don't have any control over
whether they can get that evidence and how quickly they can get
it.
So, I think she is going after some of the key pieces, and
in good faith, is looking at trying to improve the system up
front.
I think it's absolutely critical that--and I hope my
testimony made this clear--it's absolutely critical that all
the players be involved from this point on in terms of
observing what is happening, provide feedback to the SSA and to
the Subcommittee, and maintain that continual loop of
information so that where there are problems they can be
addressed quickly.
I wouldn't want to see a problem go down the road very far
and have a lot of people affected by it if there were a way
that we could catch it early.
So, I see it as a dynamic process that we all participate
in, and that we have a responsibility to participate in.
Thank you.
Mr. LEVIN. Yes, sir? Is it all right if we keep going?
Chairman MCCRERY. Sure.
Mr. LEVIN. Yes, sir.
Mr. BERNOSKI. Yes. I was just going to add that the--I
think the backlogs will be here, these large number of cases,
for some time in the future, but also, these backlogs to a
large extent are created by other factors that are outside the
control of the SSA, such as the economic condition.
We know when the economic conditions have a downturn, it
seems that we have more filings, so we have more cases that we
have to handle--the demographics of the population.
So, there are these other factors that affect the number of
cases that come into the system, and it's not that the people
aren't working hard like the commissioner indicated.
The ALJ and the assistant and the people, and not only the
judges, but the other people in the Office of Hearings and
Appeals, last year, we disposed of about 600,000 cases.
That's a lot of cases when you consider you're taking these
one at a time. That's kind of the albatross in this system. We
have 725,000 cases. We hear them one at a time. We don't
package them. That's a big job.
There's other factors that impinge upon it that no one
really has any control over.
Mr. LEVIN. Well, when you say no control, I think it would
mean if there are more cases, you need more resources to handle
the cases, so it isn't quite that we have no control over it.
It means we're not controlling.
Mr. BERNOSKI. Precisely. We don't have any control over the
cases that are coming into the system.
Mr. LEVIN. So, whatever the differences might be about this
experiment, it would seem essential that there be adequate
resources for both an introduction of a new system and for the
utility, the implementation of the old system. and as you say,
Ms. Ford, adequate participation by everybody in implementing a
new system.
So, I think we better leave here today, I think all of you
believe that there has to be adequate resources to make a
system work.
This is not an acceptable backlog, is it? Should we ask you
to study this?
Mr. ROBERTSON. We'd be happy to.
Mr. LEVIN. Okay. Well, we'll chat about this afterward.
Thank you very, very much, and thank you for this time. I
think it's been a very useful hearing, and we leave, I think,
with the sobering sense that we've got a responsibility to make
sure that this agency has the resources that it needs.
Thank you, Mr. Chairman.
Chairman MCCRERY. Thank you, Mr. Levin.
Thank all of you very much once again for appearing today
and sharing with us your testimony.
I'm sure we will be calling on some of you in the future as
we go through this process of getting the new system in place,
and we'll urge you to share with us at that time your
impression of how it's going. Thank you very much.
This hearing is adjourned.
[Whereupon, at 1:00 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow]
Statement of Linda Fullerton, Social Security Disability Coalition,
Rochester, New York
Members of the Committee:
My name is Linda Fullerton, I am permanently disabled and receive
Social Security Disability Insurance/SSDI and Medicare. I am also
President/Co-Founder of the Social Security Disability Coalition, which
is made up of thousands of Social Security Disability claimants and
recipients from all over the nation. 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. I must
take this opportunity to tell you how very proud I am of all our
members, many like myself, whose own lives have been devastated by a
system that was set up to help them. In spite of that, they are using
what very little time and energy they can muster due to their own
disabilities, to try and help other disabled Americans survive the
nightmare of applying for Social Security Disability benefits. There is
no better example of the American spirit than these extraordinary
people! If you visit the Social Security Disability Coalition website,
or the Social Security Disability Reform petition website:
Social Security Disability Coalition-offering FREE knowledge and
support with a focus on SSD reform:
http://group.msn.com/SocialSecurityDisabilityColition
Sign the Social Security Disability Reform Petition-read the horror
stories from all over the nation:
http://www.petitiononline.com/SSDC/petition.html
You will read over three years worth of documented horror stories
and see thousands of signatures of disabled Americans whose lives have
been harmed by the Social Security Disability program. You cannot leave
without seeing the excruciating pain and suffering that these people
have been put through just because they happened to become disabled,
and went to their government to file a claim for disability insurance
that they worked so very hard to pay for. I continually throughout the
Commissioner's Disability New Approach Program sent her hundreds of
their stories/comments from our website and petition and yet nowhere in
her DSI plan do I see any real help/relief for them.
My organization fills a void that is greatly lacking in the SSA
claims process. While we never represent claimants in their individual
cases, and in most cases due the nature of our group, we don't even
know their real names for privacy concerns, we are still able to
provide claimants with much needed support and resources to guide them
through the nebulous maze that is put in front of them when applying
for SSDI/SSI benefits. In spite of the fact that the current system is
not conducive to case worker, client interaction other than the initial
claims intake, we continue to encourage claimants to communicate as
much as possible with the SSA in order to speed up the claims process,
making it easier on both the SSA caseworkers and the claimants
themselves. As a result we are seeing claimants getting their cases
approved on their own without the need for paid attorneys, and when
additional assistance is needed we connect them with FREE resources to
represent them should their cases advance to the hearing phase. We also
provide them with information on how to access available assistance to
help them cope with every aspect of their lives that may be affected by
the enormous wait time that it currently takes to process an SSDI/SSI
claim, including where to get Medicaid and other State/Federal
programs, also free/low cost healthcare, medicine, food, housing,
financial assistance and too many other things to mention here. We
educate them in the policies and regulations which govern the SSDI/SSI
process and connect them to the answers for the many questions they
have about how to access their disability benefits in a timely manner,
relying heavily on the SSA website to provide this help. If we as
disabled Americans, who are not able to work because we are so sick
ourselves, can come together, using absolutely no money and with very
little time or effort can accomplish these things, how is it that the
SSA which is funded by our taxpayer dollars fails so miserably at this
task?
The Social Security Disability New Approach Program at its
inception, was a welcome change from what we have seen in decades past.
Everyone that I have dealt with on the Commissioner's staff was very
courteous and responsive to our concerns at the time and I am very
grateful for that. We kept in constant communication with them as much
as we were allowed to participate. I have also been privileged to
interact with other employees of the SSA who have been of great help to
my organization as well, in particular members of AFGE/National Council
Of SSA Field Operations Locals American Federation Of Government
Employees. In spite of my own personal nightmare SSDI claims experience
which I will be describing, and the horror stories I hear on a daily
basis, I am well aware that there are very hard working, committed,
caring people who work for this program. One of our goals is to
increase the lines of communication between the SSA and the disabled
community.
That being said, DSI does not go far enough, fast enough for those
who desperately need to access disability benefits and whose very lives
depend on them. It greatly disappoints me that the Commissioner has not
addressed most of the problems that my organization, and hundreds of
others had alerted her office about as part of the SS Disability New
Approach Program, in fact our cries for help have been virtually
ignored when making her recent regulation changes. I find it to be a
shame and disservice to the American taxpayers. It seems that the
regulations that have now been put in place will not do very much if
anything to relieve this horrendous situation, and for the most part
will be very detrimental to the disability claims process, rather than
improve it. As mentioned, I have been in direct communications with
AFGE/National Council Of SSA Field Operations Locals American
Federation Of Government Employees, AFL-CIO who represents thousands of
Social Security Workers for the past few years now and we have been
trying together to clean up the problems that would make the disability
claims process better for both sides--the disability claimants and the
SSA workers themselves. It is amazing, and very refreshing to learn
about how much we agree, on the changes needed to make the SSDI/SSI
process easier. They have been extremely helpful to my group which has
allowed me to better help those struggling to get these crucial
benefits. If we can do these things together I see no reason why the
SSA Commissioner (if she was doing her job properly) would not want us
actively involved every step of the way in these changes that she is
making. While I know the SSA is 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. So I call on
you today to start taking this crisis seriously as many lives literally
depend on your actions.
