[Senate Hearing 108-515]
[From the U.S. Government Publishing Office]
S. Hrg. 108-515
THE ROAD TO RECOVERY: SOLVING THE SOCIAL SECURITY DISABILITY BACKLOG
=======================================================================
HEARING
before the
OVERSIGHT OF GOVERNMENT MANAGEMENT,
THE FEDERAL WORKFORCE AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE
of the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
FIELD HEARING AT CLEVELAND, OHIO
MARCH 29, 2004
__________
Printed for the use of the Committee on Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
94-200 WASHINGTON : DC
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Chief Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Amy B. Newhouse, Chief Clerk
------
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
GEORGE V. VOINOVICH, Ohio, Chairman
TED STEVENS, Alaska RICHARD J. DURBIN, Illinois
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire MARK PRYOR, Arkansas
Andrew Richardson, Staff Director
Marianne Clifford Upton, Minority Staff Director and Chief Counsel
Kevin R. Doran, Chief Clerk
C O N T E N T S
------
Opening statements:
Page
Senator Voinovich............................................ 1
WITNESSES
March 29, 2004
Hon. Jo Anne B. Barnhart, Commissioner, Social Security
Administration................................................. 7
Hon. Hal Daub, Chairman, Social Security Advisory Board.......... 15
Robert E. Robertson, Director, Education, Workforce, and Income
Security, U.S. General Accounting Office....................... 17
Erik Williamson, Assistant Director, Ohio Bureau of Disability
Determination.................................................. 18
Hon. D. Kevin Dugan, Vice President, Association of
Administrative Law Judges...................................... 29
James A. Hill, President, Chapter 224, National Treasury
Employees Union, Office of Hearings and Appeals, Social
Security Administration........................................ 31
Marcia Margolius, Esq., Brown and Margolius, L.P.A............... 32
Alphabetical List of Witnesses
Barnhart, Hon. Jo Anne B.:
Testimony.................................................... 7
Prepared statement........................................... 45
Daub, Hon. Hal:
Testimony.................................................... 15
Prepared statement with an attachment........................ 55
Dugan, Hon. D. Kevin:
Testimony.................................................... 29
Prepared statement with an attachment........................ 126
Hill, James A.:
Testimony.................................................... 31
Prepared statement........................................... 133
Margolous, Marcia, Esq.:
Testimony.................................................... 32
Prepared statement........................................... 144
Robertson, Robert E.:
Testimony.................................................... 17
Prepared statement........................................... 107
Williamson, Erik:
Testimony.................................................... 18
Prepared statement........................................... 121
APPENDIX
``Disability Service Improvement,'' submitted by Commissioner
Barnhart....................................................... 146
``Impact of Not Passing a Budget On Time,'' submitted by
Commissioner Barnhart.......................................... 147
``Category Hiring vs. Rule of Three,'' submitted by Commissioner
Barnhart....................................................... 148
Letter to Hon. George V. Voinovich from Jo Anne B. Barnhart...... 149
Questions for the Record from Commissioner Jo Anne B. Barnhart... 151
THE ROAD TO RECOVERY: SOLVING THE SOCIAL SECURITY DISABILITY BACKLOG
----------
MONDAY, MARCH 29, 2004
U.S. Senate,
Oversight of Government Management, the Federal
Workforce and the District of Columbia Subcommittee,
of the Committee on Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9 a.m., in the
Vocational Guidance Services Headquarters, 2235 East 55th
Street, Cleveland, Ohio, Hon. George V. Voinovich, Chairman of
the Subcommittee, presiding.
Present: Senator Voinovich.
OPENING STATEMENT OF CHAIRMAN VOINOVICH
Senator Voinovich. The hearing will come to order.
I would like to open by thanking the Vocational Guidance
Services for allowing us to use this very wonderful, brand new
facility. And I think the people of Cleveland are fortunate to
have such a nice facility.
And, of course, this organization has a long history going
back until 1890. So sometimes we think that some of the things
we are dealing with today are just new on the scene, the last
several decades. But the fact is that the challenges have been
around since that time and it is nice to know the community
recognized the challenge back in 1890.
I want to thank all of you for coming today. Congressional
hearings are an integral part of the legislature and oversight
process.
I serve as the Chairman of the Subcommittee on Government
Management, the Federal Workforce and the District of Columbia.
Ms. Barnhart, you should be familiar with my Subcommittee since
you worked for Senator Roth on the Governmental Affairs
Committee before he went to the Finance Committee.
Ms. Barnhart. Yes, I was.
Senator Voinovich. It is a pleasure to hold this hearing on
the Social Security Disability process which impacts many
Ohioans including 180,000 people whose applications were
processed at the State level last year. I want you to know my
opening statement is going to be a bit longer. Ordinarily I
have three or four other senators sitting with me, so I'm
taking advantage of their time but it will be for the better.
We are going to examine the cause of the Social Security
Disability backlog and, more importantly, Commissioner Jo Anne
Barnhart's approach to the overall process. The Social Security
program is a separate agency retirement program. I think people
think of Social Security and know about a couple other programs
that come within the purview of Social Security. It also
includes Disability Insurance (DI), and Supplemental Security
Income (SSI). Last year those two programs alone paid 107
billion dollars in benefits to roughly 14.5 million disabled
workers and family members.
Now, during my time in the Senate I have become familiar
with the problems of the disability process. In fact, Senator
DeWine and I currently have 360 disability cases open on behalf
of our constituents. These are people frustrated with the
system and have come to us for our help. In my time in the
Senate we have assisted about 950 Ohioans with disability
cases.
In addition to the case load that we have in our
constituency office in Columbus, I know there are thousands of
constituents waiting for a hearing and trying to get through
the red tape. The fact of the matter is that the disability
process should be so efficient that the Members of Congress
should not have to intervene on behalf of people who are
frustrated with the system. And sometimes, Commissioner,
perhaps we don't help the matter because we get involved and we
try to expedite certain cases because of extenuating
circumstances.
But I will never forget when I became governor of Ohio we
had a disastrous situation with the Ohio Bureau of Workers'
Compensation, which I refer to as the silent killer of jobs.
And our goal was to streamline the process. State legislators
were constantly contacting the Bureau on behalf of Ohio
residents. And after 8 years we eliminated that problem. The
Bureau stopped getting letters because the system was handling
the needs of the people that were going through the process.
As many of you know, the Cleveland Social Security Office
of Hearings and Appeals, OHA, has one of the longest processing
times for disability cases in the Nation. And that's one of the
reasons why we have so many cases come to us in our
constituency office.
Currently, the national processing time at the hearing
level is 368 days. The processing time in Cleveland is an
astounding 550 days. Unfortunately, residents throughout Ohio
face similar delays in three hearing offices in Cincinnati 412
days, Columbus 477 days, Dayton 381 days. These are all times
way above the national average.
When examining the case load in Cleveland, it is evident
slow processing time is only part of the problem. For instance,
at the end of last month, the Cleveland hearing office had a
backlog of 8,796 cases of which 5,461 had yet to be assigned to
a particular judge. Those are just numbers but, folks, there
are people behind those numbers.
Commissioner Barnhart joins us today to talk about how she
will resolve this situation. I mentioned to her the 65,000
people that she has responsibility over, and I was with Mr.
Daub who brought it to my attention, there's another 15,000
that work in the State organizations. That's a lot of people.
I thank you, Commissioner, for taking your time to be here
today. I am honored you came to Cleveland. I can assure you
your visit here and the visits of the other witnesses are going
to be worthwhile for you because I'm holding this hearing to
help you.
I would like to commend you for not only recognizing the
shortcomings of the disability system but for trying to work
with your stakeholders to improve the disability process. I'm
going to ask how much involvement your stakeholders have. Your
challenge is to utilize today's technology to update the
disability process that was created back in 1956. To accomplish
this task, you must work within the confines of the Federal
bureaucracy while balancing the needs of several key
stakeholders. Given these parameters, it is evident that your
work is cut out for you.
We all are very critical of the current situation and want
to know how Congress can help you out, and make it easier for
you to do your work. However, we can't fully appreciate your
task until we understand some of the problems.
Unfortunately there does not appear to be one root cause of
the backlog. I am only going to mention a few. Instead, several
complicated interrelated factors seem to contribute to the
crushing case load. One is the outdated processing system which
needs to be examined and improved. There seems to be a number
of steps within the disability process including the State
operation process, reconsideration, the hearings, and the
appeals. Applicants can even end up in supreme court. It is
unbelievable.
There's specific human capital management challenges,
including the Administrative Law Judge's (ALJ) hiring freeze
and the hearing process improvement. In addition, perhaps your
budget request did not receive adequate funding during the
appropriations process.
And I am also sure people do not understand the fact that
we have not been able to pass a budget on time and have had to
move our appropriations into January. We have done that twice
now. That makes it very difficult for an agency to figure out
what their budgets are going to be and, seemingly, the media
completely overlooks the fact that this happens. Again,
Congress will try this year to get it done on time but it is
easier said than done.
According to a January 2001 report issued by the Social
Security Advisory Board the disability infrastructure was,
``ill-equipped to handle today's massive and complex
workload.'' That was back in January 2001. In fact, the system
itself has changed very little since it was first created.
However, since the disability programs are expected to expand
by 35 percent by 2012, it is imperative this outdated
infrastructure receive an overhaul. Commissioner, I would like
to know how you plan on improving the process.
Second, in January of this year GAO issued human capital
challenges facing State Disability Determinations Services,
DDS. It outlines three key changes facing DDS across the
Nation, high turnover, recruiting and hiring difficulties and
gaps in key skilled areas. From an organizational standpoint,
the current operating structure between the Social Security
Administration and the State Disability Determinations Services
is certainly a unique alignment. I would like to know if the
Commissioner thinks this is the most efficient way to run the
disability system.
Erik Williamson, from the Ohio Bureau of Disability
Determination is here to discuss how they manage their human
capital challenges. I am also interested in learning how they
manage their case load and what steps they have taken to keep
their processing time close to the national average.
Third, in 1996 the merit system, MSPB, ruled the OPM
scoring system unfairly favored veterans over nonveterans. This
ruling started a 7-year hiring freeze of ALJs and ultimately
affects Social Security's ability to manage the disability
program.
SSA currently employs 1,000 administrative law judges out
of the government's 1,200 judges. During ALJ's hiring freeze
OPM took steps to minimize the shortage of judges at SSA by
filling a motion to vacate the MSPB order. The staffing
challenges did not dissipate even though the board lifted the
stay in September 2001 allowing SSA to hire additional ALJs.
The question I have is, why did it take so long for the ALJ
hiring freeze to be resolved. That in itself may be something
we ought to look at. I wonder if this is symptomatic of the
Federal appeals process in general. The ALJ issue should have
been resolved in a couple years. If this were the case, we
would not have had a scarcity of ALJs.
On February 20, 2003, as I mentioned the Federal circuit
ruled that the ALJ scoring formula was applied lawfully and did
not violate the veterans preference. This rule was upheld by
the U.S. Supreme Court on March 2004, almost 8 years later.
Ms. Barnhart. Something like that.
Senator Voinovich. Fortunately the ALJ hiring freeze is
over. Social Security Administration will hire 50 new judges
and I appreciate it if you can provide insight regarding the
number of judges assigned to Cleveland and Ohio to deal with
the backlogs we seem to have as differentiated from some other
States.
Frankly, I would like to know whether 50 judges is enough
to get the job done. In addition, does the list of potential
ALJs contain competent and qualified candidates, is your pay
scale competitive, and is your budget adequate. These are some
of the questions that we need to explore. For instance, I know
State ODS in Ohio wanted to hire 20 employees last year but
were only able to find 17 qualified employees. Some of these
recruitment challenges may stem from the fact that your pay
scale may not be adequate or we may need to do a better job of
recruiting employees to take on these jobs.
Finally, regarding the backlog, can be attributed to the
hearing process improvement (HPI). This three phase initiative
was implemented between January and November 2000. The question
I have is that November 2000, this was the last year of the
Clinton Administration, why would you ever undertake such an
extensive project in the last year of your administration on an
overhaul that his administration should have been working on
during the first 7 years. Maybe I'm being a little critical but
my last year as governor I realized that and I didn't take on
new initiatives. Our mindset was to wrap up any projects and
get some things done rather than starting a whole new process.
Based on reports from the GAO and the SSA inspector
general, the HPI initiative did not have the desired effect.
And the Commissioner inherited an ineffective program. Prior to
HPI, the average national processing time for disability cases
in fiscal year 1999 was 280 days, 2 years later 336 days. HPI
was going to improve the system? As I mentioned earlier, the
current national processing time for disability is 368 days.
According to GAO the failure of the HPI initiative in part
is the result of attempting to implement large scale changes
too quickly without resolving known problems. I would like to
know who designed the HPI, was it a consultant firm? How often
were the people actually doing the work? Were they asked about
how they could improve the system, and the issue of how long it
takes to get the job done?
Right now there are people complaining that we came up with
a new Medicare prescription drug benefit. And a lot of people I
see at meetings say it will take until 2006 to get it done. All
we have is the end of this year, 2004 and 2005, that is a major
undertaking to provide this kind of benefit to millions of
Americans. We want to make sure it is done right, and I think
that underscores, Commissioner, that you can't snap your
fingers and expect something is going to get done overnight.
These are some, but not all, of the reasons for the
backlog. Commissioner Barnhart, I would like to know what you
are doing to improve the situation but also would like to offer
you some advice. Woody Hayes, the Ohio State football coach,
said that you win with people. That's what it is about. If you
think about it, his words apply to the disability process as
well. In order to effectively streamline and improve the
disability process, you have to have the right people with the
right skills and knowledge and the right places at the right
time. Most importantly, however, your approach will only be
successful if it improves the process to the applicants
themselves.
Folders sitting in dockets across the country represent
people with serious health related problems. Those individuals
are my constituents and your clients and they deserve a better
system. I just received a weekly report from my staff about
hangups and busy signals at SSA call centers. SSA's telephone
service conducted a survey with the National Council of
Security Management Association and 93 percent of the managers
at the local Social Security offices and 73 percent of the
managers for 1-800 numbers claim their office is not providing
acceptable telephone service. This gets to the point, answering
the phone is vital to serving the American public and somebody
ought to get on that one right away to make sure that gets
done.
