SDRemarks

schnaufer.com
[ Home ] [ Up ] [ CALJ ] [ SDRemarks ]

Last updated May 21, 2004 9:45 p.m. Central Time

May 13, 2004 Remarks of Commissioner
of Social Security Jo Anne B. Barnhart

I.          Introduction and Disclaimer
II.         New Disability Process
III.       Work Incentives
IV        Social Security Protection Act of 2004
V.        Model Rules
VI.       Revision of Listings
VII.      Commitment to Stay Commissioner

I. Introduction and Disclaimer

Commissioner of Social Security, Jo Anne B. Barnhart, spoke for about 1 hour on May 13, 2004 at the plenary session of NOSSCR’s semi-annual meeting (held in San Diego ). Below are my notes from her talk. They are not a transcription, they are incomplete, and they may include errors. Please contact the Commissioner to learn her actual views.

Much of what Commissioner Barnhart said to NOSSCR on May 13, 2004 is included in her remarks on September 25, 2003 to the Social Security Subcommittee of the Committee on Ways and Means. See www.socialsecurity.gov/disability-new-approach/.

The notes below include in sketchier terms much of what is found in Commissioner Barnhart’s written testimony from September 25, 2003. Please read her written testimony first.

II. New Disability Process, Including AeDIB

Commissioner Barnhart is implementing a new approach to disability adjudication. Improving the disability process is a priority. Several short-term initiatives have had significant results, such as cutting the processing time at the Appeals Council (AC).

Commissioner Barnhart must answer three questions:

(1) Why does disability adjudication process take so long? (This is the famous question that Bush 43 asked Commissioner Barnhart.)

(2) Some people are clearly disabled. Why does it take so long to find people who are clearly disabled?

(3) Why would a beneficiary after having gone through a long disability adjudication risk losing benefits by returning to work?

The goals are to make the right decision as early in the process as possible and to promote work at all stages of the adjudication process.

Changes will be made that can be accomplished by regulation instead of legislation. Legislation takes time, and Commissioner Barnhart cannot determine the outcome of any legislation.

Under Commissioner Barnhart’s plan, initial applications will still be taken at the Field Offices. The state agencies will continue to adjudicate initial claims.

The appeal periods (60 days) will not change.

There will be quick decisions to identify those claimants obviously disabled, e.g., with ALS. There will be an expert review unit handling the quick decision cases. More resources will be spent on claims harder to decide.

The Agency will have medical review units with expertise broken down by specialty. This raises the problem of claimants with a combination of impairments. The Agency is working on a solution.

The medical review units will be available at all stages of the process. The medical review units and personnel can be anywhere (because AeDIB allows review from any location).

If a quick decision is not made, a claim goes to the state agency for initial adjudication.

The prototype (e.g., adjudication with SDM) will stop.

Reconsideration will be eliminated.

DQB will be eliminated. Now, quality will be assessed inline. Quality review is not separate and apart form the disability adjudication process. Quality review is not a post-mortem, but an interactive process. Quality is extremely important.

The Agency is working with the state agencies to get an inline process. A contractor is also working on a new approach for quality review.

After the initial determination, a claim will go to a Reviewing Official (RO) who is a federal Agency attorney under direct, centralized Agency control. The ROs will combat the problems of different state agency allowance rates. ROs will not be assigned to one state, but multiple states.

There are 3 outcomes the RO provides:

(1) Allowance

(2) Recommended disposition (denial)

(3) Pre-hearing report (when more information is needed)

The RO can communicate with state agency medical consultants. VEs will have more involvement before a claim reaches the ALJ level. An ALJ will not use the same medical and vocational personnel as the RO. For example, medical and vocational personnel from one region will do RO adjudications from one area and ALJ adjudications from another.

A claimant may appeal from an RO notice to an ALJ for a de novo hearing.

The AC will be eliminated. The elimination of the AC will not result in more court cases. The ALJ results will be much more defensible. Because the ALJ results will be defensible and correct, they will not need post-ALJ administrative review.

Today, the AC remands 25% of claims. If the new process resulted in 25% mistakes, the new process would be a failure. The very purpose of the new process is to preempt such wholesale errors.

Claimants with unfavorable ALJ decisions proceed directly to court.

There will be a quality review of ALJ decisions, both favorable and unfavorable. A case selected for quality review will be sent to an oversight panel (OP) of 1 Administrative Appeals Judge (i.e., an AC member) and 2 ALJs. The ALJs and the AAJ may be in different physical locations. The OP makes a decision itself. The OP does not remand to an ALJ for further proceedings.

If the OP pays the case, the case is over. If the OP denies the case, a claimant can go directly to court.

During the question answer session, Commissioner Barnhart stated that a specific entity was addressing next month the impact of the elimination of the AC on the court caseload.