As a person who has gone through the Social Security Disability
claims process myself, I know first hand about the pain, financial,
physical and emotional devastation that the current problematic SSDI
process can cause, and I will never be able to recover from it, since I
can no longer work. I find it disturbing that at this latest hearing
and at past hearings, that glaringly absent from your panel was
representation from other disability organizations such as mine. You
continually choose the same panelists from the disability community
when there is any representation at all. I ask again as I have in the
past, that in future Congressional hearings on these matters, that I be
allowed to actively participate instead of being forced to always
submit testimony in writing, after the main hearing takes place. I am
more than willing to testify in person before Congress and I should be
permitted to do so. I want a major role in the Social Security
Disability reformation process, since any changes that occur have a
direct major impact on my life and our members lives and well being.
Who better to give feedback at these hearings than those who are
directly affected by its flaws! A more concerted effort needs to be
utilized when scheduling future hearings, factoring in enough time to
allow panelists that better represent a wider cross section of the
American population, to testify in person. It seems to me that if this
is not done, that you are not getting a total reflection of the
population affected, and are making decisions on inaccurate information
which can be very detrimental to those whom you have been elected to
serve.
From GAO testimony to your committee on 6/15/06: ``Finally, SSA's
communication efforts with stakeholders align with change management
principles in several respects. For example, SSA has employed a
proactive, collaborative approach to engaging the stakeholder community
both during DSI's design and in its planning for implementation in
order to explain why change is necessary, workable, and beneficial.
Even before the notice of proposed rule making on DSI was published,
SSA began to meet with stakeholder groups to develop the proposal that
would eventually shape the new structure. Then, once the proposed rule
was issued, SSA officials told us they formed a team to read and
analyze the hundreds of comment letters that stakeholders submitted. In
addition, they conducted a number of meetings with external
stakeholders to help the agency identify common areas of concern and
develop an approach to resolving the issues stakeholders raised before
rollout began. According to SSA officials responsible for these
meetings, the Commissioner attended more than 100 meetings to hear
stakeholder concerns directly. Further, SSA recently scheduled a
meeting for early July with claimant representatives to discuss that
group's particular concerns about how the new process will affect their
work and their disability clients. SSA officials told us that senior-
level staff will lead the meeting and that about 100 claimant
representatives from the Boston region will attend.''
``While SSA's steps and plans look promising, we want to stress the
importance of diligence and follow-through in two key areas. The first
is quality assurance, which entails both effective monitoring and
evaluation. A solid monitoring plan is key to helping SSA quickly
identify and correct problems that surface in the Boston rollout,
because any failure to correct problems could put the entire process at
risk. An evaluation plan is critical for ensuring that processes are
working as intended and that SSA is achieving its overarching goals of
making accurate, consistent decisions as early in the process as
possible. The second key area is communication. It is important for
SSA's top leadership to support open lines of communication throughout
implementation if the agency is to facilitate a successful transition.
Failure to, for example, provide useful feedback to staff--many of whom
will be new to the agency or at least to the new tools--could
significantly jeopardize opportunities for improvement. Just as
important, SSA's top management needs to ensure that the concerns and
questions of stakeholders affected by the new process are heard, and
that concerned parties are kept apprised of how SSA intends to
respond.''
It does not seem to me that SSA is off to a very good start in that
area. I continually asked to be part of such meetings if and when they
were ever held, but was never informed of any them, thus was not
allowed to participate. Since my organization primarily consists of
SSDI/SSI claimants, I have to question what sorts of ``stakeholders''
the Commissioner met with. Seems like her main concern is to meet with
``stakeholders'' who stand to make the most money from a claimant's
problems with the SSDI/SSI program rather than the claimant's
themselves who are most affected by those problems. This is further
evidenced by the list of ``stakeholders'' referenced in the
aforementioned GAO testimony. Again proof of the Federal Government
catering to special interest groups. While many of these ``claimant
representatives'' may have good intentions, unless they personally
experience what it is actually like to live through the process of
applying for these benefits, and have their lives permanently altered
as a result of it, they can never accurately convey to anyone what the
problems with dealing with a severely broken system is like for us. If
this system is ever to be reformed properly, it is crucial that before
any changes to this program are implemented, that the majority of
input/involvement in any phase of change be with a team of actual SSDI/
SSI claimants and the SSA workers themselves who must implement any
proposed changes.
The Commissioner in the past has stated ``In drafting this final
rule, we understood that, although there was broad agreement on the
need for change, numerous commenters perceived our proposed rule as
favoring administrative efficiency over fairness.''
It is very detrimental to the American people, if the Commissioner
is using their hard earned money to harm them for the sake of
efficiency rather than make it a priority to take every step necessary
to see that their cases are processed fairly as well as quickly. We
fear rubberstamping of denials for the sake of efficiency, which is in
fact ignoring the will of the people.
It is my understanding that Congressman Levin suggested during the
hearing that the General Accounting Office (GAO) should conduct a study
and cost analysis of DSI. After my own personal experience with filing
a claim for SSDI benefits dealing with enormous processing time and the
totally unnecessary problems I encountered, I also agree that their
should be major oversight by an independent body of all phases of the
disability claims process. I agree with the Congressman that the GAO
would do well to be involved in investigating further how the
Commissioner's proposals would not only affect the SSA, but more
importantly how her proposals would affect the claimant's themselves,
which after all our input, she continues to ignore.
We ask that the GAO review processing times of all phases of the
disability claims process with particular focus on the DDS offices and
the ALJ's where the largest bottlenecks and inconsistencies in the
program are found. In addition we want the GAO to consider recommending
to Congress that they move to legislate that the Federal Government
take over the role that the DDS offices now perform. We have seen a
wide range of denial/approval rates and processing times for the same
classifications of disabilities based entirely on the state in which a
claimant lives, or which DDS worker (their training is very
inconsistent by state) happens to handle their claim. This should not
be allowed and in fact most people including elected officials are not
aware that DDS workers are state, rather than Federal employees. It is
widely known that the following Federal Standards are not being met by
the DDS offices as the program is currently structured:
404.1642 Processing time standards http://www.ssa.gov/OP_Home/
cfr20/404/404-1642.htm
(a) General. Title II processing time refers to the average number
of days, including Saturdays, Sundays, and holidays, it takes a State
agency to process an initial disability claim from the day the case
folder is received in the State agency until the day it is released to
us by the State agency. Title XVI processing time refers to the average
number of days, including Saturdays, Sundays, and holidays, from the
day of receipt of the initial disability claim in the State agency
until systems input of a presumptive disability decision or the day the
case folder is released to us by the State agency, whichever is
earlier.
(b) Target levels. The processing time target levels are:
(1) 37 days for title II initial claims.
(2) 43 days for title XVI initial claims.
(c) Threshold levels. The processing time threshold levels are:
(1) 49.5 days for title II initial claims.
(2) 57.9 days for title XVI initial claims. [46 FR 29204, May 29,
1981, as amended at 56 FR 11020, Mar. 14, 1991]
404.1643 Performance accuracy standard http://www.ssa.gov/OP_Home/
cfr20/404/404-1643.htm
(a) General. Performance accuracy refers to the percentage of cases
that do not have to be returned to State agencies for further
development or correction of decisions based on evidence in the files
and as such represents the reliability of State agency adjudication.
The definition of performance accuracy includes the measurement of
factors that have a potential for affecting a decision, as well as the
correctness of the decision. For example, if a particular item of
medical evidence should have been in the file but was not included,
even though its inclusion does not change the result in the case, that
is a performance error. Performance accuracy, therefore, is a higher
standard than decisional accuracy. As a result, the percentage of
correct decisions is significantly higher than what is reflected in the
error rate established by SSA's quality assurance system.
(b) Target level. The State agency initial performance accuracy
target level for combined title II and title XVI cases is 97 percent
with a corresponding decision accuracy rate of 99 percent.
(c) Intermediate Goals. These goals will be established annually by
SSA's regional commissioner after negotiation with the State and should
be used as stepping stones to progress towards our targeted level of
performance.
(d) Threshold levels. The State agency initial performance accuracy
threshold level for combined title II and title XVI cases is 90.6
percent.
