NATIONAL ASSOCIATION OF DISABILITY EXAMINERS
UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEES ON SOCIAL SECURITY AND HUMAN RESOURCES
May 2, 2002
NADE is a professional association whose mission is to advance the art and science of disability evaluation. Our membership includes personnel in Social Security’s Central Office and Field Offices, claimant advocates, physicians, attorneys, and many others. However, the majority of our members work in the state Disability Determination Service (DDS) offices and are directly involved in the adjudication of claims for Social Security and Supplemental Security Income (SSI) disability benefits. It is the diversity of our membership, combined with our “hands on” experience, that enables our Association to offer a perspective that is both unique and reflective of a pragmatic realism. Our perspective is also developed with a conscious awareness that none of the challenges facing the new Commissioner exist in a vacuum.
Jo Anne Barnhart has served as the Commissioner of Social Security for six months, having been sworn in on November 8, 2001. We are convinced that her brief tenure thusfar, combined with her service as a member of the Social Security Advisory Board, has provided the Commissioner with a keen awareness of many of the challenges she will face, and the urgent necessity to move quickly to address them.
We believe the new Commissioner has already indicated a willingness to make the necessary decisions to move the Agency forward. The new Commissioner provided a capsule summary of the challenges she will face when she outlined her goals for the Agency during her confirmation hearing.
Improve service to the public
Strengthen and modernize the Social Security program
More fully involve SSA’s employees in making decisions
We concur with these broadly stated goals and fully support the Commissioner’s intent to make them a reality. NADE previously provided testimony on the “Challenges Facing the New Commissioner of Social Security” before these Subcommittees on March 12, 1998. We stated then that, “We are keenly aware of many of the challenges facing Social Security today, perhaps the greatest of which is restoring and maintaining public confidence.” Time and circumstances have not altered our opinion. We believe the crisis in public confidence is a greater priority, and a greater challenge, today than it was four years ago.
Because of the tremendous impact Social Security and Supplemental Security Income have on our nation’s well being, maintaining America’s confidence in the ability of these two programs to provide at least some guarantee of financial security is of paramount importance. Social Security touches the lives of every American and SSI touches the lives of millions of Americans. For many of these citizens, the benefit payments they receive from these programs are their primary or sole source of income. Therefore, it is critically important that America’s confidence in the promise inherent in these two programs be restored and maintained.
The new Commissioner must recognize that each of the challenges that faces her leadership team detracts from the level of confidence the public has in Social Security. To successfully combat this crisis in public confidence, the Commissioner will have to effectively resolve these issues:
Solvency of Social Security trust funds
The need to develop a more efficient disability claims process that is affordable
SSA’s inefficient and ineffective quality assurance process for its disability programs
The need to eliminate the five-month waiting period for Social Security disability benefits
The impact of technology on claimant service
The need to prepare for the impending wave of retirements that face both SSA and the DDSs
The need for bold leadership to provide direction for a program that has been managed, in large part, by short sighted responses to court decisions and other external pressures
The need to truly implement the “One SSA” concept throughout the Agency
The need for adequate resources to deal with the Agency’s caseloads
The need to meet other challenges, including the impact fraud has on the disability program, the need to resolve critical systems issues, and the challenge of ensuring that only the truly disabled are awarded benefit payments and that only those who remain disabled continue to receive these payments
There has been extensive public discussion regarding the solvency of Social Security. This has led to a fairly widespread belief, particularly among younger workers, that Social Security will not be available for future retirees. While most of this solvency debate has centered on the status of Social Security’s retirement trust fund, it is important that attention also be directed at the disability trust fund, which is projected to become insolvent even earlier. At her confirmation hearing, the new Commissioner asserted, “Whether they are just beginning their careers or retiring next month, the people of America expect and deserve to know that Social Security will be there when then need it.” We agree. Partisan politics and “hidden agendas” must be removed from the solvency debate if public confidence is to be restored.
NADE’s Proposal for A New Disability Claims Process
We believe that one of the most important challenges facing the new Commissioner is the need for an effective and affordable disability claims process. Any process must necessarily take into consideration the need for fair and timely decisions and the need for the American public to have confidence that only the truly disabled are awarded benefits. NADE is fully supportive of the Commissioner’s intent to examine the claims process to determine how to reduce the lengthy time period that many claimants must endure before a favorable decision is made on their claim.