Before I recognize the Commissioner for her opening
remarks, I would like to read excerpts from a letter I received
from a constituents in Pemberville. We asked her if it would be
all right to read her letter and make it a part of the hearing
this morning. Her letter personifies the hardship that occurs
because of a lengthy and drawn out disability process. I asked
consent that it be made part of the record and since I'm
running the hearing it will be. And it is a very well written
letter. And I wouldn't be sharing it with you but it just does
a super job of laying out the situation.
``On September 20, 2002, I suffered a brainstem stroke. My
life as I have known it to be would be forever changed from
that day forth. My road to recovery was long and grueling. When
I inquired from my physicians how long it might take for my
recovery, I was told up to a year or longer. That became very
distressing news for me because I began to wonder how I was
going to manage financially for that length of time.
``After much urging from immediate family, primary physician
and stroke related physician I began the process of filing for
Social Security Disability in November 2002. Had I known then
what I know now, I may have reconsidered that decision. The
paperwork alone is a very lengthy, time consuming matter.
``I received my first notice that I was not qualifying for
purposes Social Security Disability or Supplemental Security
Income. I refiled for a second determination. Once again, a
mountain of paperwork and once again my claim was denied.
``My local Social Security office informed me that the next
step would be a third filing and a hearing before a Social
Security judge. I was also told it would take another 12 months
before I would be granted a hearing. The system is not
structured in such a manner as to accommodate someone such as
me. It is a system that only looks at me as a number, not as an
individual. Every time I have contacted the Social Security
administration I am first asked for my Social Security number
and then, only then, do I become a person with a name.
``The changes that have occurred in my life over the past
year have been devastating for me. In a nutshell, since my
stroke I have lost my job, my home, my health insurance, and
the majority of my savings.
``I want to know why it is necessary to endure such a
cumbersome and long, drawn out process. I truly believe the
system is set up for the average citizen to become so
discouraged they discontinue filing their claim. It seems to me
someone like me gets swallowed up in the big sea of bureaucracy
of the Social Security system. I am a number with no face or
voice.
``The system needs to be revamped. My voice needs to be
heard. I need to know there is someone out there who is
listening and someone who cares.''
Commissioner, I know you have heard these stories before,
perhaps not as eloquently as this woman has written. I would
like to add if anyone else here today is experiencing similar
difficulties, the Social Security Administration has staff in
room 103, to talk to you about your case.
Commissioner, I am anxious to hear from you. I apologize to
you for taking so long in my opening statement but I thought it
would kind of bring everything together and I want to thank you
and I want to thank all the other witnesses that have taken
time, many of you to come long distances to be here with us
today.
It is the custom of this Subcommittee that all witnesses be
sworn in. So I, therefore, ask all of today's witnesses, are
they all here, if you all stand I will administer the oath.
[Witnesses sworn.]
Senator Voinovich. Let the record show that everyone
answered in the affirmative. I also would like to ask if the
witnesses here today would limit their statements to no more
than 5 minutes. I want every witness to know your written
testimony will be entered into the record and be reviewed. The
only witness that I'm going to make an exception to is the
Commissioner herself. You've got a big job and you came from
Washington, you are here today and we thank you for coming here
today and look forward to hearing from you.
TESTIMONY OF HON. JO ANNE B. BARNHART,\1\ COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
Ms. Barnhart. Thank you, Mr. Chairman, and thank you for
providing this opportunity to return to Ohio to discuss my
approach for improving the disability determination process and
also to talk about the initiatives we have underway to improve
service right here in Cleveland.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Barnhart appears in the Appendix
on page 45.
---------------------------------------------------------------------------
As you know, I heard earlier this year from many of your
constituents about their experiences and concerns with the
current disability process. And holding this hearing is clearly
evidence of your personal commitment to the Social Security
program and people we serve. I do appreciate that.
When I became Commissioner, I pledged to improve the Social
Security Disability process. Last fall I presented my approach
for improving the disability determination process to Congress
and since then I have met with the House and Senate staffs, SAA
employees and groups involving every staff of the disability
determination process to discuss this new approach. I met with
the representatives for the attorneys in Social Security,
representatives of the ALJs and ALJs themselves, and many
advocacy organizations. In fact, I kept track of all the groups
I met with and would be happy to provide a list of the meetings
for the record. I personally held sessions to discuss
proposals.
Senator Voinovich. I would like to have them because it
would let me know of the allies we might have.\1\
---------------------------------------------------------------------------
\1\ ``Disability Service Improvement List,'' submitted by
Commissioner Barnhart appears in the Appendix on page 146.
---------------------------------------------------------------------------
Ms. Barnhart. I have incorporated what I think are some
very important changes in my approach to shorten the decision
time and pay benefits expeditiously to people who are obviously
disabled, as well as test new ways to help people with
disabilities who want to return to work to do so.
I have provided a complete description of my new approach
to disability determination in my written testimony, and for
time constraint purposes I won't walk through the entire thing.
It takes me 40 minutes. I don't want to take more time than the
Chairman.
In January of this year we began rolling out what I believe
is the cornerstone of my strategy to improve the disability
process. The Accelerated Electronic Disability system, (AeDib).
This new system is going to eliminate the current process of
mailing, locating and manually organizing paper folders. That
may not sound like much, but based on the content of the
analysis I did on the disability process when I became
Commissioner, we estimate it takes approximately 60 days to
mail folders back and forth from one office to another and that
it takes approximately 100 days to locate files at various
stages in the process. That may sound like a lot and it is a
lot but when you are staging, as we call it, over a million to
two million cases a year, it's understandable that it's
sometimes hard to find paper files.
Senator Voinovich. That was exactly the way the Ohio Bureau
of Workers' Comp was organized. We had files in boxes and they
would move the boxes around in the State and people would loose
the boxes. Are you going to put everything electronically right
from the beginning and make it a paperless system?
Ms. Barnhart. That's right. It affords us the opportunity
to revolutionize the way we process disability cases. We
specifically want to get to the issues in Cleveland. Now work
submitted from one place to another can be done with a push of
a button in terms of record review and that kind of thing and
preparation of the case. By moving to electronic processing, it
will reduce processing time by 25 percent.
And I'm pleased to tell you that Ohio is scheduled to have
this system starting to run in late September. As we move
ahead, I would be more than happy to keep you informed of our
progress. I'm pleased to say that we rolled out in Mississippi
on January 26, and, frankly, Mr. Chairman, this is a good
example of the approach that I have taken in general in the
agency dealing with the disability issue.
When I came into the agency, electronic disability was on
scheduled for 7 years from the time that I came in. I said, no,
that won't do. I have 5 years left in this term. I would like
to accomplish it during my term as Commissioner, going to the
point you made of starting things you have the opportunity to
actually complete.
And I asked my staff if they had all the resources they
needed and I promise you we sat down and talked about how long
will it take to begin implementation. We decided it would take
23 months, which was January of this year. We met that start
date in Mississippi. We are moving on to South Carolina and
gradually moving from one State to another and doing one region
at a time. We are currently on schedule and, in fact, we had a
couple States ask if we could come sooner to them than
originally planned. I think that's very significant because you
and I both know the grapevine among State directors, if AeDib
weren't working, other States wouldn't be interested in having
it get in sooner. We are working through the issues as they
arise. It's going very well and it's one of my top priorities.
In the meantime, while we have begun the electronic
disability process and announced a new approach, I am working
with all the stakeholders, as you put it, in order to finalize
that approach. I do think it is important to point out that
when I introduced my approach, I called it that because the
problems in this system are so immense that it really requires
an all encompassing perspective of the system working together
to come up with a solution. I really didn't want to have
something I developed and lay it out and say this is it and
it's all signed, sealed, and delivered. I laid down an approach
and I'm meeting with all the interested parties before
finalizing it.
Because of the time it will take to do that, I estimate
implementing a new approach probably couldn't happen until
October 2005 at the earliest. This is largely because it's
predicated on successful implementation of electronic
disability, which will take 18 months to roll out nationwide.
There are situations like the one here in Cleveland we had
to take short-term action. We had to take action to work as
quickly and expeditiously as we possibly could to address the
challenges faced by offices like Cleveland. To assist with the
workload one of the things we did is we brought back retired
administrative law judges and reemployed them on a part-time
basis.
Senator Voinovich. Were you able to bring them back and
have them work without----
Ms. Barnhart. There's like a senior ALJ program.
Senator Voinovich. They don't have to give up their
retirement, sort of like senior service, like a Federal judge?
Ms. Barnhart. Yes, I believe we used that. And you went
into great detail as to the delay of MSPB and no question that
has had a very detrimental effect. We have identified 50 judges
now coming on April 26 and three of those judges will be coming
to Cleveland June 1. From April 26 to June 1 they will be in
training at headquarters.
I have plans later this summer to bring on an additional 50
judges which means a hundred will be hired this year. You asked
me if we had enough ALJs. We don't, as you pointed out. We have
approximately a thousand now. I'm hiring a hundred. Ideally I
would like to add a hundred more. That is simply a function of
the budget situation. In addition to hiring ALJs and using----
Senator Voinovich. Are your administrative costs part of
mandatory spending or subject to----
Ms. Barnhart. Subject to the discretionary cap. It's not
clear whether the Appropriations Committee----
Senator Voinovich. You'll have to compete with other things
in the discretionary budget.
Ms. Barnhart. There's no question that has an effect. Last
year the President requested an 8.5 percent increase for SSA
and we ended up with a 5.4 percent increase. This year the
President requested 6.8 percent and we are hoping obviously to
come very close to getting that. When we look at the budget
situation, obviously there certainly is no guarantee. I think
it's significant that in both years when the budget situation
was certainly a pressing one, that the President requested for
SSA more than twice the percentage increase for the whole
Federal Government. It's a very significant increase relative
to other agencies. Not getting that 8.5 percent increase
obviously had an effect and if we don't get the 6.5 percent
increase it will have an effect.
You correctly pointed out the whole issue of being able to
hire staff because of the passed budget is very significant. We
basically had to put a curb on hiring until the appropriation
was passed because we didn't know what level of funding we were
going to have. Obviously I wasn't going to have to run a
furlough. We have been hiring judiciously. Just last Friday we
completed our opinion on the initial budget, what we call
budget scrub, since the appropriation was passed and so I will
be putting out more FTEs around the country for people to be
brought on board. But we have had to proceed in a judicious
manner until we were confident of the level of appropriation we
were going to receive.
Senator Voinovich. What I would like you to do, sorry for
interrupting your testimony, is maybe give me a one pager on
the disastrous effect of not passing the budget on time because
I'm trying to convince my colleagues, and so is Ted Stevens,
that we have to act before October 1.\1\ However, with the
Senate's schedule this year it's going to be difficult to do
it. Over the past few years, we have delayed passing the
appriations bills. I am afraid this year that we'll just delay,
delay and come back after the election with a big omnibus
appropriations bill. I would like to get it done before the end
of the year but it could end up in January.
---------------------------------------------------------------------------
\1\ ``Impact of Not Passing a Budget On Time,'' submitted by Ms.
Barnhart appears in the Appendix on page 147.
---------------------------------------------------------------------------
Ms. Barnhart. That's a disadvantage to the Federal agency.
You have a great interest in the Federal personnel system, and
obviously our best recruiting time is summer up to early fall
when the kids are just graduating from college. We have direct
hiring authority for outstanding scholars, who are students
with an overall GPA of 3.5 or higher. If we don't know what our
budget is going to be in January of the next year, then many of
those talented young people would have chosen to go other
places by the time we were able to offer them a job. So it's
very significant for us in particular.
In addition to adding to the ALJs, we have various hearing
offices in the Chicago region as well as some outside of the
region, that are assisting Cleveland with its work load. We
plan to transfer 5,200 cases from Cleveland to other hearing
offices. Over approximately 1,500 of those cases will go to our
Boston region, and approximately 3,500 have been transferred
within the Chicago region to other hearing offices.
I have also been moving toward using video conferences,
which gives us the capability of conducting hearings via video.
I think time and distance are very important factors,
particularly with a pared down ALJ core and hiring delays due
to the Ashdale case. Having the judges spend time traveling as
opposed to conducting hearings is not efficient and sometimes
it's much more convenient rather than traveling to that office
to go to a location that has video capability. This also makes
transfer of cases possible because claimants in Ohio don't have
to leave Ohio in order for their case to be heard by a judge
outside of Ohio.
We have also sent in a team of attorneys to supervise and
to screen pending cases to make a decision without a hearing,
so-called on-the-record decisions, and we have ALJs travel to
conduct hearings.
I want to assure you the hearing and appeal staff is
actively involved in the challenges of the Cleveland office.
Our Chief ALJ, David Washington, has been to Cleveland several
times meeting with management and heard a docket of cases
himself in May. In addition, with the VTC equipment a regional
chief judge in Chicago heard 45 cases from the Cleveland office
and my understanding is he plans to hear 45 more.
We have conducted onsite meetings with management offices
and hearing offices, and have examined a number of
administrative best practices. We expect these actions to
significantly reduce the time to get a decision. We know and
understand how important it is for the claimant and family
members who are waiting for a decision. Everyone at Social
Security realizes the folders on our desk represent parties.
These big tall folders aren't just files. They are people whose
lives are affected by the job we do and how well we do it.
These people are in dire need, and are counting on Social
Security for support. I assure you this is a responsibility no
SSA employee takes lightly, from teleservice representatives to
claim paralegals to attorneys and judges. Everyone at Social
Security is committed to providing the kind of service the
American people expect and desire.
I thank you for holding this hearing and I would be happy
to answer any questions and address any issues you would like
me to.
Senator Voinovich. Thank you very much. The first one I
wanted to address is the electronic disability folder and you
pretty well answered that in your opening statement. You think
you are going to wrap that up by October 2005?
Ms. Barnhart. I think AeDib will be implemented 18 months
from January--June of next year. My thought was if we are
improving a new process approach we need to not just implement
it but have 6 or 7 months experience with it. That's why I was
looking at no sooner of October 2005 for implementing a new
process.
Senator Voinovich. Ohio is June?
Ms. Barnhart. September of this year.
Senator Voinovich. And Ohio is part of Region V?
Ms. Barnhart. Yes, Region V.