The following GAO reports over the past several years prove that
there are major problems with this program:
GAO-04-656--More Effort Needed To Assess Consistency of Disability
Decisions--July 2004
GAO-03-117--Social Security Administration: Major Management
Challenges and Program Risks--January 2003
GAO-03-119--High Risk Series: An Update--January 2003
GAO-02-826T--Social Security Disability: Significant Problems
Persist and Difficult Decisions Lie Ahead
GAO-02-322--Disappointing Results From SSA's Efforts to Improve the
Disability Claims Process Warrant Immediate Attention
GAO/HEHS-97-28--APPEALED DISABILITY CLAIMS: Despite SSA's Efforts
It Will Not Reach Backlog Reduction Goal
GAO/HRD-94-11--Increasing Number of Disability Claims and
Deteriorating Service
GAO/HEHS-94-34--Disability Rolls Keep Growing While Explanations
Remain Elusive
Productivity/Poor Customer Service
The Commissioner has stated: ``SSA is a good and worthy investment.
Our achievements over the last year are proof that resources provided
to SSA are used efficiently and effectively to administer America's
social security programs.''
It is very true that SSA is a good and worthy investment when it
works properly to provide vital disability benefits to claimants in a
timely manner, but from the Federal regulations that are violated on a
daily basis and the GAO reports to date, this is not the case at all.
This statement shows that the Commissioner is totally out of touch with
what is happening on her watch. I would be more that willing to
speculate that any other corporation in this country who ran their
business this poorly, would be out of business in it's first year! By
client standards SSA customer service is extremely poor and in major
need of improvement across the board. Here is just a small sampling of
the constant complaints we receive about the Social Security Disability
system and its employees:
Severe understaffing of SSD workers at all levels of the program
Extraordinary wait times between the different phases of the disability
claims process
Employees being rude/insensitive to claimants
Employees outright refusing to provide information to claimants 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 having 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
Complaints of backlogs at payment processing center for initial
payments once claim is approved
Federal Quality Review process adding more wait time to claims
processing, increasing backlogs, no ability to follow up in
this phase
Poor/little coordination if information between the different
departments and phases of disability process
Note: These complaints refer to all phases of the SSD process including
local office, Disability Determinations, Office of Hearing and
Appeals, Payment Processing Center and the Social Security main
office in MD (800 number)
All these concerns were submitted in writing by myself, to the
Commissioner's staff as part of the New Approach program, and in
previous testimonies to this committee, yet very few of them have even
been addressed as part of the DSI. While there is no acceptable excuse
for why these incidents are occurring, it is of no surprise to me that
they are, based on the current conditions under which the SSA
functions. I must take this time to remind you that we are not just
nine digit SS numbers or case files, and I am sure as a result of very
stressful working conditions, that it is very easy at times for SSA
workers to forget that fact. We are living, breathing, and due to our
illnesses--very fragile human beings, whose survival in most cases,
totally depends on these benefits. Often we are treated like criminals
on trial, or malingerers looking for a handout. Social Security
Disability (SSDI) is a Federal disability INSURANCE plan--not welfare--
where money is taken out of your paycheck every week, yet you could
face homelessness, bankruptcy and even death trying to get your
benefits when you need them most. Unfortunately, you may find yourself
in a situation where you suddenly need to access this fund, then find
it's the most mismanaged, problematic Federal program there is. The
stories of abusive and rude behavior towards SSD/SSI claimants continue
to increase. There does not seem to be much oversight in this area,
which is totally unacceptable. The GAO and the SSA needs to monitor
this problem more closely. A greater effort must be made to treat all
claimants with the utmost respect and dignity and when necessary SSA
must remove offending employees immediately. I ask that Congress/GAO
create an independent oversight team to make sure these problems are
corrected as soon as possible.
The SSA and GAO need to involve people such as myself who are
directly affected by any changes to the SSDI/SSI program in any
studies, surveys or committees to determine what changes would be in
the best interest of the disability community. 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. From my own personal
experience, and those of so many others that I have come in contact
with, the best approach is one that has the least amount of paperwork,
the quickest processing times, the most communication with SS workers,
and no need to have attorneys or the courts involved in the processing
of claims. This program should be as simple as a claim for any other
kind of insurance such as unemployment, auto etc. because insurance is
actually what these benefits are! There is no need for it to be this
burdensome, bureaucratic nightmare that it has turned into. To achieve
this goal we suggest that you also establish an independent commission,
again including disability program clients, to provide an ongoing
monitoring/assessment of customer service, cost, time savings, and
functions of the Social Security Disability program.
At this point I feel that one of the best ways to illustrate the
problems with the SSDI claims process is to relate my own experience
with the program. For the last 30 years of my life I contributed to the
Social Security System as millions of Americans do every day. I never
expected to use those funds till I was old enough to retire, yet I was
personally devastated by the SSA, losing everything I worked for
because I became ill. In December of 2001, I applied for Social
Security Disability benefits which I assumed would be there to help me
in my time of need. I'd heard nothing but discouraging stories, but
figured every case was different, and anyone with the list of illnesses
that I had, and the documentation to prove it, would surely get the
help they needed, yet I was sorely mistaken. After filling out several
pages of paperwork, which I was told was greatly reduced from which it
had originally been, and submitting a huge stack of medical records
supporting my claim, I was told it would take 4-6 months to go through
the disability claims process. I was shocked and asked what I was
supposed to live on, and I was told to apply for Social Services
(Medicaid, food stamps and cash assistance) while my claim was being
reviewed. I did just that, and was denied any sort of help based on the
cash value of a life insurance policy that is not even enough to bury
me when I die. Due to all my illnesses if I cashed in that policy, I
would never be able to get that form of insurance again! Going through
that process and paperwork was very difficult and humiliating as well,
and then to be denied any help, just added even more to my stress and
misery.
I was hoping beyond hope that I would soon get word that my
disability claim was approved, but instead on 4/25/02, I got the
incredible letter that my Social Security Disability claim had been
denied! I found out that it's common knowledge on the streets and in
legal circles that very few get approved the first time they apply.
Something is extremely wrong when you have to deal with the pain and
suffering physically and mentally that comes along with the illnesses
you have, and then have to struggle so hard to get the benefits that
you have worked for all your life.
I still couldn't understand how it was possible that anyone could
read about all the medical problems I have, and it not be totally
transparent that I should qualify for benefits, and that I never
should've been denied in the first place! I immediately filed for an
appeal, had to go through an even more complicated process and was told
it would be at least August of 2003 before I got my hearing if I didn't
die first! On 9/13/02, when I called the Office of Hearings and Appeals
in Buffalo NY to check on my claim the receptionist told me, that my
file was still in the un-worked status, which meant that nobody was
assigned to my claim yet, or even looked at the file at all since
March, when I originally filed my appeal. I expressed my disgust that
after six months in their possession that it had not even been touched
yet! I called them again on 1/23/03 and they told me that STILL nobody
had been assigned to my case and it would be a MINIMUM of five months
more or longer since they were just starting to work on cases that were
filed in November of 2001! The receptionist expressed her sympathy for
my cause and literally begged me to let others know (especially the
government and media) about how much of a problem they are having.
Imagine my surprise when I was calling them for help and they were
begging me--a disabled person, to get them help! That just proves even
further how poorly run the SSD program is. I was told that there were
only 50 employees handling hundreds of thousands of cases and they,
along with all of us claimants critically need help now!
Congressional offices in many cases contact Social Security on
behalf their constituents going through the SSD process, so they must
be aware of the many problems that exist with the program. I wrote to
ALL my elected officials and as a registered voter myself, was very
disappointed, disillusioned, and disgusted that my elected officials
whom I have supported in the polls every year, when I asked for help in
my own particular case, that the very few who responded at all, said
that I needed to be become homeless or have my utilities shut off
before they could help me, and there was nothing else they could do to
expedite my claim. It was totally appalling and unacceptable to me,
that never once, did they say that they would do anything to try and
correct the flaws in the system that cause the horrors we SSDI/SSI
applicants face. The bi-partisan apathy in regards to this issue is not
only unacceptable, but criminally negligent behavior, and Congress
needs to be held responsible for it, create the legislation and get the
funding needed to address this crisis. We elected them, trusting that
they would protect, serve, and be there for us in our time of need.
Time is of the utmost importance in this matter, as millions of SS
Disability applicants, even as I write this are suffering and losing
everything, including their lives, while trying to get their benefits.