Commissioner Barnhart stated that the Appeals Council is not the backstop it that it is represented to be. She does not want to open the floodgates, but to end erroneous benefit denials. Unlike the old process, the new process will not produce the same level of erroneous denials of benefits.

Under the new process, the record closes when an ALJ renders a decision. Commissioner Barnhart is looking at various good cause exceptions.

The OP will look at all types of cases. The OP will have rotating ALJs. No panel would be fixed.

Commissioner Barnhart stated that there would be quality assurance for record development and outcomes. FOs must submit more information to the state agencies for initial determinations. If the required information is not provided, the case does not move forward.

From the state agency to the RO, the RO must see if the state agency rationale has an adequate explanation. The RO can remand the case to the state agency for further development and/or an improved rationale.

There is built-in accountability.

When an RO issues a recommended dismissal to an ALJ, an ALJ is not bound by the RO’s recommendation, but must explain why the ALJ agrees or disagrees with the RO.

There will be ROs who specialize in certain types of cases.

With the ROs, decisional accuracy will be increased. The RO will give the Agency a single national perspective.

Commissioner Barnhart recognizes that she is making serious changes and that the Agency in the past has received mixed results when reforming the disability adjudication process. She believes that she can make the changes given the “perfect storm” of factors (such as an aging population and more applications). The question is not what should be done, but what will be done. Change will occur.

New forms will be associated with AeDIB. There are or will be focus groups looking at new forms. In Fiscal Year 2005, new forms will be rolled out.

Representatives will have access to the AeDIB documents by receiving a CD. The Agency is working on how to ensure that representatives have the most recent documents.

Accelerated eDIB is being rolled out in Mississippi . All changes to the disability process are dependent on AeDIB. AeDIB changes the possibilities to change service. A claim file must be available immediately. AeDIB will save 100 days in locating and 60 days in mailing files. Thus, AeDIB should save alone 160 days.

The goal of the new process is to reach the right decision. The new process is not about reducing Agency resources. AeDIB will not result in a decrease in resources.

The time frame for the new process is dependent on AeDIB. In Mississippi, 82 disability examiners are using AeDIB. In Tennessee, 5 disability examiners are using AeDIB. Four states are now working in implementing AeDIB now. The whole process will be rolled out after 10-12 months of success in Mississippi . The earliest date for AeDIB is late 2005 or early 2006.

AeDIB will be successful because the Agency is talking with various groups and components and because there is accountability throughout the process. Commissioner Barnhart is absolutely convinced that there must be system-wide change.

AeDIB will not adversely affect SSA employees. No employee will have to relocate. No employee will be laid off.

III. Work Incentives

Commissioner Barnhart also discussed work incentives – the New Freedom Initiative.

http://www.socialsecurity.gov/pressoffice/disabilityinfo-pr.htm

The work incentives will be entirely voluntary. These are work incentives beyond the Ticket to Work. Among other things, claimants will be offered:

• Temporary benefits (allowance). There will be immediate cash benefits for 12-24 months with medical care.

• Interim medical benefits to help claimants without insurance who might be able to work with proper medical treatment. For example, someone who needed HIV medication might receive interim medical benefits.

IV. Social Security Protection Act of 2004

Commissioner Barnhart commented on the Social Security Protection Act of 2004 (SSPA). She reviewed several sections, including 301 and 302. There is a work group implementing the SSPA, including the provisions related to the capped user fee.

Commissioner Barnhart spoke to the membership of the National Association of Disability Representatives, the non-attorney representatives’ group. She will also have a meeting next week regarding non-attorney representatives.

Under the SSPA of 2004, there is a five-year demonstration project for non-attorney representatives receiving fees directly from the Agency. There are many statutory requirements to become a non-attorney representative eligible to receive withholding. Commissioner Barnhart is planning to have an entity outside of the Agency handle accreditation. Commissioner Barnhart did not say which professional organization would handle accreditation. She does not want SSA employees to handle accreditation.

Commissioner Barnhart intends to meet the March 2005 deadline of the SSPA of 2004 for the demonstration projection. Her target is to have a functioning system by December 2004.

V. Model Rules

The recent model OHA rules have been rescinded. The local rules were well-intentioned.

VI. Revision of Listings

The Agency is looking at revising all of the listings, including the mental impairment listings. Mr. Gerry has a time line for revising the listings, including for soliciting comments.

VII. Commitment to Stay Commissioner

Commissioner Barnhart pledged to serve her entire six-year term. She said that it was important for there to be continuity of leadership for the Agency. She plans to implement the whole package.

The disability program is at a crossroads. The Agency has the most dedicated employees. Those employees deserve a system to provide the service needed. The public also needs timely disability decisions.