Senator Voinovich. Your opening statement was very thorough
and you have done a good job answering my questions. In October
2003 the Social Security Advisory Board issued a report
entitled ``The Social Security Definition of Disability.'' Do
you think that we need to update that definition or would you
think it would be such a political hot potato that we ought not
to bother with it?
Ms. Barnhart. I didn't get into that. I have limited my
improvements to process improvements I could accomplish without
legislation. That's one thing I didn't mention. The new
approach I designed and presented can all be implemented with
regulation or administrative issuances and I thought that was
important because that means the process is something I could
actually accomplish and see through to its completion during my
term as Commissioner. My term expires in January 2007.
The definition of disability obviously would require
statutory change and I think it is certainly a very complicated
issue, one where people have diverse views about it.
GAO did place all of the Federal disability programs, as
you know, on the high risk area. And I have had several
conversations with David Walker, the controller general, about
that. The Federal disability programs were not a high risk area
from a management perspective. David was very clear about that
in our discussions. They were considered high-risk because the
disability programs as they currently exist were created in the
1950's and don't necessarily reflect what happened societally
over that time period.
With the passage of the ADA almost 11 years ago, attitudes
about people with disabilities and their abilities changed
dramatically. Back to work legislation that Congress passed in
1999 reflects----
Senator Voinovich. No one has taken advantage.
Ms. Barnhart. Some people are and we are working on that,
Senator. So I think there are a lot of things that contribute,
and will contribute to that debate and discussion on
disability. It's difficult but it definitely would be the next
step after improving the process to look at the definition of
disability if it were going to happen.
Senator Voinovich. One of the things I have been working
on, human capital practices and I have been working on that
since 1999. When we passed the Homeland Security Bill we were
able to add numerous flexibilities for all the Federal agencies
and Senator Akaka and I worked on that. For example, hiring,
allowing an agency to use a category rank in hiring instead of
the rule of three. Are you using categorical hiring instead of
the rule of three?
Ms. Barnhart. I don't know for certain. I would be happy to
find out and let you know, Senator.\1\
---------------------------------------------------------------------------
\1\ ``Category Hiring vs. Rule of Three,'' submitted by Ms.
Barnhart appears in the Appendix on page 148.
---------------------------------------------------------------------------
Senator Voinovich. How about voluntary attrition and
voluntary retirement? Are you using these flexibilities?
Ms. Barnhart. We have used early out, which is a voluntary
decision to leave, with great success. It's one of the things
that has helped the agency level out the big retirement wave.
We anticipated we will have lost over the next 7 years half of
the people in the agency. This is more than the number of
people who have retired in the last 10 years.
Senator Voinovich. American people are not aware of that. I
got involved in this in 1999 because I wanted to bring quality
management to the Federal Government. Currently, the Federal
Government is in the midst of a human capital crisis. Seventy
percent of the senior executives could retire next year if they
wanted to. You have a real challenge in terms of retirement. Do
you think you have thought about new flexibilities you might
need to make your job easier? I would ask you to share those
with me.
Ms. Barnhart. I haven't. I'm glad you asked me. One of the
things I mentioned is the outstanding scholar program for
direct hiring authority. In other words, when we identify a
talented young person at job fairs or recruiting efforts with
an overall Grade Point Average (GPA) of 3.5 or higher we are
allowed to directly hire that person. If that person had a 3.0
GPA, we should be allowed to directly hire him or her because
that's an accomplishment and certainly speaks to the
individual's ability. It also broadens the pool for us.
One of the things we really need to do is to encourage
young people to come in to the government, to become the
dedicated kind of employees that we are very fortunate to have.
Senator Voinovich. Do you have any contact with the
Partnership of Public Service that Max Stier is leading. They
have established a call to serve initiative and are working
with colleges and universities to build interest in Federal
service.
Ms. Barnhart. I haven't personally. The deputy for human
resources has. One of the other things that would be possible
would be speaking again to the budget situation. If we hire an
employee as a term or temporary employee, sometimes it's the
prudent thing to do. If you don't know what your budget is
going to be, it would obviously be helpful. When we find out we
are able to keep an individual then we can then make them
permanent. If they work very well as a temporary or term
employee to convert them to permanent status. We would have a
person who is already trained and instead of having to go
through all the steps to get there. Having that capability
would be important.
One place that is going to be important is the prescription
drug program. We are actually responsible for implementing part
of the program and people are going to come to us to apply for
their benefits just as they do for Medicare. To handle the
workload, we estimate we will be dealing with somewhere around
30 to 40 million people. We are going to have to bring a couple
thousand people on board. And then obviously once we get
through the people who are currently on the rolls, we'll have
an ongoing workload of a million and a half a year so we won't
need all these people. It would be wonderful knowing we were
not going to lose 5,000 people a year, that we could hire right
from that trained pool. Even if it's in prescription drugs,
they will have government experience and it would be wonderful
to use them as a hiring pool for us to replenish our ongoing
retirees. I have other things but won't take time now.
Senator Voinovich. I would be interested in having you put
them down for us. We are still trying to get David Walker's new
flexibilities through. And I will be at meetings in the
Pentagon to talk about what they are doing with the
nonuniformed employees in the Defense Department. But if there
are some things we can provide to help expedite your hiring
needs, I would like to hear about it and we'll be glad to work
on it.
Ms. Barnhart. I appreciate that. I will send something up
to your staff.
Senator Voinovich. Anything else you would like to share
with us?
Ms. Barnhart. I wanted to make a few points on a couple
things. I was taking notes. We implemented starter kits for
disability applicants that is going to be mailed out soon.
Senator Voinovich. What is that?
Ms. Barnhart. As in the rather eloquent letter from your
constituent, there's an enormous volume of paperwork. With the
starter kit that idea is someone applies for disability and
they'll receive this and it gives very simple instructions and
explains the kind of documents they need to have.
Senator Voinovich. Who put that together?
Ms. Barnhart. We did at Social Security.
Senator Voinovich. Did you hire a consultant or----
Ms. Barnhart. We did it inside. We worked with claims
representatives, teleservice representatives, and people in our
program service centers. When we have undertaken projects, my
approach has been actually to set up internal workgroups. For
example, the service delivery budget was one of my major
activities during my first year. It really has been key for all
the other things we have done. It budgets where we want to be
in 5 years and what are the resources it takes to get us there.
The service delivery budget was based on the desire to
eliminate backlogs, keep current with claims and special
workloads to make the technology investments we need and so
forth.
My approach is to bring in people from the district
offices, field office, program service centers located around
the country, and our hearing offices. It's very important to
have people who are doing the work be involved in fixing the
program because we sometimes form an idea in Washington or
Baltimore about what is causing a problem but we are not on the
ground working with it.
So people from all of the different parts of the agency
that needed to be involved with the starter kit were involved.
I'm hoping that it's going to have very positive results for
the claimants. What we have seen in the pilots we ran on the
starter kit was that the number of people who had higher
percentage of the documentation and the information when they
came to the interviews increased fairly dramatically. I have no
reason to believe that won't be the case. It's being rolled out
across the Nation.
You mentioned HPI, and I don't want to go back and relive
history I wasn't a part of. I was watching it play out from my
perspective on the Social Security Advisory Board. But I think
one of the points you made is really worth mentioning time and
time again.
It took us many years to get to this situation we are in
today. And I wish that I could wave a magic wand and get us out
of it tomorrow but that is not possible. I did start working on
these from the moment I was confirmed in November 2001. It was
actually one of the board members who signed that January
report you cited from the Social Security Advisory Board that
pointed out the problems with the disability system. And there
is no question that having had that experience on the board
helped position me better coming into the agency to understand
the really nitty-gritty the agency faced.
I want to take this opportunity to say Hal Daub, the
chairman, is testifying later today but the board continues to
be a wonderful place to bounce ideas and to hold my feet to the
fire to make sure we actually move ahead on a regular basis.
I think that pretty much covered the comments that I wanted
to make just in response to your opening comments except
finally to say I do appreciate your interest and your
dedication to helping solve this problem. There is no question
it's going to take the full support of everyone in Congress.
We need to get the budget. When people ask me what's the
one thing they can do to be helpful, to try to make sure we get
our budget. Last year the Senate voted the full amount as the
President requested. It was in Congress that we received a
reduction. So I'm hoping I can count again on the Senate to
vote 6.8 percent for Social Security. It is money put to good
use. I will point out the first full year's----
Senator Voinovich. What budget?
Ms. Barnhart. Fiscal year 2005. The people in this agency
work very hard and they care very much. I travel around quite a
bit to meet with employees in the agency and many are here
today. And I think it's important always when I testify on
these problems to separate the problems from the people in the
agency. What I would like to remind people is that, if the
people in the agency were not working as hard as they are and
as dedicated as they are to doing the job for the American
people, the backlogs would be even greater than they are. The
processing times would be longer than they are. I really
appreciate the job they are doing.
We need to get additional resources so we can provide the
kind of service that you and all your constituents expect. It's
definitely the kind of service we want to provide.
Senator Voinovich. I really appreciate you being here. I
have to tell you I'm very impressed with your testimony. I
think it's good that we have somebody who really understands
the problems of the agencies. I'm impressed with the fact you
are looking at this long term and you understand there are some
short term things you need to get done. I will monitor what you
said today and I will remind you. I will make a deal if Ohio
receives AeDib in June, I will send you a beautiful letter, if
not I will ask you what happened.
Ms. Barnhart. You got a deal. Thank you very much.
Senator Voinovich. Thank you very much.
Ms. Barnhart. I want to mention that I have previous
commitments and I have to leave immediately to go to the
airport. I did read the testimony of all of the other witnesses
today and I want to say I have worked very closely with some of
the witnesses coming up, Jim Hill and Kevin Dugan, I met Ms.
Margolius before while I was in Cleveland. I appreciate the
cooperative spirits and comments they made in their testimony.
I have staff staying to listen to the entire hearing and be
able to provide me with information.
Senator Voinovich. Thank you for being here today.
Our next panel is Hal Daub, Chairman of the Social Security
Advisory Board, former Congressman and Mayor of Omaha,
Nebraska. Robert Robertson is Director of Education, Workforce,
and Income Security at GAO who has been paying a great deal of
attention to what has been happening at the Social Security
Administration. Erik Williamson is Assistant Director at Ohio
Bureau of Disability Determination.
Mr. Daub, we'll start with you first. Thank you for coming
here.
TESTIMONY OF HON. HAL DAUB,\1\ CHAIRMAN, SOCIAL SECURITY
ADVISORY BOARD
Mr. Daub. Thank you very much. I want to thank you for this
very timely hearing. There are few of your colleagues who even
want to deal with this problem, it is complex, is it technical.
And in the process of preparing for this hearing I want to
thank you for the attentiveness of your staff who really did
dig deeply into the problems that the system does have and it
should be noted they have done a very good job and are prepared
now to deal with the issue and to support you.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Daub appears in the Appendix on
page 55.
---------------------------------------------------------------------------
Ten years ago, Congress created a bi-partisan Social
Security Advisory Board to recommend ways to improve the Social
Security programs. The Advisory Board travelled to every region
in the Nation. We have talked to those involved at every
level--both those who run the program and those who seek help
from it. We have found widespread consensus--with which we
agree--that this is a program with serious problems.
Disability decisions should be fair and consistent
throughout the country and at each level of adjudication. We
have found large and unexplained inconsistencies. The program
lacks a comprehensive quality management system to assure
careful and uniform application of the law. Improvements are
needed to develop and to apply the same standards as
objectively as possible at all levels of the decisionmaking. We
are very pleased to see the Commissioner take bold steps to
address these issues. To move ahead with major improvements in
technology is a leap the agency needs to better meet its
challenges. I urge you not to underestimate the scope of the
problem.
As your title for this hearing states, proposed process
changes and technology improvements can put the Social Security
Disability programs on the road to recovery. Traveling all the
way down that road will also require addressing needs such as
more--and more uniform--training. There must be a stronger
policy development capacity. Better human capital planning is
also essential. The crucial factor for really achieving these
goals is an adequate level of resources.
As the Board travelled around the country we were impressed
by the dedicated and hardworking employees in Social Security
offices and State disability determination services. They have
been increasing their productivity. The Commissioner has
proposed changes that will allow even greater improvements.
That will only happen if Congress provides sufficient resources
to handle the ever-growing caseload.
The agency has carefully developed a 5 year service
delivery budget for bringing the backlogs down to a manageable
level. But a vital increase in administrative funding is needed
and the President has endorsed a very modest increased funding
level. It's now up to Congress to decide whether to provide
those resources or opt for growing backlogs.
The Commissioner described today her immediate plans for
changes that she can quickly implement administratively. There
certainly also is room for Congress to consider legislative
improvements.
The Social Security Advisory Board, for example, has urged
Congress to consider changes such as creating a Social Security
court and changes in the hearing process itself.
Finally, there are larger issues that must be dealt with.
Social Security Disability program uses a definition of
disability that is a half century old. Many today feel that the
focus on ``inability to work'' does a disservice to impaired
individuals and we should find ways to change the program to
better support the desire of those individuals to continue
leading productive, self-sufficient lives.
The Board has recently issued a report on the definition of
disability and is sponsoring a forum on April 14 to further
explore this important issue. In fact, Senator, during recess
you are invited, and if not you, your staff, to join us for
that forum. It will be held on the Senate side.
Along with my full statement, I would like to submit for
the record a copy of a Social Security Advisory Board report
from October 2003.\1\ It is a report on the need for
fundamental changes in the disability programs and on the
definition of disability. All of our reports can be viewed on
the Social Security website,
www.socialsecurityadvisoryboard.gov.
---------------------------------------------------------------------------
\1\ The report entitled ``The Social Security Definition of
Disability,'' submitted by Mr. Daub with an attachment appears in the
Appendix on page 58.
---------------------------------------------------------------------------
Senator Voinovich. Mr. Robertson, I would like to say
before your testimony, I appreciate your tremendous cooperation
and help I received from the General Accounting Office. David
Walker and I have become very good friends over the years and I
just want you to carry back to your associates how much this
Senator appreciates the good work you are all doing at GAO.
TESTIMONY OF ROBERT E. ROBERTSON,\1\ DIRECTOR, EDUCATION,
WORKFORCE, AND INCOME SECURITY, U.S. GENERAL ACCOUNTING OFFICE
Mr. Robertson. Thank you very much. Let me begin, Mr.