In March 2003 I called the hearings and appeals office again and
they said it would be at least August 2003 before someone would look at
my case. I then did some research and found out that I could request
copies of the reports of the SSD IME doctor I was sent to, and the
notes of the original DDS claim examiner that denied me, and when I
received them, my worst allegations were then confirmed. Even though I
have no real neurological problems they sent me to a neurologist to
examine me, so of course he would find nothing wrong with me and say
that I did not qualify as disabled. I should have instead, been sent to
a Rheumatologist since most of my problems are caused by several
autoimmune disorders. I also discovered that the DDS examiner purposely
manipulated my medical information in order to deny my claim. Even
though I filed my disability claim based on all the physical problems I
have, the DDS examiner purposely wrote depression as a PRIMARY
diagnosis for disability, instead of as secondary one, so of course I
would be denied based on that as well. This was after I had already
submitted tons of documents to prove my PHYSICAL disability--reports/
documents that he chose to ignore. I then contacted the Social Security
Office of Public Inquiries and the Inspector General's office in MD and
filed a formal willful misconduct complaint to him against the Buffalo
DDS office. In April 2003, I requested an immediate pre-hearing review
of my case on the grounds of misconduct and additional physical
evidence. In order to get that process going I had to fax the OHA
copies of their own regulations since the person I spoke with there had
no clue what I was talking about. Once they got all my paperwork to
request the review, a senior staff attorney, and then a hearing and
appeals judge granted my request and my case was then sent back to the
DDS office that originally denied my claim. Finally it was seen by a
different DDS person who actually knew how to do their job. In two
weeks my case was approved at the DDS level and then was selected
randomly by computer (7 out of every 10 cases get chosen) for Federal
review. It then took another three weeks to be processed there.
By this time, I had wiped out my life savings and lived off my
pension from a previous employer which is totally gone now, due to the
enormous wait for my claim to be processed properly. One month before
becoming totally bankrupt, homeless, losing my health insurance, and
everything else I had worked for the last 30 years of my life, I
finally won my case by myself, with no lawyer representing me, exactly
1\1/2\ years to the day from when I originally filed my claim. Under
SSD regulations 5 months of my retro pay was withheld for no good
reason, money I surely could have used to help pay off debts incurred
while waiting for approval of my benefits. All the SSD retro pay I did
received is gone now too and the benefits I do get are nowhere near
enough to live on for the rest of my life. Plus there is always the
stress of having to deal with the SS Continuing Disability Review
Process every few years, where the threat of having your benefits
suddenly cut off constantly hangs over your head, even though all my
illnesses are incurable and are getting progressively worse. This is a
total waste of time and money on the part of the SSA to review people
with incurable, no hope for improvement conditions, such as mine.
Even after I was finally approved for benefits, since current
Medicare program regulations discriminate against disabled Americans by
making them wait for 24 months after their disability date of
entitlement, I didn't become eligible for Medicare until June 2004,
having to spend over half of my SSD check each month on health
insurance premiums and prescriptions, not including the additional co-
pays fees on top of it. Despite what you may hear, Social Security
Disability benefits rarely cover the basis necessities of life. The
American dream has become the American nightmare for me, since day to
day I don't know how I'm going to survive without some miracle like
winning the lottery. I'm now doomed to spend what's left of my days
here on earth, living in poverty, in addition to all my medical
concerns since I'm no longer able to work, and nobody in their right
mind would willing choose this horrible existence.
I continually deal with enormous stress and face the continued
looming threat of bankruptcy and homelessness, due to the cost of my
healthcare and basic living expenses, still not qualifying for any
public assistance programs. I personally hold accountable the SSA, the
DDS Office in Buffalo NY, Congress and State legislators for their
apathy in regards to the problems that this program has, for the
mental, physical, emotional and financial destruction that this
experience has cost me. I have vowed to do whatever it takes for the
rest of my life, to make sure that no other American citizen has to
endure the hell that I continue to live with everyday as a result of
having to file for SSDI/SSI benefits. I did not ask for this fate and
would trade places with a healthy person in a minute. Nobody ever
thinks it can happen to them. I am proof that it can, and remember that
disease and tragedy do not discriminate on the basis of age, race or
sex.
America needs to wake up and take action--anyone including you,
could be one step away from walking in my shoes at any moment! While
the majority of Americans were shocked at the reaction of the Federal
government in the aftermath of hurricane Katrina, I wasn't surprised at
all. Americans saw when hurricane Katrina struck, how the poor and
disabled were left to die in the streets when they needed help the
most. I shudder to think of how many more lives will be further ruined
or lost, when the mentally and physically disabled victims of Katrina,
other natural disasters, 9/11 victims who survived that day, but are
now disabled and facing a similar fate, and the other disabled
Americans in general, encounter their next experience with the Federal
government as they apply for their SSDI/SSI benefits. Also nothing is
heard about the Veterans who are injured in the line of duty and have
to go through this same scenario to get their benefits too. There are
cases of Veterans rated 100% disabled by the VA who get denied their
Social Security Disability benefits and end up living in poverty on the
streets. Horrible treatment for those who protect and serve our
country. Keep in mind a country is only as strong as the citizens that
live there, yet as you can now see, the Social Security Disability
process preys on the weak, and decimates the disabled population even
further. The process that an applicant endures when filing for SS
disability benefits, causes irreparable harm and has many serious side
effects including financial and physical devastation, unbearable stress
and anxiety, 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. It is a known medical fact that
stress of any kind can be detrimental to a person's health, and to
subject a population whose health is already in jeopardy to the sorts
of stress that this process can cause, further erodes a claimant's
health and is Federally sanctioned torture. Based on my own personal
experience, and from the horror stories I hear on a daily basis I can't
help but feel that the Social Security Disability program is purposely
structured to be very complicated, confusing, and with as many
obstacles as possible, in order to discourage and suck the life out of
claimants, hoping that they give up or die in the application process,
so that benefits do not have to be paid to them. A sad commentary to
say the least.
We the ``Claimants, Customers, Stakeholders'' are the people that
the people that the SSA and Congress is supposed to be serving and
listed below are some of our concerns and proposals for reform:
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, yet this is a standard practice
when deciding Social Security Disability determinations. These non-
disabling factors should be eliminated immediately as a factor in
determining benefits eligibility.
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. Also 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.
In her testimony before the Senate Finance Committee on 3/14/06 the
Commissioner referred to an Electronic Disability Guide (eDG) which she
states is accessible to the public. To date that has not been made
available to the public, all areas are flagged as restricted, and we
request that it be made accessible to the public as soon as possible.
We want to see institution of a lost records fine, wherein if
Social Security loses a claimants records/files an immediate $1000 fine
must be paid to the claimant.
Funding
The Commissioner has stated in the past: ``Since funding is the
fuel that drives our ability to meet the needs of the people who rely
on our services, I must tell you that there are very real consequences
when we have reduced resources. Under the current performance-based
budgets, there is a certain amount of work that can be done for a
certain amount of funding, and when our portfolio of traditional work
and the new workloads I have described expands without funding, our
effectiveness is jeopardized.''
We agree with the Commissioner that proper funding is crucial to
the success of SSA programs and there are severe, very real
consequences to claimants when SSA has reduced resources, yet it is my
understanding that she has imposed a hiring reduction. SSA has already
experienced staffing cuts in 2006, and based on the President's
proposed budget, is expected to experience even more staffing cuts in
2007. The SSA will now have only a 1 of 8 employee replacement ratio
for those leaving SSA and who work directly on the front lines in the
field offices. This is a claimant's primary interview contact in the
disability claims and appeals process, and this staffing cut is a great
cause of concern for us. Even now there is not enough staff to handle
the current workloads, and the influx of new disability claims is only
going to increase over time as the population ages, and we face very
turbulent times ahead. The idea that the Commissioner would use these
resources she has been given, to create new levels of claims
processing, that in reality will make the system tougher on claimants
to access benefits, instead of properly staff the program and make it
more claimant friendly is a travesty and waste of tax payer dollars. We
ask that Congress legislate to ensure that the Social Security trust
fund should never be touched for anything else but to pay benefits to
the people who are entitled to it, and that the SSA does not have to
compete for appropriation funds. We also call on Congress and the GAO
to step in, and prevent the Commissioner's very detrimental staffing
cut from taking place.
Communication Between SSA And Its Customers Is Crucial/DCM/QDD
Increased contact with claimants throughout WHOLE disability claims
process is crucial to the success of the program. Currently there is
virtually no communication with claimants after initial intake, written
denial, approval, review notices or if by chance the claimant is able
to get through to the 1-800 number to ask a question. A welcome step in
that direction is the Disability Claims Manager (DCM) pilot where the
claimant is able interact on a regular basis in SSA field offices with
the person who would be making the decision on their case. If trained
properly we believe that DCM staff could perform this role, and it is
my understanding that in the pilot these managers processed claims
faster and more accurately than the state DDS offices do now. We are
very pleased to see the Commissioner's creation of the Quick Disability
Determination Unit (QDD) process for the obviously disabled which is
long overdue, especially for those who suffer from terminal illness,
who currently in many cases, die before they get approved for benefits.
We must state that though, that it would better serve its clients if it
were part of the SSA field office as well. Also a claimant should be
allowed to review all records in their case file at any time, during
all phases of the SSDI/SSI process. Currently they are only allowed to
review their file after a denial in the initial phase is issued. 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 any hearing phase.
Consolidation/Coordination--The Disability Common Sense Approach
The most ideal customer service scenario would be to have ALL
phases of the disability claims process be handled directly out of the
SSA field offices. Since SSDI/SSI are Federal benefits why has a State
DDS level been added to this process at all? We must question why this
common sense solution is not being instituted as part of the DSI. We
ask that SSA, Congress and the GAO to look into reforming this program
in such a way that ALL who handle benefit claims are Federal employees
and consolidate ALL phases of the SSDI/SSI process into the individual
SSA field offices throughout the nation. More Federal funding is
necessary to continue to create a universal network between all outlets
that handle SSDI/SSI cases so that claimant's info is easily available
to caseworkers handling claims no matter what level/stage they are at
in the system. Since eDib is not fully functional at this time, and
even when it is, keeping as much of the disability process as possible
in the SSA field offices would dramatically cut down on transfer of
files and the number of missing file incidences, result in better
tracking of claims status, and allow for greater ease in submitting
ongoing updated medical evidence in order to prove a claim. In
addition, 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.
5-Month Withholding/Waiting Period For Benefits
Remove 5-month waiting period for SSDI/SSI benefits. Supposedly
this law was instituted because it was felt by Congress that the
majority of Americans have short and long term disability insurance
through their employers. In fact according to the Labor Department's
National Compensation Survey released in March 2006, only 40% of U.S.
employers offer short-term disability, and only 30% offer long-term
disability. We now live in a climate where employer sponsored benefits
are in fact decreasing, while as the population ages the need for them
is increasing. There is absolutely no good reason for withholding these
funds and it is basically robbery of 5 months of their hard earned
benefits! Also prime rate bank interest should be paid on all retro
payments from first date of filing, due to claimants, as they are
losing this as well while waiting for their benefits to be approved.
The amount of money withheld during this time could mean the very
difference between a more secure future or financial ruin for a
population who can no longer work and that will never be able to recoup
that loss of back benefits that they are subjected to. It could
determine whether or not a person will have to file for State
assistance in addition to their Federal benefits and then have to rely
on two support programs rather than just one for the rest of their
lives. Now more than ever it is time for Congress to remove this
additional hindrance to disabled Americans.
Medicare Sligibility/24-Month Waiting Period/Accelerated Benefits
Trail/Mental Health Treatment Study/AI Demonstratrations,
The Commissioner's proposed Accelerated Benefits trial ignored our
request to get Congress to legislate removal of 24-month waiting period
for ALL Social Security Disability recipients to get full Medicare
coverage. That needs to change and we ask this Committee to institute
the necessary legislation to remove it as soon as possible. Her
suggestion to only allow claimant's whose have medical conditions that
are expected to improve within 2-3 years is blatant discrimination
against the disabled citizens who need Medicare the most. This proves a
total lack of understanding on her part, of how crucial these benefits
are to someone who is disabled and can no longer work. Imposing this
waiting period, also forces many to have to file for Medicaid/Social
Service programs who otherwise may not have needed these services if
Medicare was provided immediately upon approval of disability benefits.
My organization agrees totally with the Medicare Rights Center, that
coverage under all parts of Medicare must start immediately for them,
upon disability date of eligibility. As part of the Mental Health
Treatment Study and HIV/AI Demonstrations, the Commissioner states that
SSA will provide comprehensive health care to DI beneficiaries who have
schizophrenia or affective disorders, HIV/AI disorders. Again this
should be extended to ALL SSDI claimants regardless of possible work
outcome!
Claims Processing Times/Dire Needs/Compensation For Losses Incurred
While Waiting For Benefits
We are calling for All SSD case decisions to be determined within
three months maximum 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 the SSA will
constitute a fine of $500 per week for every week over the six month
period--payable to claimants in addition to their awarded benefit
payments and due immediately along with their retro pay upon approval
of their claim. A dire needs case in the eyes of the SSA means that you
have to prove in writing, that you are going to have your home
foreclosed on, be evicted from your apartment or have your utilities
shut off. Nobody should ever have to deal with that sort of thing when
they are sick! Many claimants are also unable to afford health
insurance, medicine, food, other necessities of life, and have to wipe
out their financial resources because of their inability to work, but
even that is not considered a dire need! Worsening health doesn't seem
to be much of a factor in speeding up SSD claims either, as there are
several reported cases of people who have died while waiting to get
their benefits. This is outrageous when something this serious, and a
matter of life and death, could be handled in such a poor manner. No
other company or other government organization operates with such
horrible turn around times. As a result we are calling for Congress to
legislate that the SSA will be held financially responsible to
reimburse claimants for any loss of 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
claims, which may occur during or after (if there is failure to fully
process claim within six months) the initial six month allotted
processing period.
Treating Physicians
All doctors should be required by law, before they receive their
medical license, and it be 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.
Often claimants cannot get their doctors to fill out SSA forms due to
time constraints and staffing problems or they have no access to any
kind of medical care at all. SSA field offices should also, when a
person applies for disability benefits, provide at no charge to the
claimant, a listing of free/low cost healthcare resources that they may
need to utilize in order prove their disabilities. While the SSA in
such cases may order a claimant to go for an IME in these situations,
they cannot adequately determine a claimants disability in one visit
like a treating physician who see a claimant on a regular basis can.
Proper Weight of Treating Physician Reports/Evidence And IME/
Consultative
Too much weight at the initial time of filing, and throughout the
claims process is put on the independent medical examiner's and SS
caseworker's opinion of a claim. The independent medical examiner, SS
caseworker 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 priority given to the claimant's own
treating physicians opinions and medical records. When evidence is
lacking in that area, and SSD requires a medical exam, it 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. Also independent medical exams requested by SSA should 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 should provide for transportation or travel expenses incurred
for this travel by the claimant.
Easy/Free Acess For Patients To Copies Of Their Own Medical Records
All Americans should be entitled to easy access and FREE copies of
their own medical records, including doctor's notes (unless it could be
proven that it is detrimental to their health) 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. Often inaccuracies in these records are
never caught, allowing incorrect information to be passed on from
doctor to doctor over the years, and could even lead to serious
misjudgments in patient care based on bad information.
Removal Of Reconsideration Phase
NY State where I live, is one of the worst in the nation to file a
claim for SSDI/SSI benefits, compared to the rest of the nation,
especially since 9/11. NY is one of ten test states where the
reconsideration phase of the SS Disability claims process was
eliminated, causing extraordinary wait times, up to several years in
some cases, for claims to be processed At the Buffalo NY DDS office
where my own claim for benefits was processed, 48.6% of T2 initial
cases, 57.2% of initial cases and 67% of concurrent initial cases were
denied. Yet over half of those claims were then approved at the
Hearings and Appeals level in the time period between 6/25/05--9/00/05.
With initial claims denial rates this high and no opportunity for
reconsideration, it only stands to reason that claimants will request a
hearing thus forcing them into the court system. Currently in states
where the reconsideration phase has been removed there is even a need
to ship in ALJ's from other states to help manage the court backlog
problem. Yet the SSA Commissioner, has ignored this problem occurring
already in these 10 test states and has now passed regulations to
remove the reconsideration phase for the whole country, which will
continue to force thousands more into the already backlogged Federal
Court system. Why waste more Federal dollars on expanding removal of
this phase when it has already been proven that it causes even more of
a problem to both the claimants and the courts.