Chairman, reiterating one of your opening comments. That is,
this is just a wonderful new building to have this hearing in.
I'm also very happy that you invited me here for a discussion
of what has to be one of SSA's most pressing challenges--to
produce timely, consistent, high quality decisions for people
who are applying for disability benefits.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Robertson appears in the Appendix
on page 107.
---------------------------------------------------------------------------
As you indicated earlier, the stakes are high. The two
programs we are talking about involve large numbers of people
and large amounts of Federal resources. I'm going to be making
four points this morning.
The first is not news but it's certainly worth stating.
That is, the SSA disability programs have in the past and
currently continue to experience problems in terms of producing
timely, consistent disability decisions. There is some good
news in the area in that SSA has made some short-term gains in
improving timeliness for part of its decisionmaking process.
The bad news is that, as the Commissioner has noted on previous
occasions, the SSA system has a long way to go. For example,
over the past 5 years the average time it takes to receive a
decision at the hearing level has increased by a month, from
316 to 344 days.
Second, beyond decision timeliness and consistency, the
disability program suffers from more fundamental problems
related to the basic concept that disability determinations are
based upon. It's been referred to in earlier statements. More
specifically the programs are grounded in an outdated concept
of disability that equates impairment with the inability to
work. Under this concept a person is determined to be totally
disabled or not. There is nothing in between. This all or
nothing idea really is not in synch with medical advances and
economic and social changes over the years that have resulted
in greater work opportunity for people with disabilities.
Further, employment assistance that could allow claimants to
stay in the workforce or return to work and potentially remain
off the disability rolls of Social Security are not offered
until after a claimant has gone through a lengthy determination
process to prove his or her inability to work. In short, the
basic design of the program does little to recognize improved
work opportunities for individuals with disabilities or to
foster a return-to-work philosophy.
As a brief aside here, the problems SSA faces with its
disability program both in terms of the management of the
program and the program's basic design are not unique. There
are other Federal disability programs that face the same types
of problems. Based on all of these concerns we placed the
Federal disability programs, including those at SSA, on our
high risk list in January 2003.
My third point is to simply recognize and acknowledge that
the Commissioner has placed a high priority on addressing
problems in the disability program and is developing a strategy
to improve the disability process. This has included expediting
the new electronic disability folder and automated case
processing system, proposing changes to the determination
processing system intended to produce more accurate decisions,
sooner, and testing concepts intended to foster a return to
work at all stages of the process.
My fourth and final point is to highlight what can only be
termed as some very daunting challenges that face the
Commissioner. Some of these have been mentioned earlier. More
specifically, improvements in the claims processing time, are
closely linked to successful implementation of the automated
electronic case processing system. However, we have recently
raised concerns about SSA's plan to accelerate this system's
deployment.
Additionally, we have reported that SSA faces human capital
problems that affect the very people who are critical to
implementing the proposed changes to the determination process.
In particular, we found that the 5,600 disability examiners
employed by the federally funded but State run DDSs, face high
turnover, recruiting and hiring difficulties and gaps in key
knowledge and skills. Finally, growing case loads can only
exacerbate the challenges SSA faces. Between 2002 and 2010 SSA
expects disability insurance roles to grow by about 35 percent.
Mr. Chairman, that concludes my prepared remarks. I would
be happy to answer questions at the appropriate time.
Senator Voinovich. Mr. Williamson.
TESTIMONY OF ERIK WILLIAMSON,\1\ ASSISTANT DIRECTOR, OHIO
BUREAU OF DISABILITY DETERMINATION
Mr. Williamson. Thank you, Mr. Chairman, for the invitation
to participate in this hearing on improving the backlog of
Social Security disability claims. The bureau is 100 percent
funded by SSA and each State has a comparable Disability
Determination Service.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Williamson appears in the
Appendix on page 121.
---------------------------------------------------------------------------
I would like to begin by briefly providing some background
and data regarding the Ohio DDS.
Ohio has the highest productivity rate of the country's 12
DDS programs and based on the number of cases received, Ohio
program is the fifth largest in the Nation.
During fiscal year 2003 Ohio produced over 183,285 Social
Security Disability claims. Since fiscal year 1996 the number
of claims processed by Ohio increased by 25 percent. During the
same period our staff increased by 6.8 percent. The bureau has
remained highly productive despite the disparity in resources
and we are committed to making the most of the resources
available to us. However, additional staffing commensurate with
our increasing caseloads will be critical to ensure that
services to the public are not severely impacted.
To prepare our workforce for the changes we see
approaching, we provided over 9,000 hours of training to staff
including vocational issues, medical issues and change
management and problem solving for our supervisors. To prepare
for the electronic disability folder, we improved our hiring
process to include a computer skills assessment and invested in
an online electronic learning program. We regularly provide
training on pertinent issues conducted by employees and medical
consultants who are strong in these particular areas. And we
created a mentoring program and job shadowing program. Training
strains our productivity, but we realize the impact to our
quality if we do not continue to provide relevant training. We
ask that adequate resources for training be provided to help us
to continuously improve the skills of our workforce.
The Accelerated Electronic Disability Process will
transition our business process into a totally paperless
environment. The Ohio DDS is scheduled for rollout later this
year.
We see great benefit in the increased efficiency of moving
to an electronic environment. We are also cognizant of the fact
there will be a significant learning curve during
implementation.
We are encouraged by our preparation today and believe it
will minimize the impact to our organization. However, we do
have a few concerns.
Other States in our region will not be in a position to
help us during the transition as they will also be implementing
the electronic folder. Ohio's caseload continues to grow at an
``unprecedented rate'' and we will need adequate staff to meet
the challenges this presents. It takes 2 years for a recently
hired adjudicator to complete training and work independently.
In order to process the increased workload, the Ohio DDS
budgeted to hired 80 employees during fiscal year 2004. It has
received authorization to hire 20 due to budget restrictions.
Perhaps most importantly, we need the process to become
fully electronic as soon as possible. The key to this issue is
the National Archives and Records Administration approving the
electronic file as the officially recognized document. We do
not have adequate resources to support both a paper and
electronic system indefinitely, which will affect our ability
to serve the public. We see tremendous advantage to this
project and hope that we can move to the electronic environment
quickly as possible.
We agree improvements can, and need to be made, in the
overall disability process. I will outline some of our concerns
on the Commissioner's approach.
In-line quality reviews. An in-line review process can
identify potential problems early in the process before the
claim is completed, saving time and resources for our claimants
and the DDS. We strive to prepare our claims for the next level
of review, and therefore, we have begun piloting the in-line
review concept in conjunction with our end-of-line quality
assurance efforts. We would add to Commissioner Barnhart's
proposal implementation of formal quality review for the field
offices to ensure accuracy of application forms and also for
the regional expert review units and reviewing officials.
We agree that centralized quality control would improve
consistency over the current regional disability quality branch
process. We are always willing to improve, and we would welcome
national input to help us with the overall process.
Additionally, as far as demonstration projects, we believe
there is tremendous potential in exploring new ways of doing
business. We are interesting in working in collaboration with
the Ohio Vocational Rehabilitation bureau to determine if early
intervention with SSDI applicants will help them to reenter the
workforce and achieve financial independence. We would like to
explore a temporary allowance project that will provide
immediate cash and medical benefits for a specified period to
applicants who are highly likely to benefit from aggressive
medical care and/or vocational rehabilitation. We see great
value in exploring these projects suggested by the Commissioner
and look forward to the opportunity to work with SSA on the
initiatives.
In closing, I would like to emphasize our desire to work
with internal and external components to improve the disability
process. We strongly support the transition to the electronic
environment and we are excited about the benefits it will bring
to our organization.
We are committed to providing the highest levels of public
service possible and making the best use of our existing
resources.
We ask for your consideration in providing us with adequate
funding to continue to offer the level of service expected of
our organization in light of the growing demands that we face.
Mr. Chairman, thank you for the opportunity to testify and
I would be happy to take any questions.
Senator Voinovich. One of the Commissioner's approaches
require State DDS examiners to fully document and explain the
basis for their determination. The Commissioner contends this
should result in more accurate decisions. In 2002 initial
denials across the country ranged from 34 to 73\1/2\ percent
which is an unbelievable difference. The Ohio DDS initial
denial rate was about 70 percent, which was the fifth highest
in the Nation.
To what extent do your examiners document and explain their
decision and do you feel that Commissioner's documentation
requirement will improve the overall disability process at the
State level.
Mr. Williamson. Our adjudicators document their decisions
in a PDN or personalize denial notice that goes to the
claimant. The difference between what the Commissioner said
would go into greater detail and perhaps be a far more
technical audience to explain essentially how we got where we
did in terms of the decision.
We think that the centralized quality review that she's
proposed would go a long way to adding consistency to the
States. So I don't know if that answers your question.
Senator Voinovich. Well, I mean it seems to me that more
documentation requirements will cause more work or do you think
that a standardized form will bring about a more accurate
determination in regards to an individual and down the road
result in less requests for reconsideration and appeals to the
judges?
Mr. Williamson. Frankly, I have to believe it would improve
the process. My personal opinion and position of the agency is,
I think, it would take more resources, it would take longer to
do that. I think we have to decide that it may be an investment
we need to make.
Also in the Commissioner's plan she did indicate that
resources would be redirected to DDS in terms of taking away
some of the quick decisions and taking away the reconsideration
step that would allow our staff more time to do that inter-
department analysis.
Mr. Daub. I look at it from a perspective that on the front
end a little more time will be required and will be
appropriately invested for a more thorough examination of that
citizen's disability request. Then, as a result of that, a
quicker decision can be made and the benefits will be delivered
quicker. And then those claims that take a little more time
will be so thoroughly documented that they won't be in the
queue for a year and a half waiting for the administrative law
judge process after reconsideration. If you look at the total
process it will take more time and resources on the front end,
but really shorten the appeal process dramatically.
Senator Voinovich. One of the things we did with our
workers' comp system was we had a procedure with these boards
of revision--from a hearing it would go to the board of
revision and we eliminated some of the procedural steps to
streamline the process. Hearing people come in rather than
doing it the way we were doing it in the past and it expedited
things for the claimants.
Has anybody looked at it, GAO looked at it, does this
system make sense? Do you believe that having the States do the
initial disability determination is the best way to get the job
done? Would they be better decided by the Federal Government
instead of the State? In other words, your retirement Mr.
Williamson, you are part of the whole Public Employee
Retirement System. Has anybody looked at that whole process
procedurally?
Mr. Robertson. Two points to make. The first one is that
the decision itself, the disability determination itself, is a
very complex, difficult decision to make. So you start with
that and then you put that decision in a process that is, as
Hal noted earlier, very fragmented--it involves 1,300 field
officers, 50 some odd DDS's, and 140 hearing offices. That
makes the determination process even more difficult.
Senator Voinovich. Do you think the Commissioner, according
to the information I have, would replace the State's
reconsideration process with new SSA reviewing initiative?
Mr. Robertson. I think the Commissioner is pushing for
process improvements and looking at the process in its
entirety. We haven't seen the details on a lot of the design
yet and, of course, the devil is in the details. But much of
what she is talking about in general makes sense.
Mr. Daub. There are two changes, Mr. Chairman, that I don't
think the Commissioner decided yet, but her approach to the
process is looking at eliminating reconsideration and looking
at the administrative law judge stage and subsequent appeal
review being streamlined. It is amazing how many days it takes
for a determination and then the appeals, as you point out.
Interesting things are happening. In recessionary times,
unemployment rises and disability claims tend to rise. The next
thing that is happrning is the aging of our society. The baby
boomers are coming in here. Disability tracks age; the older
you get, the more disability claims come into the system.
This movement into electronic files is absolutely critical.
The whole reform process is predicated upon the electronic
file. That has to work first. And assuming that is on track and
resources are in place for that, the streamlining of the
administrative review can occur. And the Commissioner has not
decided yet which pieces will be taken out of the system but at
least there are two that should cut a lot of processing time
for the applicant.
Senator Voinovich. It gets back to the issue of, Mr.
Robertson, do you think Social Security has the staffing
capacity at the Federal level to meet the challenges you
discussed?
One of the things, if I'm not mistaken, in the background
material I read was that State disability determination systems
are having human capital challenges. I hope that the Social
Security Adminstration will work to alleviate these challenges.
That is, why we elevated human capital as officers in each of
the agencies and it's very important that they turn their
reports in every year.
In terms of SSA's last GPRA report we didn't think there
was enough attention made to the staff capacity that would be
needed to achieve the agency's goals. Mr. Robertson, I would
like you to comment on that.
Mr. Robertson. As you know, Mr. Chairman, SSA is in the
process of really transforming itself. Its like taking a big
ocean liner and trying to make it change directions. As you
know, we have examined other organizations that have
successfully transformed their operations. The absolute key to
their success was the human capital aspect of their plans. From
Social Security's standpoint, they have to have a strong human
capital management plan. However, when we looked at the DDS
part of it recently we saw some things lacking.
Mr. Daub. The comment was made earlier that it takes about
2 years to train a person to make disability determinations and
learn the medical listings. It's a very complex process. And
that is just to recruit and then to retain that person in the
State process long enough to get them trained. Now we are going
to put them through a process of getting on-line and
understanding that whole new complicated process. We see a
turnover factor on human capital in this agency of about 13
percent. It's a resource issue. The 5-year budget plan that the
Commissioner developed would have eliminated backlogs. That
budget proposal did not occur but they'll do their very best,
I'm sure, to try to handle that increasing case load. It is
clearly a resource and training commitment that has to be made
to turn this ship around.
Senator Voinovich. Mr. Williamson, one of the things that
the Commissioner mentioned was the fact that those States, for
example, Mississippi have gone forward and implemented the
program and seems to be happy about it. And the word at least
around the country is it's a good system. First, do you hear
good things about the system and, second, you mentioned
something about training and I would like to know what you are
doing in order to train your people so they can use the new
system when it comes in. I know that's a lot of work because
when I was county auditor we went from paper files to
electronic files and frankly we had to retrain employees and
some of them we weren't able to retrain. They weren't able to
do it. This is a whole business of computer familiarity and all
of the other tasks that are necessary. Also, from what I read
about your operation I understand you've had some turnover
problems.
Let's put it this way, are your employees going to be
trained enough when AeDib reaches Ohio? Are you going to be
able to handle this system? Do you have training going on, do
you have the number of people you need and so on?