Use of Attorneys/ALJ's In Claims Processing
The SSDI/SSI claims process should be set up so there is no need
whatsoever for claimant paid legal representation when filing for
benefits
Currently the program is set up to line the pockets of the legal
system, since a claimant is often encouraged from the minute they apply
for benefits to get a lawyer. Why should you need to pay a lawyer to
get benefits that you have earned? Every effort should be made to set
up the claims process so there is very little need for cases to advance
to the hearing and appeal stage since that is where one of the major
backlog and wait time exists. It seems that this would create an
incentive when work loads at DDS offices are especially high, to
rubberstamp denials, moving them to the hearing phase, and pushing
their workload into the already overloaded Federal court system, rather
than take a little extra time to properly review the claim. The need of
lawyers/reps to navigate the system and file claims, and the 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. In other words the system is
structured so that it is in a lawyer's best interest for your case to
drag on since they get paid 25% of a claimant's retro pay up to $5300--
the longer it takes the more they get. From the horror stories I hear
from other claimants, many attorneys are definitely taking advantage of
that situation. I can't even begin to tell you how many times I am told
of people whose health is deteriorating, who are losing their homes and
filing for bankruptcy because their attorneys do nothing to try and
speed up their claims. Many qualify for dire needs status or are
eligible for pre-hearing/review on the record status in order to
prevent these problems but are never told that by their attorneys, who
sit back and do nothing but collect from a claimant's retro check.
Claimants are told that there is a major backlog and since they are
unaware of SS regulations they do not question this fraudulent
behavior. We view this as a criminal act, yet there is almost oversight
on this problem. Instead, from what I have seen in the Commissioner's
DSI plan, she is catering to the law community in much the same way
that the pharmaceutical companies were catered to when the Medicare
Part D plan was instituted. Just as it has with the Medicare program,
this adds a greater cost and processing time to the administration of
the SSDI program and again adds a financial burden for the disabled.
Instead the SSA 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.
We are not in favor of any changes that would result in more
hearings, lesser back payments or a greater reliance on attorneys for
claimants to receive benefits. The Commissioner has proposed that a
record would be closed after an ALJ issues a decision and new/material
evidence would only be allowed to be submitted under certain limited
circumstances. This is totally unacceptable, given that a great number
of ALJ decisions are currently appealed due to rampant bias against
claimants, fraudulent behavior and poor performance by the ALJ's
currently serving. We have even heard stories of claimants who are
being told by ALJ's that they must give up years of back pay or the
judge will not approve their disability claims, which is criminal
behavior! We are in favor of 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. We want
to see the institution of a very strict code of conduct for
Administrative Law Judges in determining cases and in the courtroom,
with fines to be imposed for inappropriate conduct and payable to
claimants. We also ask that the GAO review the role of the ALJ in the
processing of disability claims and their decision making which has
often proven to be very harmful to claimants. We suggest that the GAO
and this Subcommittee look at the following report:
General Bias and Administrative Law Judges: Is there a Remedy for
Social Security Disability Claimants?
http://organizations.lawschool.cornell.edu/clr/90_3/
Vendel_90_Cornell_Law_
Review.pdf
Ticket To Work Program--Catch 22--Fear and Mistrust of the SSA
According to SSA disability guidelines: Social Security pays only
for total disability. No benefits are payable for partial disability or
for short-term disability. You have a valid claim if you have been
disabled or are expected to be disabled for 12 consecutive months, or
your condition will result in your death. Your condition must interfere
with basic work-related activities for your claim to be considered. If
your condition is severe but not at the same or equal level of severity
as a medical condition on the list, then they must determine if it
interferes with your ability to do the work you did previously. If it
does not, your claim will be denied. If you cannot do the work you did
in the past, SSD looks to see if you are able to adjust to other work.
They consider your medical conditions and your age, education, past
work experience and any transferable skills you may have. If you cannot
adjust to other work, your claim will be approved. If you can adjust to
other work, your claim will be denied.
SSA forces the disabled to go through years of abuse trying to
prove that they can no longer work ANY job in the national economy due
to the severity of their illnesses in order to be approved for
benefits. The resulting devastation on their lives, often totally
eliminates the possibility of them ever getting well enough to ever
return to the workforce, even on a part time basis, in order to utilize
the SS Ticket to Work program. Then, sometimes weeks after they are
finally approved for SSD/SSI benefits, after their health and finances
have been totally destroyed beyond repair, they receive a ``Ticket To
Work'' packet in the mail. A cruel joke to say the least and it is no
wonder that the disabled fear continuing disability reviews,
utilization of the Ticket to Work Program, and distrust the Federal
Government! The Ticket to Work Program is often viewed as a carrot and
stick it to the disabled approach.
How Backlogs In The SSDI/SSI Program Place An Increased Burden On The
States
Due to the enormous wait times that applicants may endure while
waiting for their SSDI/SSI claims to be processed, many are forced into
poverty and have to apply for other state funded programs such as
Medicaid, food stamps and cash assistance, who wouldn't have needed
them, if their disability claims were approved in a timely manner.
Another very stressful demeaning process to say the least. This causes
an enormous burden across this nation, on those state Social Service
programs. This problem would be greatly reduced if the Federal SSD/SSI
program was fixed, and the states would definitely reap the benefits in
the long run. Also 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. Disability claimants who file for state Social Services
assistance while waiting to get SSI benefits in many states, have to
pay back the state out of their meager disability benefits once
approved, in most cases keeping them below the poverty level and
forcing them to continue to use state funded services for the rest of
their lives in addition to the Federal SSI program. They are almost
never able recover or better themselves, since they can no longer work,
and now have to rely on two support programs instead of just one. In
all states there should be immediate approval for social services (food
stamps, cash assistance, medical assistance, etc.) benefits for SSD
claimants that don't have to be paid back to the states out of their
SSD benefits once approved. We are calling on the SSA, the GAO and the
states to make it a priority to start tracking this connection and act
swiftly to correct this problem. Since states are being crushed under
the increased Medicaid burden I am sure that this would do a great deal
to alleviate that problem as well.
Continuing Disability Reviews
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. In those cases total elimination of CDR's should be
considered or a longer period of time between reviews such as 10-15
years rather then every 3-7 years, as is currently the case. This would
save the SSA a great deal of time, money and paperwork which could then
be used to get new claimants through the system faster.
Unless everyone of the concerns/issues outlined above is addressed
and resolved in a timely manner, the SSA, Congress and the State
governments will continue to fail at what they were put in place to
do--serve the people. 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/society the right to ignore or even abuse us? I think
not! We are your mothers, fathers, sisters, brothers, children, friends
and acquaintances, and most people think that this could ever happen to
them. Remember that at any point in time you too could be facing our
dilemma and contrary to what may be popular opinion, nobody willingly
chooses this type of existence. I only hope that I can live long enough
to see you do what is right for all of us. Since we can no longer work
due to our disabilities, we are often considered ``disposable'' people
by general and government standards. In addition our cries and screams
are often ignored, many preferring 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 may be disabled but we vote! Thank you for your time.
Please check out my website at:
http://www.frontiernet.net/8lindaf1/bump.html/
Statement of Earl Tucker
My Name is Earl Tucker. I am President of AFGE Council 224 which
represents the Quality Assurance workers in the Social Security
Administration.
The Social Security Administration's (SSA) is facing major
challenges today because of staffing and resource shortages everywhere
and not just in processing our disability cases. The ``Improved
Disability Determination Process'' does not cure the lack of necessary
resources to do the job. Even with this new process, it is still going
to require an additional $1.2 billion over a ten years period to
process disability cases. I think this money could be well spent
funding the current process and hiring more staffing. More staffing
alone would improve the processing of disability cases without spending
over a billion dollar on a plan that may or may not improve the
process.
Now that the rules have been finalized on the new disability plan,
I still have the same questions that I asked on the proposed rules for
the disability plan and some questions even prior to the publishing of
the proposed rules. On the proposed rules and prior, these were some of
the questions that I asked:
Below you will find some specific comments to the 79 pages of the
proposal. I will be using printed page numbers for reference.
3rd paragraph under ``Program Trends'' discusses the increase in
DIB claims and the greater complexity of claims (due to more mental
claims and vocational related issues) that have caused larger
workloads. It is still unclear how the new system will resolve the
complexity of these cases. These cases still require a sufficient
number of staff with adequate training that have access to reference
materials. That's the solution, which can be done under the current
system.
5th paragraph of Page 5 states that eDib alone is not enough to
improve the system. According to the SSA Commissioner, they have to
change the process ``to significantly improve disability
adjudicators.'' Again, how is this manifested? A good adjudicator is
one that is trained, resourced, experienced and not subject to
arbitrary speed-up quotas.