Mr. Williamson. Thank you, Mr. Chairman. We have been doing
significant training. We started E-learning to get everyone's
skills up, computer skills assessment. We have training that
Social Security provided us on what employees can expect in the
new environment. We have a technological issue of getting all
the equipment in and working, and working with our Legacy
software and to make sure it's user friendly and working
properly for our staff.
We named one of our managers as project manager to oversee
it from start to finish. And as I said, we have some concerns
but we are very enthusiastic about getting the electronic
folder in. And think it's going to provide significant
benefits. While we are concerned somewhat about training, we
think if we have the resources and staff we'll be able to meet
that challenge.
Senator Voinovich. You said two big ifs, resources and
staff. What is the likelihood you are going to have resources
and staff.
Mr. Williamson. I think we'll get some of the staff we need
and I think we'll get a fair number of the resources. Frankly,
it remains to be seen. Our budgets aren't all final in terms of
how much the DDS will get as it rolls out. We have been assured
as we roll out with Levy Corporation, we'll have their full
support in bringing it on and teaching our staff how to
physically use it.
Senator Voinovich. I would like to have something in
writing from you about that, where you are, what you think you
need, what your resources are, and what is the probability you
are going to be able to achieve what it is you are supposed to.
And also is the amount of the money that you are getting from
the Federal Government adequate enough to hire staff. For
example, how about your classification and your salary, are
they competitive enough you can bring people?
Mr. Williamson. I think they are relatively competitive.
Senator Voinovich. Why do you have the turnover you have?
Mr. Williamson. Our turnover is not quite as high as many
DDS experience. For fiscal year 2002 we had 6.7 percent
attrition. If you took our retirees, it's 3.48 percent. I don't
think we are having quite the problem with that. Ninety-two
percent of our workforce has 20 years experience or less. Where
we are seeing the growing pains, we have approximately 54
percent of our workforce with less than 5 years experience.
Making sure they have adequate training is one of our
primary goals. Interestingly, though, as far as rolling out
electronic folder the people just from college are familiar
with the electronic environment and aren't struggling with that
transition at all.
Senator Voinovich. What about the ones that weren't doing
it?
Mr. Williamson. They are responding very well to our
training. Like I said, we put in our electronic learning. We
asked all staff to complete a certain amount of courses by May
before the folder comes and they are responding quite well. A
lot of people are saying, gee, I wish I tried this sooner. This
isn't as bad as I thought it was. We had a lot of electronic
forms up on our system and use the E-View system so we can look
at the same application on the screen that the field office
does. In a sense we implemented several parts of what we'll be
doing and we feel relatively well prepared for both our future
staff and existing staff to make that transition.
Senator Voinovich. Did you teach Q-Step?
Mr. Williamson. No, sir.
Senator Voinovich. How long have you been with the agency?
Mr. Williamson. Fourteen years.
Senator Voinovich. When we started quality service through
partnership you weren't part of that program?
Mr. Williamson. No, sir.
Senator Voinovich. Are you familiar with it at all?
Mr. Williamson. I'm not.
Senator Voinovich. We'll send you some stuff on it.
Mr. Daub. The Commissioner also emphasized in-line quality
review from the beginning to the end. That is a real need as
you implement a new system. I take it you took a similar
approach, in your work as governor. I think the reviewing
officer and the closing of the record at the administrative law
judge level will help. The number of days that it takes once a
denial is turned into an appeal is somewhat misleading because
if you don't like the judge you are assigned and you know
there's another judge that's a little easier or a little more
willing to overturn a decision, your attorney might just be
busy that day and take a continuance or postpone the case in
hopes that another judge will hear it. Forum shopping to a
degree does occur. I think GAO discovered this.
Also, if the record is kept open as it has been up to now,
you can hold back information and wait to see how you are doing
on overturning the disability determination from the beginning
all the way to the final review. What that does is simply adds
more days in the averaging as that case stays in the system
longer. With the closing of the record and the other changes
the Commissioner is thinking about we are going to get, I
think, better due process to the claimants who rightfully
should have a chance for an appeal and rightfully have their
case reconsidered. It's going to work a lot more efficiently
for the claimants.
Senator Voinovich. We are going to have people representing
claimants in the next panel. I would like to hear what their
reaction is.
Mr. Daub. It's going to take some time to get the system
going. We have been without all the judges that we needed to do
some of the work for a long, long time. And then, as you know,
the Congress just passed the drug bill which is also going to
change the situation--about 50 to 70 judges are going to leave
SSA and go over to HHS to handle Medicare appeals. That will
make the SSA system short again a number of judges. Again it is
a resource issue and funding issue.
Senator Voinovich. Seems to me that at this stage in the
game, and I am going to have a hearing on April 8 next month on
the new prescription drug program. I'm bringing HHS in to talk
to about whether they have the capacity to implement the new
Medicare modernization program and prescription drug program. I
think it's important that we find out about this portion of it
because one of the things we are trying to do is to make sure
we have enough employees focusing on enforcement. As we are
looking through and comparing all the employees in Homeland
Security we may find large discrepancy in salaries in relation
to enforcement positions at other agencies. We have people
outside of DHS in the other agencies and we don't want to see
employees flowing from one agency to the other because they are
going to get a big bump in their salary.
What you are saying to us today is you are concerned that
some of your judges are going to be moved out of SSA over to
Medicare to deal with their appeals process?
Mr. Daub. That's a major situation. Somebody ought to
relook at that whole big picture in terms of capacity.
Senator Voinovich. That gets back to you, Mr. Robertson.
How do you feel? You looked at this thing. Where are they in
terms of capacity to do this?
Mr. Robertson. I know what I would like to say. Part of me
would like to sit here and say we have a big resource concern.
When we did our work on the DDS human capital side of things,
many of the DDS directors we talked with noted that there are
some resource constraints. The problem I would have with saying
there's a resource problem, however, is that, in that same
review, we found that the planning wasn't there. So, it's hard
to say there's definitely a resource problem when we haven't
seen the plan either at the DDS level or Social Security level.
That's where we come out on that question.
Senator Voinovich. The point is, that the plan has not been
finalized and it's difficult for you to determine if they have
adequate staffing.
Mr. Robertson. Yes.
Senator Voinovich. I'm interested in that and as chairman
of the Advisory Board you ought to be also. I would like to
know when you think that is going to come to be.
Mr. Daub. Your mandate says the conversion has to be by
October 2005. So it's between now and then that the details of
the plan have to be finalized.
Senator Voinovich. In the meantime the Medicare thing is
going in 2006.
Mr. Daub. You are going to have a hearing on Part D. It's
going to be interesting to see what you discover.
Senator Voinovich. We are having it because you are
concerned.
Mr. Daub. Congress has provided funding for SSA to hire the
people needed to implement the new Part D. Once that system,
Part D, is implemented, there's going to be a real pool of
talent that was hired to accomplish that initial start up for
Medicare eligible individuals. It would be a shame to have them
hired only temporarily and then to leave the system again
short. We need to look at this as a human resources potential.
Senator Voinovich. To see the opportunity that is there.
Mr. Daub. It can be very helpful. Some of those folks may
be available for State DDS work, too, which would be terrific.
Senator Voinovich. Probably what we ought to do is call a
meeting with OPM and Clay Johnson and get some folks together
and talk about that to see if there is some way to expedite it
within the framework of the current law or whether we need some
changes in the law to have it.
Mr. Daub. Along with electronic folders and with better
planning for resource allocation, we also need judges to be
better trained and continuously trained on medical evidence
because medicine changes. Getting all of this in the system
would eliminate the need to hire more people over time. It
would take a couple or 3 years to accomplish all of this.
Senator Voinovich. One thing I would like to mention to
you, Mr. Williamson, is the issue of the quality of people that
you have working. You have medical doctors on your staff. There
has been some controversy about your head doctor because he
lost his ability to treat patients. That's been pretty well
vetted. But my concern, I don't know whether you recognize it
or not, you are going to have less doctors because we are
losing doctors right and left today giving up the practice of
medicine because of malpractice lawsuits, premiums are going
sky high. And, frankly, we are starting to see that in terms of
medical school. It's having an impact on the number of people
that want to go into medicine.
So if you look at agencies that need M.D.'s to review the
disability cases, we may have a human capital crisis in that
area.
Mr. Williamson. It's definitely a concern for us. We need
to attract quality physicians and psychologists to do what is a
very unprecedented growing rate of claims. So certainly that's
a concern of ours and we may need to review what resources we
may need.
Senator Voinovich. Are you seeing anything like that now in
terms of your situation?
Mr. Williamson. We have been retaining fairly well. We have
92 doctors or M.D.'s and psychologists. And we, for the most
part, have been retaining them without a lot of difficulty. But
attracting new candidates has been an issue for us.
Mr. Daub. Are they contracted mostly or employees?
Mr. Williamson. All consultants.
Mr. Daub. Some States are mixed--employed and contracted.
Senator Voinovich. I read an article about it and about
this particular individual, why don't you share that because
there may be people in the news media that want to get your
statement in regard to that.
Mr. Williamson. I would say first, Dr. Cantor does hold a
medical license. He has more than 20 years experience with our
organization. He's very knowledgeable of the SSA program and is
well respected and he meets the position requirements set forth
by SSA. So at this point we are very comfortable with him
continuing in that position.
Senator Voinovich. The fact he lost his ability to treat
patients because he was administering drugs to his family and
friends doesn't give you any pause.
Mr. Williamson. He did lose his ability to prescribe
medication, that is true. Although that does not interfere with
his ability to do his duties with our organization.
Senator Voinovich. And you are sure that you monitored him
so he's no longer----
Mr. Williamson. Yes, sir.
Senator Voinovich. You feel very confident of that?
Mr. Williamson. Yes, sir.
Senator Voinovich. From your perspective he's a competent
individual doing the job he's doing but he's not able to
practice medicine is not a concern to you, or see patients?
Mr. Williamson. I understand. Many of our physicians do not
practice medicine. Many of them are retired or for one reason
or another not practicing, including their medical insurance
premiums.
Senator Voinovich. You may be getting more.
Mr. Williamson. We may have the opposite happen because of
that, because they don't need that coverage with us. My answer
would be I'm comfortable with him and we did monitor his work.
Mr. Daub. There's another point you raised serving the
rural populations of a State, and there the medical physician
shortage that you are talking about is very serious. The
Commissioner, in thinking through how to make good decisions at
the in-take level is particularly interested in a regional kind
of medical unit. It won't take away anybody's job currently
working in the process, but to have regional specialists
available to consult, particularly in a smaller community, can
help expedite a person's application. GAO pointed this out in a
number of studies, and it can be very important to a State like
this for the determination folks to have the ability to pick up
the phone or to video conference with physician subspecialists.
Senator Voinovich. There is lot of that going on today in
terms of video conferencing and diagnosis in rural areas
because of lack of physicians that are in those areas.
Mr. Robertson. Those regional units will help with the
consistency of the decisions, too.
Senator Voinovich. Has there been any study made as to why
you have this large discrepancy in initial disability
determinations. The range falls between 79 percent rejection
and 35 percent? How do you reconcile that?
Mr. Daub. It's very hard to explain. That's probably the
most baffling part of the system. I think that it gets down to
a training issue. In the system of administrative law judges
there isn't any published precedent from one State to another
as to how a particular diagnosis would be looked at on appeal.
So from different parts of the country different judges and
different doctors look at each human being differently as a
separate unique case. I'm not sure we should get fully alarmed
by the inconsistency but it's enough that I think part of the
answer is in better training, and I said it a minute ago, more
and regular medical training for ALJs.
Senator Voinovich. How about DDS?
Mr. Daub. I think if the judges had the same training the
DDS had, you would see a lot more uniformity.
Senator Voinovich. But the fact is the rejection rate on
the State level is marked. Ohio has one the highest rejection
rates, don't we?
Mr. Williamson. Yes, sir.
Senator Voinovich. Why are we rejecting more people than
other States?
Mr. Williamson. Mr. Chairman, we looked at several facts of
whether we can draw comparison with unemployment rates,
demographics or downturns in the economy and we have not been
able to draw a direct nexus to those factors. We have to rely
on quality statistics from Social Security Administration to
make sure we are following rules and regulations and so far our
quality has been very good.
I do think, as Mr. Daub said, the Commissioner's approach
to centralized quality review would be a great benefit to all
the States in terms of providing consistency.
Senator Voinovich. It's important somebody from Indiana and
somebody from Ohio, Indiana says OK and Ohio rejected, why is
one approved and why is one not approved, I think that in terms
of fairness to individuals.
Mr. Daub. One of the biggest difficulties is the review of
mental illness disability. Physical disabilities, there's a lot
more uniformity but it's less clear in the attempt to determine
that someone is mentally unable to continue to perform the work
they did do. And, of course, with medications today and other
improvements there's so many more ways somebody can go back to
work and be productive. But the definition of disability
doesn't take that into account. And so everybody is working
really hard to make sure you give the benefit of the doubt to
that individual. I think that mental impairment in the most
difficult one.
Senator Voinovich. What percentage of the cases are for
mental impairment.
Mr. Daub. It's over half, well over half of disability
claims involve mental issues.
Senator Voinovich. I would like to see a breakdown of where
the claims are coming from and I would like to have somebody
dissect the thing a little bit and come back with some real
thoughts. What are you doing with it, is anybody looking at
this and if people who claim to have mental impairments--how
are those being decided. The issue becomes quality of the
individual that is reviewing their case and if one is reviewed
and the situation can be remedied with the use of medication,
you are saying that that doesn't count in terms of whether
somebody should be disabled or not.
Mr. Daub. It is a very difficult thing to look at
aggressively with a degenerative circumstance in an individual
and to know whether at some point that person will be able to
work or not. There are so many people making judgments. To move
that case along through the system you don't get time to check
to see, if we prescribe medication, will that person be able in
6 months to go back to their job which they lost in the
meantime. It's a difficult process.
Senator Voinovich. It's one that would be worthwhile if you
are talking about half the cases we are seeing such a dramatic
change today in terms of mental illness. That is one I think we
should really look after.
Mr. Daub. Looking at other countries, Scandinavian
countries, Netherlands, you are seeing, I want to put this in a
tactful way as I can, the process of disability is becoming so
easy, with all due respect, that it's become a much better way
to take early retirement until you are 62 or 65. In our system
it's not to say we have malingerers or people are cheating. I
don't know that at all.