Another thing to keep in mind is that an eDib claim takes longer to
review by a DQB examiner than a paper one when you have to screen all
the pages on a desktop computer monitor page by page subject to the
speed of the program and navigate around the file.
See midway down on page 6 where they discuss ``both in-line and
end-of-line'' QA ``at every step of the process.'' They still have to
detail how this will be done. How exactly do you complete an ``in-
line'' review of a disability case? Do you halt case development to
critique how one handles a medical source while another is on the way
that could resolve some issue?
Go to Paragraph 5 on page 9 that goes into the changes. Again, they
boast of a processing time reduced by 25% without providing the basis
for this. How can this be done if you replace the Reconsideration
second level review with a Reviewing Official step and the Appeals
Council with the Decision Review Board while still retaining the
initial step and the ALJ? You still have the same number of steps, so
where is the reduction in time by these changes.
The need for a Quick Disability Determination unit (completing easy
cases in 20 days) seems dubious. We already have provisions to do
Presumptive and Teri cases to expedite a decision. People who are
``obviously disabled'' already receive fast decisions from the DDS, so
how will another bureaucratic restructuring solve any problems? Likely
reasons for these cases not being allowed ASAP would be mailing issues,
securing adequate documentation, inadequate staffing and increasing
work loads at the DDS. How will the Quick Unit resolve these issues?
NADE wrote that SSA stated that the DDS could not make these allowances
``since they wouldn't have access to medical specialties able to make
these diagnoses.'' Why not give them the access? Weren't all components
in the process going to have access to the ``same medical and/or
vocational experts?''
Under ``State Agency Determinations'' on Page 11, they restate the
need to document and explain the basis for every decision. This is one
of the most important things at all levels. This will not happen with
only a program reshuffle.
Also on Page 11 is a section on ``Expertise and the Federal Expert
Unit.'' The concept of a national network of medical and vocational
experts is worthy. However, other considerations must be kept in mind.
How can an adequate, independent quality review be completed if every
component in the system uses the same medical and vocational experts?
Often DDS errors are caused by inadequate or incorrect input from their
medical or vocational staff. Just how likely would an error from a
centralized source be rectified if they are also the quality review
source? A resolution may involve different national networks for
different components (DDS, ROQA/DQB, OHA).
Under ``Reviewing Official'' on page 13, they describe the
Reconsideration Step as a ``rubber stamp'' with no ``appreciable
value.'' Our experience as a DQB examiners does not bear this out.
Reconsiderations many times do reverse initial decisions and they are
regularly sampled by the DQB. Moreover, a current successful program
has New York DDS reviewing the Recons of New Jersey and Maryland DDS'.
Such a system would preclude even the appearance of a ``rubber stamp''
in addition to having a truly independent second pair of eyes from a
different DDS reviewing the claim.
I also find it silly to mandate that these Reviewing Officials have
to be attorneys. On the penultimate paragraph on Page 13, they list the
reasons (or delusions really) why attorneys should do this. Yet, the
Commissioner forgets that ALJs are attorneys and that studies have
found that they often make mistakes. Law schools do not train you for
Social Security disability sequential evaluation process. The ability
to adjudicate and explicate as directed by policy are the important
skills. They are inculcated and maintained with experience, adequate
training, and resource access whether you go to law school or not.
Moreover, it is unclear if an adequate number of attorneys could be
attracted at the current salary levels offered.
Also, please note in the second paragraph of page 14 that the
Reviewing Official (even though he is a lawyer!) still has to send the
claim to the Federal Expert Unit (and delay adjudication) before
denying the claim again. When workloads increase, employees may feel
pressure to allow the claims to avoid ``timeliness'' delays.
An important section for us is ``Ensuring Quality'' on page 23.
They again fawn on ``in-line'' review of cases without detailing how to
do this. Most importantly, the Commissioner pushes the replacement of
DQB's with a ``new centrally-managed quality assurance system,'' but
she fails to detail or explain how this will be done. How more
``centrally managed'' could an organization be that reviewed over
326,000 cases in FY 2004? Currently, 10 regional offices answer to a
central office whose job is to maintain consistency. Even with eDib,
there will be some variance how different people, units, or offices
view a case. Moreover, how will more centralization ``encourage local
flexibility?'' Another issue is how a totally centralized office could
handle all the local court-case mandates and idiosyncrasies of case
development nationwide.
See the second paragraph on page 24 about judging ``service,
timeliness, productivity, and cost as components of quality along with
accuracy.'' I addressed this abstract and untenable wish in my Lewin
Report review.
Please See page 29 concerning Reopening. This extreme restriction
of its application is a bad idea. It is not uncommon that DQB examiners
reopen prior claims under the current rules. In this way we can correct
prior denials so that do not have to go through the OHA process. A
common scenario involves people with mental illness who cannot follow
deadlines due to their condition. The restriction on reopening will be
a disservice to some of the most vulnerable people in society and
propel cases to the OHA that can be resolved beforehand.
Page 31 lists the costs for the proposed rules which are 1.2
billion dollars between 2006 and 2015, according to the Office of the
Chief Actuary. Considering how such estimates usually understate costs
and that there are often unforeseen, unfunded hurdles, will long-
standing budget deficits permit such expenses? As always, a proper
system needs proper funding. Our current system has been cheated for a
while, so why should we think that the new system will be funded as it
should?
These are some additional Questions that I had long before the
proposed disability plan:
1) The GAO recently found that the cost-benefit analysis of SSA had
underestimated the costs of eDib. What are your current cost
projections for eDib and how much do you expect it to save SSA and the
Trust fund? What are these figures based on?
2) In your testimony before the House Ways and Means Committee, you
stated that ``a shift to inline quality review would provide greater
opportunities for identifying problem areas and implementing corrective
actions and related training.'' Moreover, ``an in-line quality review
process managed by the DDSs and a centralized quality control unit
would replace the current SSA quality control system.'' Later, NADE
reported in their meeting with you on 10/24/03 that SSA agreed with
having PER reviews ``done centrally'' and ``that DQB will not exist, as
we know it.''
What are your exact plans for the DQB staff and why are you doing
this considering the time and effort spent on the proposition that the
PER review expanded to Title XVI for greater DQB review? Why do you
want to replace a disability quality assurance system that saves the
American taxpayer more than $13 for very $1 invested and has saved over
$300 million annually for the Trust funds? Prior to the PER review, SSA
operations and state DDS' reviewed their own work resulting in a
program in disarray and requiring Congress to mandate an independent
PER review. Why do we want to risk this again? How will accuracy be
increased in this system? How likely is it that Congress will alter the
statutory requirements of PER?
3) What has been the impact and influence of the November 2000
report of the Lewin Group and the Pugh, Ettinger, McCarthy Associates
upon your proposed disability program? Were they consulted or did they
have any input on the new system? When will Booz, Allen, Hamilton
finish their review of the California DDS in-line quality review and
will their report be made available to us?
4) Can the new disability system function without your requested
increases in the Service Delivery Budget? Couldn't an increased budget
be used to adequately fund the current system? The major criticisms you
mentioned about the current approach involve inadequate documentation
and waiting times. These problems are caused by staffing issues and
work load demands, which with proper budgeting could be minimized in
the process currently.
5) Why is an Expert Review (ER) panel needed for Quick Decisions if
we have a presumptive allowance process for SSI cases that can be used
by the FO and the DDS to currently allow these cases expeditiously?
People who are ``obviously disabled'' already receive fast decisions
from the DDS, so how will another bureaucratic grouping solve scenarios
that do not currently exist? Likely reasons for these cases not being
allowed ASAP would be mailing issues, documentation securing, and
inadequate staffing and increasing work loads at the DDS. How will the
ER resolve these issues? NADE wrote that SSA stated how the DDS could
not make these allowances ``since they wouldn't have access to medical
specialties able to make these diagnoses.'' Why not give them the
access? Weren't all components in the process going to have access to
the ``same medical and/or vocational experts?'' Moreover, who is going
to provide independent quality review of the ER panel?
6) How can an adequate, independent quality review be completed if
every component in the system uses the same medical and vocational
experts? Often DDS errors are caused by inadequate or incorrect input
from their medical or vocational staff. Just how likely would an error
from a centralized source be rectified if they are also the quality
review source?
7) How will no SSA employee be ``adversely affected'' by your
approach if the quality review is centralized, DQBs are ``eliminated,''
and eDib greatly reduces the current work of Program Assistants?
8) On what basis do you assert that ``processing time will be
reduced by at least 25%'' if you add an ER and replace the
reconsideration step with a Reviewing Official (besides the demands
required by reviewing the pilot projects that may become national)?
9) Our Regional Director has been telling us that the new approach
would only effect the QA review in order to mollify us, but this seem
very unlikely. The new approach would totally change how the PER and QA
process is completed. How could this be done without DQBs since PER
review is mandated by Congress?
10) With the current DQB organizational structure, the performance
of any DDS can be scientifically validated. How do you plan to validate
statistically the performance of each DDS without the DQBs? Do you want
to know the actual performance of each DDS? Do you only want a
statistically valid DDS' performance at the national level?
11) There are many Acquiescence Rulings by the United States
District Courts that differ from one District Court to another. How
will Acquiescence Rulings of the different District Courts be handle
centrally?
In conclusion, the current process has always been under funded and
cheated since day one. I believe it still would work if properly
funded. I don't see Congress spending an additional $1.2 billions over
10 years to implement this new disability plan.
Earl Tucker
Statement of C. Richard Dann, Union of American Physicians and Dentists
We are submitting this statement for the record for the June 15,
2006 Hearing on Social Security Disability Service Improvement on
behalf of the Union of Physicians and Dentists (UAPD)/American
Federation of State, County and Municipal Employees (AFSCME), AFL-CIO.
UAPD represents 140 Medical Consultants in California's Disability
Determination Services (DDS) and AFSCME represents 1.4 million public
service and health care workers.
UAPD has been monitoring proposed changes to the Social Security
Disability process since the Redesign was first proposed in April 1994.
We have offered written comments to the Social Security Administration
(SSA) and our members have testified before this Subcommittee in the
past with suggestions to improve the Disability process.
With final regulations in place, our members stand ready to
implement the new system. And, while we agree that many of the changes
will improve the system, we have grave concerns about one requirement
that is yet to be determined--specifically the qualifications for the
position of Medical Expert in the Medical and Vocational Expert System
(MVES). The final regulations indicated that the Social Security
Commissioner will publish the requirements for these positions at a
later date. Therefore, our comments will focus on the requirements that
are under consideration by the Commissioner.
Last year the Institute of Medicine issued an interim report on the
qualifications and organization of Medical Consultants in the New
Disability Process. The Institute report recommended that all Medical
Consultants and Medical Examiners at the state and federal levels be
Board certified. We strongly disagree and are concerned that the
Commissioner will rely upon this flawed analysis to implement these
recommendations in her final guidelines. Board certification
requirements will not enhance the speed or accuracy of adjudication,
would greatly limit the number of potential candidates, creating a
large backlog in the DDDs, and is simply not practical.
Commissioner Barnhart has expressed concerns that various medical
specialties are not readily available to all DDS adjudicators. However,
there is a very limited need for such specialty consultation; well-
versed generalists who understand the processes, treatments and
prognosis for a wide range of diseases, as well as the federal
statutes, are better qualified than specialists to make the vast
majority of disability assessments at the state DDSs.
The standard medical model in the United States and most countries
is that generalist providers initially evaluate patients so only the
most ill or complicated cases are referred to specialists, effectively
utilizing their unique skills. The factors to determine functional
impairment are relatively simple and succinct: the ability to lift,
carry, stand, walk, sit, reach, grasp, turn, push, pull, pinch, feel,
bend, squat, climb, crawl, reach, see, hear, speak, and environmental
tolerances do not require specialty assessment. The basic findings for
gait, station, range of motion, strength, dexterity, sensation,
balance, vision and hearing are fairly simple medical concepts, and
understanding of those factors is not enhanced significantly by
specialty training.
A specialist's capabilities are not needed on every case involving
that specialty. For example, although hypertension involves the
cardiovascular system, the vast majority of blood pressure prescribing
is done by generalists, not cardiologists. The vast majority of care
for back pain is similarly done by generalist MDs, not orthopedists.
Specialists are rarely better equipped to adjudicate most SSA
Disability cases than generalists.
We strongly oppose replacing Medical Consultants with non-physician
providers in DDS or MVES. While arbitrarily urging Board certification
of all physicians and PhDs in the Program, the Commissioner has
paradoxically indicated that they already are recruiting for nurse
consultants for the Boston rollout of the new process. Use of these
other less credentialed medical sources offers no advantages; they have
less medical training and knowledge than the physicians and PhDs
employed currently as Medical Consultants, with the disadvantage of
decreased legal defensibility in appeals.
The DDS and Regional offices rely heavily Medical Consultants and
it is estimated that currently five percent or less of the system's PhD
Medical Consultants are Board certified. Requiring Board certification
would leave a gaping hole in Psychiatric Medical Consultant capability,
an area currently underserved in some states. Affordability and
availability are the major obstacles to increasing the numbers of
medical specialist experts in the SSA Disability program. The Institute
report further recommended a grandfather period of five years for
current non-Board certified Medical Consultants. After that period,
those Medical Consultants without Board certification are presumed
suddenly not to be qualified to make the same assessments that they
have been making for five, ten or fifteen years.
Most current Medical Consultants are mid to late career
professionals, and Board certification was not as prevalent 25 years
ago. Board certification requires multiple years of in-hospital
residency training and passing Board examinations, and is just not
feasible for a mid or late career DDS Medical Consultants. If SSA makes
Board certification mandatory, it should apply to new applicants only,
and incumbent MCs should be grandfathered. Any less accommodating
policy will result in acute MC shortages and increased costs due to the
higher salaries board certified doctors would demand.
And, finally, requiring Board certification is impractical because
most National Medical Boards require Recertification after five or ten
years. Most recertification's require ongoing practice in that
specialty area since last certification, as well as passage of a
written examination. If SSA imposes this requirement, many medical
consultants would not qualify for Board recertification because they
would not have been in practice in their specialty.
As an alternative, we strongly endorse federal standardization of
Medical Consultant training and would like to emphasize that this is
not a new idea. After over ten years of work by a group of DDS Training
Coordinators, DDS Medical Consultants, Central Office Training staff,
and Central Office Medical Consultants, a national SSA Disability
Medical Consultant Training Curriculum was finally completed. A UAPD
medical consultant was one of the members of that SSA workgroup.
We also would like to point out that the Board certification will
not solve the problem of the high reversal rate by the Administrative
Law Judges (ALJs). The reasons for this discrepancy in the decision
making process between the ALJs and the DDSs are actually pretty
simple: the ALJ receives minimal medical training (typically two weeks
in California, the nation's largest DDS) and there is currently no SSA
quality review of ALJ decisions as there is for DDS decisions. The ALJ
makes decisions based on ``substantial evidence,'' rather than the
``preponderance of evidence'' standard that the DDS applies. Our
members who review cases for Continuing Disability Review (CDR) might
find the following scenario: two DDS teams (initial and
reconsideration) considered all evidence and arrived at a decision of
``no severe or minimal impairment;'' an ALJ then heard the case and,
based on poorly substantiated endorsement of disability from a treating
source, assessed the claimant ``disabled.'' This likely allowance error
cannot be reversed at the next CDR due to the ``Medical Improvement
Review Standard.'' Under this standard, the primary assessment on a CDR
is not current assessment of disability, but rather an assessment of
whether ``significant medical improvement'' has occurred since the last
assessment of disability. If the two DDS teams judged that the claimant
was capable of extensive work but the ALJ ruled that they were
extremely limited with the same findings, subsequent CDRs will
virtually never be able to show ``significant medical improvement.''
That seems quite contrary to the Commissioners goal of ``fostering a
return to work at all stages.''
The need for consistency between DDS and ALJ decisions is a very
old problem. Many attempts have been made to resolve it. In the 1990s
Process Unification Training was undertaken to increase the rate of DDS
allowances and decrease the number of ALJ reversals. DDS allowances
increased, but ALJ allowance rates have not fallen appreciably. ALJ
decisions should use the same standards as the DDS, should be subject
to quality review, should have the same accountability, and a mechanism
to reverse ALJ decisions unsupported by the evidence on CDRs.
We appreciate the opportunity to offer our perspective to this
Subcommittee and we also urge the Subcommittee members to ensure that
there are adequate resources for the current process and for
implementation of the new process. There already are large backloads of
CDRs due to funding shortfalls, and without sufficient funding, neither
the current process or the new process will provide high quality
services to applicants and recipients.