The process makes so many judgments along the way that in
the process of appealing, if you appeal long enough, you are
going to win. And some of it is due to degeneration in the
claimant's condition over the 2 or 3 years that the case stays
in the system. Rather than pointing to any fault I think it's
time in our modern society to take a look at how we define
disability.
Senator Voinovich. I want to thank you very much for coming
today. It's been very instructive today. I appreciate you
getting back to me.
I'm going to recess the hearing for 5 minutes.
[Recess.]
Senator Voinovich. The hearing will come to order. We have
our next panel and we are fortunate to have the Hon. Kevin
Dugan, administrative law judge in Charlotte, North Carolina,
collective vice president of the Association of Administrative
Law Judges. I take it that all your judges belong to this, is
that right?
And James Hill, Attorney Advisor in the Cleveland office of
hearing and appeals. He's also President of Chapter 224 of the
National Treasury Employees Union 224 and we are here to hear
from you. I'm interested in hearing professionals and members
of unions, and Colleen Kelly is a great friend of mine and has
been very helpful to us in all of the work that we have done in
human capital, not necessarily agreeing with all of it but
she's been very constructive. I want you to know as a member of
her union she's an outstanding individual trying to find a way
to make things work.
Marcia Margolius who is an attorney with Brown & Margolius
in Cleveland and I saw a couple people shaking their heads
during some of the testimony and hopefully she will give us a
perspective of the individual that represents the clients who
go through this whole system.
We'll begin the testimony with you, Mr. Dugan.
TESTIMONY OF HON. D. KEVIN DUGAN,\1\ VICE PRESIDENT,
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES
Mr. Dugan. Thank you, Senator. Thank you for the
opportunity to testify today. This statement is presented in my
capacity as Vice President of the Association of Administrative
Law Judges (AALJ). It represents the professional interest of
900 administrative law judges in the Department of Health and
Human Services where the new Medicare is going, by the way.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Dugan with an attachment appears
in the Appendix on page 126.
---------------------------------------------------------------------------
One of the stated purposes of the AALJ is to promote and
preserve the claimants right to full due process hearings. As
such our association has spent a substantial amount of time and
resources to create a system that will deliver fair and
expeditious adjudications for the American public.
The SSA administrative hearing system began in 1940 with 12
referees and it has grown to the largest adjudicative system in
America. Along with the growth in size, there has been a growth
in complexity. Unfortunately SSA has been unable to adequately
address the difficulties that are inherent in the high volume
but complex area of law. We are of the strong opinion that
changes must be made if we want an efficient and fair
adjudicative system.
The Association of Administrative Law Judges believes the
plan put forth by Commissioner Barnhart promises lasting and
meaningful changes that will produce high quality decisions in
an expeditious manner. We applaud her for her bold and
courageous leadership.
The plan makes many changes to the current system but
promise to preserve the right of the claimant to a due process
hearing. The changes that are proposed are predicated on the
premise that the way to increase speed of adjudication is to
first improve the quality. This is a stark contrast to many
past initiatives.
We agree that improving quality at the beginning of the
adjudicative system confers benefits throughout the system as
the cases move forward. If cases are fully developed and fairly
evaluated from the beginning some cases will be paid more
quickly and the more difficult cases will be properly prepared
and presented for hearing, this will lead to more consistency
at all levels of adjudication.
As Commissioner Barnhart noted, however, the changes,
technological changes she needs to do this will not be
completed before October 2005. Meanwhile we must acknowledge
that the pending backlog demands our best efforts with the
tools we have now.
The consensus is that the past initiative HPI failed to
such a degree it caused an immediate decrease in cases decided
in OHA offices here and nationwide. Fortunately, the best
managers in local and regional offices were able to adapt and,
to some degree, lessen the negative impact of HPI. Those
offices are often characterized by a cooperative atmosphere
which utilizes the skills and resources of the judges and
staff. Other offices, however, were not able to soften that
negative impact and they failed to a greater degree. We believe
such offices should look to the practices used by the more
successful managers.
The AALJ has long been concerned about the growing backlog
in Cleveland, as well as throughout the region. We have made
informal suggestions and more recently put together a more
comprehensive plan for the consideration of SSA managers. A
copy of that letter is attached to my testimony.\1\ Our
suggestions include reorganizing staff to providing additional
management training and increasing resources. Until OHA returns
to a modified unit staffing system, however, we will not be
able to fully and effectively utilize your current resources.
---------------------------------------------------------------------------
\1\ The letter referred to appears in the Appendix on page 149.
---------------------------------------------------------------------------
We have also suggested changes in case practices that could
quickly increase case dispositions without additional
resources. Some of the suggestions include using prehearing
orders that fully involve the claimant bar in the process. This
would shift some of the case preparation from the overworked
staff. On a national level we have urged the adoption of rules
of practice and procedure and the ABA Ethical Code of Conduct
for administrative law judges.
The plan presented by Commissioner Barnhart promises to
transform the disability system into an efficient and fair
system and we ask that you and the rest of your Subcommittee to
fully support her efforts, her budgets requirements. The
association will continue to work on improving the hearing
process for the benefit of the American people.
Thank you again, Senator, and I am happy to answer any
questions.
Senator Voinovich. Thank you very much. I appreciate you
coming here today. Mr. Hill.
TESTIMONY OF JAMES A. HILL,\1\ PRESIDENT, CHAPTER 224, NATIONAL
TREASURY EMPLOYEES UNION, OFFICE OF HEARINGS AND APPEALS,
SOCIAL SECURITY ADMINISTRATION
Mr. Hill. Good morning. My name is James Hill. I'm the
Attorney Advisor at the Cleveland hearing office for over 21
years. I'm also the President of Chapter 224 of the National
Treasury Employees Union (NTEU) that represents attorney
advisors and other staff members in the approximately 110 OHA
hearing and regional offices across the United States. I thank
you for inviting me to testify at this hearing.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Hill appears in the Appendix on
page 133.
---------------------------------------------------------------------------
The disability backlog problem at OHA is neither recent nor
unique to the Cleveland Hearing Office. From the mid-1990s the
backlog grew to approximately 550,000 cases nationally and WITH
over 9,000 cases in Cleveland. Several highly focused
initiatives, most notably the senior attorney program, produced
over 220,000 fully favorable on the record decisions with an
average processing time of just over 100 days. By October 1999
it reduced the number of cases pending to 311,000 nationally
and slightly over 4,000 cases in Cleveland. I point out
currently there are 625,000 cases pending nationally and over
8,500 in Cleveland.
Since that time a number of factors including the
termination of the senior attorney program, increased receipts,
inadequate staffing and implementation of the disastrous
Hearing Process Improvement plan have resulted in the record
number of cases currently pending. The sheer mass of cases
pending has raised the processing time to nearly 400 days
nationally and over 550 days in Cleveland. This is simply
unacceptable.
There is no question that the current disability system is
fundamentally flawed and wide ranging systemic changes are
necessary.
Commissioner Barnhart and Deputy Commissioner Martin Gerry
conducted a truly objective review of the entire disability
system accurately identifying its strengths and weaknesses. I
believe that for the first time a senior SSA official truly
understands the strengths and efficiencies of the current
system. This insight combined with the Commissioner's
commitment to create a process that serves the needs of the
public rather than the dictates of the bureaucracy has lead her
to propose a plan for implementing fundamental process changes
that will provide a level of service of which we can all be
proud.
The plan is comprehensive and involves extensive changes
such as replacement of paper folders with electronic folders,
elimination of the reconsideration determination, elimination
of the appeals counsel, a completely revamped quality assurance
system and creation of a reviewing official process to provide
an intermediary between the State agency and administrative law
judges.
I am convinced this plan, if implemented, will result in
efficient, effective and most importantly a fair adjudicatory
reprocess.
As good as this plan is, it does not provide immediate
reprieve for the Cleveland office. SSA has implemented some
temporary measures that are limited in scope and have little
effect nationally or in the Cleveland office.
The Cleveland office faces an emergency and fortunately
actions have been taken to significantly improve the level of
public service. Three additional ALJs will shortly be assigned
to the Cleveland hearing office. Additionally during the past
several months over 4,000 Cleveland cases have been transferred
to ALJs at other hearing offices for hearings held in Cleveland
in person or via video teleconferencing. More could be done.
But it is essential that SSA be provided with the funding
necessary to promote current and long-term initiatives to
improve the level of service.
However, not every improvement is extensive. Revising the
senior attorney program would during the next year result in
over 60,000 fully favorable on the record decisions without a
significant drain on SSA resources. The Social Security
Administration and its employees recognize that significant
improvement in the disability must be made if the public is to
receive the level of service it has every right to expect.
I know you, Mr. Chairman and Commissioner Barnhart are
committed to the SSA disability system on a short-term and
long-term basis, as well as providing resources necessary to
the Cleveland hearing office to provide the wealth of services
that the people of this community expect. Thank you.
Senator Voinovich. Ms. Margolius.
TESTIMONY OF MARCIA MARGOLIUS, ESQ.,\1\ BROWN AND MARGOLIUS,
L.P.A.
Ms. Margolius. First, I would like to thank you, Senator
Voinovich, for initiating this field hearing to address delays
in the Social Security claims.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Margolius appears in the Appendix
on page 144.
---------------------------------------------------------------------------
Under the current system people with severe disabilities
are forced to wait years for an ALJ decision. These delays are
harmful to the individual, undermine public confidence in the
program and damage the integrity of the whole system. As a
disability advocate I support any efforts and initiatives to
make the process more efficient. However, any changes must
ensure fairness and protect the rights of people with
disabilities.
The Commissioner's plan includes several changes at the
front end of the program that can have an immediate impact on
new applicants and improve backlogs and delays later. Hopefully
this will move forward at all possible speed and I hope it is
up and operational by June 2005. However, like our Federal
court system there needs to be a read-only online access to the
program for the attorneys so that all parties involved can have
the information and be involved in the processing of the
claims. The current proposal does not allow such read-only
online access that has been provided, for example, in the
Federal courts.
The position of the reviewing officer is very promising as
it provides that necessary point person to help expedite
critical cases. However, an appeal from the reviewing official
to the ALJ which is currently proposed is a duplication in the
reconsideration level. Beyond duplicating a step, the way the
Commissioner has proposed to rid the system of it will be
confusing to the public. The way the program is proposed
currently there will be an appeal from the initial level to the
reviewing official and then again to the administrative law
judge. However there should be one appeal from the initial
level to both the reviewing official and ALJ together.
As currently proposed the reviewing official and
administrative law judge will be in the same office of hearings
and appeals. This is going to be very misleading to the public
and people will mistakenly give up appeal rights.
Senator Voinovich. Will you repeat that? I'm not sure I
understand.
Ms. Margolius. The way the program is now, the reviewing
official and administrative law judges will be housed in the
same office of hearings and appeals. The Commissioner is
proposing if a claimant is denied initially, they will be
appealed to a reviewing official and if a favorable decision
isn't issued you appeal from the reviewing official to the----
Senator Voinovich. Eliminate the reconsideration at the
local and go right to a reviewing official. Would that
reviewing official be working in the State operation or for the
Social Security Administration?
Ms. Margolius. For the Social Security Administration.
Senator Voinovich. That should help to alleviate some of
the burden on the State offices in terms of the
reconsideration.
Ms. Margolius. At the State office. But to be true to the
position of reviewing official one appeal from the initial
level should get the individual to the SSA level rather than
making them go through two appeals. It's duplicating.
Senator Voinovich. The State does it, State denies, goes to
the reviewing official and from reviewing goes to a judge.
Ms. Margolius. But you have to appeal from the reviewing
official to the judge. You are shifting focus from the State to
Federal but still making the claimant undergo as many hurdles.
Senator Voinovich. What would you do, eliminate the
reviewing official?
Ms. Margolius. Appeal of the initial decision goes to the
Federal branch of the Social Security Administration, let the
reviewing official approve it or make a recommendation to the
judge and then have it go right to the judge without an
additional appellate procedure.
Senator Voinovich. I see. In order so that you don't have
the paperwork that is involved, the reviewing official gets the
file, looks it over, they approve it and it's done.
Ms. Margolius. Correct.
Senator Voinovich. You don't think it should be I will take
the file and move it, any appeal is to the judge.
Ms. Margolius. Correct. Continuation of the appeal also
protects the claimants. The current review process satisfies
the claimants' need to have oversight of the administrative law
judges decision. A major basis for remand by the appeal counsel
is not submission of new evidence but legal error committed by
the ALJ. The Commissioner should maintain this process for
rectifying errors administratively rather than forcing a court
review.
To date, though, Senator, the fundamental problem has been
staffing at the Office of Hearing and Appeals. However, judges
are only part of the solution. Support staff is based on the
number of judges not the number of cases. So as long as we have
the current backlog that exists at the Office of Hearing and
Appeals, the delays are endemic and will continue without that
much needed support staff.
Senator Voinovich. What you are saying is even though you
think we are going to bring two or three----
Ms. Margolius. Three more judges by June.
Senator Voinovich. And of course they are farming out a lot
of these cases to other offices, I would be interested to hear
from you how you feel about that, maybe not in your testimony
but as a question, but it's the old staff thing.
Ms. Margolius. Correct.
Senator Voinovich. The thing that would be interesting to
know why it is that Ohio has all these backlogs versus other
offices, why is it we are farming cases out to someplace else
and is it reflective. I thought this over, not in this area but
even with immigration, same problem, it seems like we get
shortchanged. So it would be interesting based on case load to
see how the staffing levels fit with the judges. And, Mr. Hill,
you might comment on that. Put that one down as a question.
Ms. Margolius. Finally, to respond to Mr. Daub's comment, I
believe, forum shopping is not part of the system. If a case
must be delayed, the claimant is unhappy. The case gets
rescheduled with the same judge who also is not happy with any
of the delays. So delays are avoided at all costs. You cannot
postpone a case and have it reassigned to another judge. It
goes back to the same judge.
That's the same procedure with appeal counsel remands also.
If you do appeal, you get a remand, it's returned to the same
administrative law judge to deal with the issues that were
raised on remand. That's the end of my comments.
Senator Voinovich. Thank you very much. That's a good
suggestion. Mr. Hill, what is your comment in terms of the
staffing level here?
Mr. Hill. Staffing, there are two distinct problems. You
don't have the funding for enough staffing. And I think the
second is----
Senator Voinovich. Have you looked at your staff here
versus other parts of the country to ascertain whether or not
you are being shortchanged.
Mr. Hill. We are being shortchanged I suppose if you look
at it that way in terms of we have fewer judges than we need.
And it has been pointed out staffing is based on the number of
judges. So if you are short of judges, you are going be short
of staff. If you don't have enough staff, you are not going to
get more judges.
Senator Voinovich. I think to start off with you need
judges. But the question I have is for the judges that you have
in terms of staffing compared to other places, are the staffing
levels to support the judges same as in other jurisdictions.
Mr. Hill. It's slightly higher. When we get the three new
judges it will be about the national average.
Senator Voinovich. You have more staff then you need right
now.
Mr. Hill. Temporarily, only temporarily because we have
lost three judges in the last year and we are acquiring three
judges.
Senator Voinovich. You lost three, you got the staff that
supported those judges, now you are going to get the three
judges.
Mr. Hill. I don't believe we have had any hiring in quite
some time as far as staff.
I think the second problem we need to look at with staff is
one of the problems HPI introduced is the group system where
you group employees with a group administrative law judges. In
my opinion that has been a disaster. I do support Judge Dugan
when he says we need to go back to a modified unit system where
we have specific people working toward specific judges rather
than a generalized system.
Senator Voinovich. Like a pool.
Mr. Hill. It's hasn't worked as well as some of the people
in Baltimore thought it would. It's not very efficient.
Senator Voinovich. Commission Barnhart is going to change
that, right?
Mr. Hill. I hope so. We haven't changed it as of yet.
Senator Voinovich. That's an aftermath of the----
Mr. Hill. HPI.
Senator Voinovich [continuing]. HPI and it hasn't been
changed and you are hopeful for it to be changed. The question
to the Commissioner is it one of the things she's going to
change. Mr. Dugan.
Mr. Dugan. On that issue it's kind of funny, it has been
changed in some offices to some degree. It has been finessed a
little better in others but in Cleveland it hasn't for some
reason. They brought more accountability in other offices where
you can match people up so people know what cases belong to who
and who you go to but when you have this group thing you have a
whole bunch of people responsible for a whole bunch of stuff.
No one is responsible for anything and it makes it--that's why
when an attorney sends in evidence, it doesn't get into files,
that's why sometimes these hearings get delayed. By the date of
the hearing the judge gets a stack like that. It's not the
attorney's fault. The attorney is probably sending it a month
ago or 6 months ago.
Senator Voinovich. The question is you are saying where
they have changed it----
Mr. Dugan. I can get you some offices where it's been
changed for the better.
Senator Voinovich. It seems to me that your organization
should be looking at best practices and try to share that
information with your colleages. Who is the boss in Cleveland
in terms of the office procedures, are you, Mr. Hill?
Mr. Dugan. The chief judge is Alan Ramsay.
Senator Voinovich. So your organization could compile best
practices and send it to Chief Judge Alan Ramsay. If some
offices have changed the process from HPI, why don't the rest
of the offices?
Mr. Dugan. We have sent suggestions, I said in my
testimony, sent them up to the associate commissioner. I'm not
in a position to suggest to Judge Ramsay how he is going to run
his office. We sent them to the head of the organization. It's
up to them to decide. That would be outside of my realm.
Senator Voinovich. I would think that Ms. Barnhart would be
interested if this is working some places. We ought to see if
we can't get it done. So you could do that in Cleveland, right?
Mr. Hill. Yes, I suppose. Again, it's bureaucracy whatever
the instructions are above you. Currently it's a group system.
Because all of the offices are located all over the country
there are probably more variances than a lot of organizations
but technically speaking according to the rules, the group
system is still in place.
Senator Voinovich. Why don't you let me know when you are
going to get it changed. I want you to personally look into
this, Mr. Hill, and get a letter to Mr. Ramsay. I want to get a
letter to Mr. Ramsay, I want to know what other places are
doing and get that to Ms. Barnhart so she can give her blessing
that he get going on this thing. Ms. Margolius, do you think
that would help a lot?
Ms. Margolius. It would help because it would allow
assignment to individual judges quicker.
Senator Voinovich. How long have you practiced?
Ms. Margolius. Twenty years.
Senator Voinovich. So you've had a chance to compare the
old system versus the new system?
Ms. Margolius. Yes.
Senator Voinovich. What is your comment about the new
system?
Ms. Margolius. Cleveland hasn't seen the new system yet.
Senator Voinovich. Before they came up with HPI, they had
staff that would be working directly with a judge, working the
cases up, they would be responsible for it and then apparently
they changed the process with HPI. Did you see it at that
stage?
Ms. Margolius. I did. And it was much better before.
It gets to the issue of accountability, a judge could be
accountable for cases earlier on, his staff was accountable, it
gave you individuals to talk to. If you have a case that is
sitting in the Office of Hearings and Appeals for years not
assigned to a judge, it's sort of hit or miss if you can find
someone for a dire need case, critical case to pick up that
file and deal with it. It's an issue of accountability.
Senator Voinovich. You have heard testimony of Ms. Barnhart
and others about the fact that they are farming these cases out
to other places. Have you had any experiences with cases in
that new system?
Ms. Margolius. Yes, both farmed out and with video
conferencing. It's a short-term help, I mean, again, like
looking at the crisis that we are trying to deal with.
Senator Voinovich. Is it working?
Ms. Margolius. It is working.
Senator Voinovich. And your clients don't feel like they
are getting shortchanged because of it?
Ms. Margolius. No, sir, not at all.
Senator Voinovich. The idea would be getting more judges
here, replace the three that you didn't have. Are you sure if
you are replacing three you didn't have, seems to me you need
more than three. You have this backlog building up. How many
judges do you need?
Mr. Hill. I think Cleveland probably needs about 14 judges
to be fully staffed.
Senator Voinovich. How many do we have?
Mr. Hill. We have eight right now.
Senator Voinovich. We go from 8 to 11 and you think we need
an additional three judges?
Mr. Hill. Yes.
Senator Voinovich. We should ask about these 50 coming in.
I will send a letter to the Commissioner on this. The 50 new
individuals coming on, maybe you can respond to this, are just
to replace those who have retired?
Mr. Dugan. Yes. Commissioner Barnhart testified in
September that she was short 200 judges nationwide. So this 50
is kind of you lose about 50 a year so it really just keeps us
treading water as far as that is a concerned.
And connected to that is the Medicare that is coming on
line. And they are going to probably take 70 immediately but
eventually going to need close to 200 judges themselves.
Senator Voinovich. And they are going to go over and do
what again?
Mr. Dugan. Medicare Part B and hearing all the appeals from
denials or overpayments under the Medicare system. And they are
going to go into HHS, Congress is moving HHS.
Senator Voinovich. You are saying these are appeals with
the current Medicare system?
Mr. Dugan. Yes.
Senator Voinovich. This has nothing to do with the new
system?
Mr. Dugan. With the current system. All the Medicare cases,
SSA is currently handling. They handle a contract with CMS.
That is now moving on October 2005 into HHS and all those
judges will have to move plus they are going to pick up some
more because of the new system.
The point I am trying to make is that over the next 4 years
it looks like the Federal Government is going to be hiring
close to 400 to 500 administrative law judges. The problem is
that Office of Personnel Management which has been responsible
for that has abolished its office of administrative law judges
and it is not focused like it used to be on the administrative
law judge system. And that is a problem.
Senator Voinovich. Where has that gone?
Mr. Dugan. They farmed it out as we can tell to different
functions within the agency.
Senator Voinovich. Who did they farm it out to.
Mr. Dugan. In their own system. It was in one office and
farmed out the function to a different division within OPM.
There is no one person in charge of the overall function.
Senator Voinovich. When did that happen?
Mr. Dugan. That abolishment was probably in the last 2 to 3
years. Meanwhile we had that stay as well and they were not
creating, part of the Azdell case that was whether they were
going to create a new system and OPM never moved forward with
that. Now that the stay is lifted, we have the old register and
from what I was told recently, OPM is going to close that
register and create a whole new one with their new system but
they haven't started that yet. That could be awhile down the
road. It takes a year to get another register.
Senator Voinovich. Could you put that down in a letter to
me and I will send it over to Kay Coles James and get a
reaction from her, she is the head of OPM.
Mr. Dugan. I would be glad to.
Senator Voinovich. You see how many you need, and it's also
phasing in people over a period of time. Somebody has to look
at what kind of capacity you are going to need to meet some of
these responsibilities that are coming up.
Ms Margolius, do you have some other comments you would
like to make? You had a chance to sit in and listen to the
other witnesses and I think you may have some colleagues
attending the hearing that also represent clients. Could you
comment about some of the things that you heard and what do you
think of them?
Ms. Margolius. Yes, sir. First the greatest concern which I
touched on very briefly was the issue of forum shopping. And I
just want to make it clear that is not a practice. Certainly
anyone representing disabled people wouldn't take such a step
that would harm them and it would be an action very much
frowned upon by judges we appear in front of repeatedly. It's
just not an issue.
Second, on the issue of closing the record, the hearing
record is closed after the judge's decision. There are good
cause standards to get new evidence in at later appeals but
this has been dealt with by the Sixth Circuit Court of Appeals
which covers new material evidence and good cause standards. I
don't think closing the record after the judge's hearing is
really an important issue either since this is closely
monitored and taken care of.
Concerning Commissioner Barnhart, I think the bar
associations are very impressed with her and with her
initiatives and what she wants to do. Again, I see most of her
initiatives at this point being at the front end and that's not
dealing with the crisis that your constituents and our clients
are dealing with now and that the actions being taken as far as
video teleconferences and farming out the cases to other
regions and more judges hopefully will deal with the backlogs
and what we see as a greater crisis currently.
Senator Voinovich. You were saying something about the read
only files for attorneys. Tell me about that.
Ms. Margolius. Yes. With the AeDib program what they are
proposing that the electronic folder is going to be available
only to Social Security personnel. When we get up to a level
where we will be appearing in front of a judge, they'll burn a
disk for us so we can see the records. I see that as a great
problem. For one thing, no judge wants me to turn in duplicate
evidence but if I can't see the electronic file I'm going to be
submitting evidence sort of in the dark. I don't know what they
have, I am duplicating information, even though I'm submitting
the most pertinent information.
The Federal courts have a read-only file, everything is
electronically filed with the Federal court. We can get in and
read the decisions and court order. If this can be done with
the court system, it seems like Social Security could duplicate
that system, where we can go on line, read the records, read
what is transpiring in the case but not have any right to alter
any of the documents at all.
Senator Voinovich. So the point is that the electronic file
would be worked up on the State level with all the information.
If we eliminate the reconsideration in going to a hearing
officer then that information the hearing officer puts in would
be in the record and you would be able to access it.
Judge Dugan, can you tell us what do you think about the
suggestion she's making?
Mr. Dugan. I'm really not up to date on what she's saying.
But it's clear the representative has to have access to what it
is. How they are going get it, I suspect they'll work it out.
We would support them having access one way or the other.
Some kind of read only file it's a little more complicated
because there's a security problem when we are accessing these
medical problems and getting into the database. I think that's
what they are struggling on how to solve security problems and
what the system needs and they are well aware of that need but
I think they haven't solved it yet.
Senator Voinovich. Ms. Margolius, why don't you get me a
letter on that. I will send it over to the Commissioner and ask
her to respond to me where they are with that and if it's
allowed in the Federal courts why can't we be doing it with
your files if you think that would help expedite things.
What some of the difference you are asking for, I suspect a
lot of the case material in Federal cases is similar to the
information contained in disability files. I don't know why it
could be a problem.
Mr. Hill. Probably one of the underlying problems is
privacy. The medical records associated obviously with Social
Security are numerous. What needs to be worked out is a secure
way to transmit that information to only the people who are
entitled to it. District court information is public
information. I can go on and look at any case. I think we are
really trying to shy away from that kind of situation. It's a
technical matter IT people are going to have to work out. There
is no question the representatives and claimants themselves
have a need and right to see the material that Social Security
Administration has, no question. I think it's a technical
matter to get it straightened out. A little push would help.
Senator Voinovich. I would like your consensus,
particularly Mr. Dugan and Mr. Hill, about this marked
difference between the rejection of cases around the country as
little as 35 percent, as high as almost 70 percent. Shouldn't
we try to get more uniformity? We talked about having the State
DDS employees better trained. You think that having a common
school that they go to, is that it, and Ms. Barnhart talked
about this forum, is there a uniform forum you use, Mr.
Williamson, on the State level, is your forum taking
information exactly the same as other States?
Mr. Williamson. Yes.
Senator Voinovich. So it's uniform. That seems to be
something that really needs to be looked at.
Mr. Dugan. I agree. But before I get into that, I have to
say that I am familiar with DDS throughout the Nation. And
these people are very knowledgeable, hard working people. They
are under a crush. There's a bias at the DDS level to deny a
claim. If you pay a claim, you have to work a little harder to
pay it and that----
Senator Voinovich. You what?
Mr. Dugan. You have to justify it a little more. Just like
OHA level, if you are going to deny, you justify more than if
you pay a claim. It builds in a bias at different levels. Why
is there an inconsistency? It's very difficult to answer. But I
think what the Commissioner is doing with that reviewing
official is going to be a key to getting that consistency that
we want nationwide because that reviewing official is going to
be able to send cases back, as I understand it, with
instructions so that you'll get some feedback. Currently there
is no feedback in the system.
Senator Voinovich. So if she gets her way and you have the
reviewing officer that would be kind of the quality control
person that would look at the case and maybe send it back to
the agency and say I have observed certain cases coming here by
certain people that appear not to have enough information or
there seems to be some lack of effort there to do the job, is
that what you are saying?
Mr. Dugan. I think it would be along that way. She calls it
in-line quality control.
Senator Voinovich. Your DDS people in Ohio, do they go to
the same training nationally?
Mr. Williamson. We have our own training department.
Senator Voinovich. In terms of the consistency of the
training in various places, it may vary substantially.
Mr. Williamson. Ours is based on SSA rules and regulations
but we do.
Senator Voinovich. That's another area somebody ought to
look at with the training. Do you have continuous upgrading of
training, your judges do. Don't you have training programs for
judges?
Mr. Dugan. When I came to SSA I was shocked by the lack of
training that they provided. The training provided to judges
primarily is provided by the judges. We pay our own way. Only
recently with the prodding of Congress did we get time off and
get some small stipend but not a per diem or anything like
that. It's put on by our association.
Commissioner Barnhart and Martin Gerry have worked hard to
try to upgrade that but we don't get the type of training at
the level we should.
Senator Voinovich. So that's another issue, training. That
doesn't surprise me. When I came in I was trying to bring
quality management to the Federal Government and I realized
they had a human capital crisis. I sent out letters to 12
agencies and asked how much money they spend on training and 11
came back and said they didn't know. One letter came back and
said they did know but wouldn't tell me. It's a major problem I
think right across the board even with, I'm sure, these people
that work these cases up that they need better training.
Are you able to attract the right people in these cases,
Mr. Hill? Do you have any problems hiring people? Is the salary
level adequate?
Mr. Hill. OHA level it's adequate. I don't think there's a
significant problem. I think there might be a problem retaining
people. Again, a lot of that is--a lot of things are involved
when you have a national program. There are cultural
differences and regional differences. I think you tend to find
OHA employees in the Rust Belt stay a lot longer than they do
in California where we have a steady turnover of attorneys.
It's very unusual in the Rust Belt. A lot has to do with the
economic well-being of the area.
I think to some extent regional differences show their
faces in a number of areas, not the least of which may be even
payment rate.
Senator Voinovich. In what way?
Mr. Hill. Pay rate of DDS. I don't have the statistics. I'm
not management.
Senator Voinovich. Who determines the wage level of DDS
people?
Mr. Hill. States.
Senator Voinovich. You could have marked differences
between the pay somebody is getting in Mississippi versus Ohio
or Indiana and so on?
Mr. Hill. Yes, sir.
Senator Voinovich. I would like to get that, too. Find out
what the pay level of these people are across the country and
get an idea what it is.
Mr. Dugan. May I respond? First of all, we want to thank
you for introducing our pay bill in the Senate. Part of the
problem with regard to pay is that in 1990 the entry level for
administrative law judges was about 15 step 6 or so. Because of
a pay cap that has dropped to a level of 14 step 7. So someone
like Ms. Margolius if they were to take a job as an
administrative law judge not only would she have to probably
take a pay cut, she would be closing down her practice and so
are we getting the best people on that list is the problem. So
that pay bill is important to us and we have been working on
trying to put together some kind of pension so it recognizes
people coming in from private industry for a shorter period of
time for a career that we have put forward with your staff.
Senator Voinovich. One of the things we did in this
legislation is it's simple but gets to the issue of whether
someone is going to be willing to come to the Federal
Government. But if you come in to work for the Federal
Government the first year you get 2 weeks of vacation and 3
years you get 3 weeks and then at 15 years of service you get 4
weeks. So we changed that. We provided this flexibility for
Sean O'Keefe, at NASA. It's a simple thing, but it's a big deal
to someone out there working. Perhaps it will help recruit
successful business professionals to Federal service. By the
way you are here 15 years, you are going to get time off, I'm
not sure how much time you get off anyhow in private practice.
I didn't get that much. But those are some of the practical
things that we are dealing with but I really would, Mr. Hill,
get your point of view or from the judge that runs the
Cleveland office.
Mr. Hill. Judge Ramsay.
Senator Voinovich. I would be interested to see just how
our staffing levels compare with other places. That just seems
like we are shortchanged. What we should be striving for is
getting the three judges, replace those we have and try to get
three more. Do you think that would help a lot?
Ms. Margolius. Greatly, Senator. But one point on the
staffing levels, though, that the staff is tied to the number
of judges but if you have judges already over worked if you are
going to have too many cases for any one judge you really need
to base the staff on the number of cases rather than the number
of judges.
Senator Voinovich. The thing to look at--are these places
being allocated because right now they are going to be sitting
in Washington or Baltimore looking at the deal? Where are we
going to put these judges and we should be putting in a real
effort to say, look, we need these judges and part of the
problem that we have is we just haven't had them.
Ms. Margolius. When I started 20 years ago, Cleveland had
the highest number of judges they ever had. They were up to 18.
And Mr. Hill says that he thinks they need 14 to work
efficiently but we had 18 with fewer cases and the waiting
period was minimal at that point in time.
Senator Voinovich. Mr. Dugan, do you have any kind of
standard that you use? I'm getting into the nitty-gritty here
but that kind of stuff really makes a difference in terms of
case loads of various judges and in terms of productivity or
anything like that if you got X number of cases that's a pretty
good year or pretty good docket and when you get to this point
maybe it's a little bit more than it ought to be in standards.
Mr. Dugan. If you are looking for something like that, look
at preHPI because HPI skewed everything. You can see judges
doing somewhere between 25 or 50 cases.
Senator Voinovich. How many?
Mr. Dugan. Twenty-five to 50 if they have the staff. If
they have the staff that's the key. If the staff was assigned
to them and can get the cases worked up. What happened after
HPI was a terrible thing. There were judges sitting nationwide
in their offices waiting for cases to come to hearing but they
were not being prepared. I could ask for 45 cases to be
scheduled, that's 45 hearings, they say we can only give you
20. And as that was happening, that happened for a couple
years, and the backlog just continued.
If I may, that letter you wrote, someone wrote me a letter
once, and this was before HPI, I paid this claim after a
hearing and paid it pretty quickly, a week or two. It wasn't a
hard case. And about 3 weeks after that I got a letter from his
wife, she told me he had died. And she said, you don't know how
important it was to him that he was validated before he died.
If that same thing were to happen today, that poor man
would be dead before he would even get to the hearing much less
before I could get a decision out. That's how bad it is. That's
how angry we got about what was happening in the system.
Senator Voinovich. And you think that the Commissioner
really has listened and has a good idea what to do now? The
issue is, is she going to have the resources to get the job
done.
Mr. Dugan. I absolutely do. I have never met anyone in
government who is so knowledgeable and open and ready to make
the changes that need to be made. This is a big plan she's got.
It takes a lot of courage to do it. She has a good guy, Martin
Gerry, working with her. A hundred percent, the right person.
Now she just needs the tools.
Mr. Hill. I concur with that 100 percent.
Senator Voinovich. That's good news. What we want to do is
to take care of Cleveland and get those cases down and get this
office geared up to what it ought to be and deal with the
national problems to get moving. Any other comments anybody
would like to make?
I thank you for coming here. This has been a really great
hearing. I'm so glad you came and we decided to do this.
Hearing is adjourned.
[Whereupon, the Subcommittee was adjourned.]
A P P E N D I X
----------
[GRAPHIC] [TIFF OMITTED] T4200.004
[GRAPHIC] [TIFF OMITTED] T4200.005
[GRAPHIC] [TIFF OMITTED] T4200.006
[GRAPHIC] [TIFF OMITTED] T4200.007
[GRAPHIC] [TIFF OMITTED] T4200.008
[GRAPHIC] [TIFF OMITTED] T4200.009
[GRAPHIC] [TIFF OMITTED] T4200.010
[GRAPHIC] [TIFF OMITTED] T4200.011
[GRAPHIC] [TIFF OMITTED] T4200.012
[GRAPHIC] [TIFF OMITTED] T4200.013
[GRAPHIC] [TIFF OMITTED] T4200.014
[GRAPHIC] [TIFF OMITTED] T4200.015
[GRAPHIC] [TIFF OMITTED] T4200.016
[GRAPHIC] [TIFF OMITTED] T4200.017
[GRAPHIC] [TIFF OMITTED] T4200.018
[GRAPHIC] [TIFF OMITTED] T4200.019
[GRAPHIC] [TIFF OMITTED] T4200.020
[GRAPHIC] [TIFF OMITTED] T4200.021
[GRAPHIC] [TIFF OMITTED] T4200.022
[GRAPHIC] [TIFF OMITTED] T4200.023
[GRAPHIC] [TIFF OMITTED] T4200.024
[GRAPHIC] [TIFF OMITTED] T4200.025
[GRAPHIC] [TIFF OMITTED] T4200.026
[GRAPHIC] [TIFF OMITTED] T4200.027
[GRAPHIC] [TIFF OMITTED] T4200.028
[GRAPHIC] [TIFF OMITTED] T4200.029
[GRAPHIC] [TIFF OMITTED] T4200.030
[GRAPHIC] [TIFF OMITTED] T4200.031
[GRAPHIC] [TIFF OMITTED] T4200.032
[GRAPHIC] [TIFF OMITTED] T4200.033
[GRAPHIC] [TIFF OMITTED] T4200.034
[GRAPHIC] [TIFF OMITTED] T4200.035
[GRAPHIC] [TIFF OMITTED] T4200.036
[GRAPHIC] [TIFF OMITTED] T4200.037
[GRAPHIC] [TIFF OMITTED] T4200.038
[GRAPHIC] [TIFF OMITTED] T4200.039
[GRAPHIC] [TIFF OMITTED] T4200.040
[GRAPHIC] [TIFF OMITTED] T4200.041
[GRAPHIC] [TIFF OMITTED] T4200.042
[GRAPHIC] [TIFF OMITTED] T4200.043
[GRAPHIC] [TIFF OMITTED] T4200.044
[GRAPHIC] [TIFF OMITTED] T4200.045
[GRAPHIC] [TIFF OMITTED] T4200.046
[GRAPHIC] [TIFF OMITTED] T4200.047
[GRAPHIC] [TIFF OMITTED] T4200.048
[GRAPHIC] [TIFF OMITTED] T4200.049
[GRAPHIC] [TIFF OMITTED] T4200.050
[GRAPHIC] [TIFF OMITTED] T4200.051
[GRAPHIC] [TIFF OMITTED] T4200.052
[GRAPHIC] [TIFF OMITTED] T4200.053
[GRAPHIC] [TIFF OMITTED] T4200.054
[GRAPHIC] [TIFF OMITTED] T4200.055
[GRAPHIC] [TIFF OMITTED] T4200.056
[GRAPHIC] [TIFF OMITTED] T4200.057
[GRAPHIC] [TIFF OMITTED] T4200.058
[GRAPHIC] [TIFF OMITTED] T4200.059
[GRAPHIC] [TIFF OMITTED] T4200.060
[GRAPHIC] [TIFF OMITTED] T4200.061
[GRAPHIC] [TIFF OMITTED] T4200.062
[GRAPHIC] [TIFF OMITTED] T4200.063
[GRAPHIC] [TIFF OMITTED] T4200.064
[GRAPHIC] [TIFF OMITTED] T4200.065
[GRAPHIC] [TIFF OMITTED] T4200.066
[GRAPHIC] [TIFF OMITTED] T4200.067
[GRAPHIC] [TIFF OMITTED] T4200.068
[GRAPHIC] [TIFF OMITTED] T4200.069
[GRAPHIC] [TIFF OMITTED] T4200.070
[GRAPHIC] [TIFF OMITTED] T4200.071
[GRAPHIC] [TIFF OMITTED] T4200.072
[GRAPHIC] [TIFF OMITTED] T4200.073
[GRAPHIC] [TIFF OMITTED] T4200.074
[GRAPHIC] [TIFF OMITTED] T4200.075
[GRAPHIC] [TIFF OMITTED] T4200.076
[GRAPHIC] [TIFF OMITTED] T4200.077
[GRAPHIC] [TIFF OMITTED] T4200.078
[GRAPHIC] [TIFF OMITTED] T4200.079
[GRAPHIC] [TIFF OMITTED] T4200.080
[GRAPHIC] [TIFF OMITTED] T4200.081
[GRAPHIC] [TIFF OMITTED] T4200.082
[GRAPHIC] [TIFF OMITTED] T4200.083
[GRAPHIC] [TIFF OMITTED] T4200.084
[GRAPHIC] [TIFF OMITTED] T4200.085
[GRAPHIC] [TIFF OMITTED] T4200.086
[GRAPHIC] [TIFF OMITTED] T4200.087
[GRAPHIC] [TIFF OMITTED] T4200.088
[GRAPHIC] [TIFF OMITTED] T4200.089
[GRAPHIC] [TIFF OMITTED] T4200.090
[GRAPHIC] [TIFF OMITTED] T4200.091
[GRAPHIC] [TIFF OMITTED] T4200.092
[GRAPHIC] [TIFF OMITTED] T4200.093
[GRAPHIC] [TIFF OMITTED] T4200.094
[GRAPHIC] [TIFF OMITTED] T4200.095
[GRAPHIC] [TIFF OMITTED] T4200.096
[GRAPHIC] [TIFF OMITTED] T4200.097
[GRAPHIC] [TIFF OMITTED] T4200.098
[GRAPHIC] [TIFF OMITTED] T4200.099
[GRAPHIC] [TIFF OMITTED] T4200.100
[GRAPHIC] [TIFF OMITTED] T4200.101
[GRAPHIC] [TIFF OMITTED] T4200.102
[GRAPHIC] [TIFF OMITTED] T4200.103
[GRAPHIC] [TIFF OMITTED] T4200.104
[GRAPHIC] [TIFF OMITTED] T4200.001
[GRAPHIC] [TIFF OMITTED] T4200.002
[GRAPHIC] [TIFF OMITTED] T4200.003
[GRAPHIC] [TIFF OMITTED] T4200.108
[GRAPHIC] [TIFF OMITTED] T4200.109
[GRAPHIC] [TIFF OMITTED] T4200.111
[GRAPHIC] [TIFF OMITTED] T4200.112
[GRAPHIC] [TIFF OMITTED] T4200.113
[GRAPHIC] [TIFF OMITTED] T4200.114
[GRAPHIC] [TIFF OMITTED] T4200.115
[GRAPHIC] [TIFF OMITTED] T4200.116
[GRAPHIC] [TIFF OMITTED] T4200.117
[GRAPHIC] [TIFF OMITTED] T4200.118
[GRAPHIC] [TIFF OMITTED] T4200.119
[GRAPHIC] [TIFF OMITTED] T4200.120
[GRAPHIC] [TIFF OMITTED] T4200.121
[GRAPHIC] [TIFF OMITTED] T4200.122
[GRAPHIC] [TIFF OMITTED] T4200.123