NADE developed a proposal for a new disability claims process in February of this year and shared this vision with the Commissioner. A copy of this proposal is attached to our statement. What we desired was to use our experience and expertise to describe a way to improve the level of service provided to the claimant. It is appalling that many claimants wait nearly four years before a favorable decision is made on their claim. The major highlights of our proposal include:
Placing greater emphasis on claimant responsibility
Expansion of the Single Decision-Maker in the DDS
Enhancing the current reconsideration to provide a due process hearing for the claimant
Closing the record after the reconsideration decision
Allowing Administrative Law Judges to make the legal decisions that they are trained to do
Eliminating the Appeals Council
Establishing a Social Security Court to hear appeals of ALJ decisions.
We firmly believe that the decision as to whether a claimant is disabled is a medical decision and should be made by those who are especially trained to make such decisions. There have been arguments presented that hearings conducted at the reconsideration level would violate the Administrative Procedures Act of 1946 and would restrict the claimant’s right of appeal. This is not true. In the NADE proposal, claimants retain their full appeal rights guaranteed by law. Our proposal does assert that any appeal to an Administrative Law Judge should be an appeal of the claim that was heard at the DDS level. As long as the record remains open, and subsequent appellate levels are free to make decisions based on evidence that was not presented to the initial adjudicator, the discrepancies in the allowance rates between the different appellate levels will continue and the public’s confidence will continue to be undermined. NADE’s proposal affords the claimant the right to a hearing much earlier in the claims process than is the current practice. This is important when the timeline for the claimant to receive a hearing can exceed 1000 days!
Those who resist our proposal do not counter with a different proposal of their own. Rather, it is obvious their intent is to maintain the status quo. NADE is concerned that many who have expressed opposition to our proposal have a vested interest in maintaining the current system without significant changes. But, when the claimant now must wait 1000 days for a hearing, do we want to maintain that status quo? Our emphatic answer would be “No!” It is our assertion that the status quo won’t go anymore! It is time to move the disability program into the 21st century!
NADE believes that truly disabled citizens should be awarded benefits and that those who are not disabled should not receive benefits, regardless of the claims process used. NADE supports the goal that disability claimants who should be allowed are allowed as early in the process as possible. Our proposal attempts to do something about it and to do so in a constructive way.
Another challenge is SSA’s Quality Assurance process. In a study conducted recently, the same case was adjudicated in different parts of the country, at different levels, including the Disability Determination Service, the Office of Hearings and Appeals, and the Disability Quality Branch in SSA’s regional offices. The decisions rendered by these components varied widely, providing emphasis on the fact that there are widespread disparities between states and regions and between the DDSs and Administrative Law Judges. These disparities underscore the lack of a comprehensive quality review process that offers clear, consistent, and nationally uniform feedback. NADE has pointed out problems inherent in the current process and we have offered to assist any effort to design a more effective process. We are pleased to see the new SSA Commissioner has initiated efforts to reform the quality assurance process and we are hopeful that a new system can be designed and implemented that will address our concerns.
We believe it is essential that the new Commissioner should immediately address the problems with the QA process and the misguided perception that allowance rates reflect either accuracy or quality. Accurate decisions do not always mean allowance decisions. Sometimes, the answer is, “No,” but that does not mean the decision is any less accurate.
We believe Administrative Law Judges can, and should be, limited to issuing legal decisions as to whether the DDSs correctly applied the law and that Administrative Law Judges should not be allowed to continue issuing new medical decisions for which they have little or no training. The availability of a hearing at the reconsideration level should increase the DDS allowance rate while affording the claimant the right to a hearing much earlier in the process. Restricting the hearings before Administrative Law Judges to only matters of law should substantially lower their allowance rate. These actions would effectively reduce the gap between the allowance rates of the DDSs and Administrative Law Judges and help restore public confidence in the program while improving the level of service provided to the claimant.
Decline in Institutional Knowledge at SSA and DDS
The impending retirement wave at SSA and in the DDSs presents a significant challenge to the new Commissioner and one that must be addressed immediately. This expected decline in institutional knowledge would come at a time when the experience level in the DDSs is already severely diminished due to frequent staff turnover in recent years. Major challenges lie ahead as the bulk of institutional knowledge in the disability program retires, only to be replaced by less experienced personnel who will lack the opportunity to be mentored by knowledgeable persons. SSA has declared its intent to be an “Employer of Choice,” with a highly trained workforce and a work environment that attracts the most highly qualified job applicants. This commitment also requires that SSA address the same fundamental issues for the DDSs, including those of salary and training.
Impact of Technology on Claimant Service
SSA has acted in recent years to utilize advances in technology to improve the level of service offered to those seeking assistance. Unfortunately, these efforts have not always had the desired result and, in some cases, have had the opposite effect. We believe that this is especially true for disability claims. Because of the complexity of the disability application process, we believe that most applicants would benefit greatly from having access to personal assistance. Yet, the level of expertise within SSA’s field offices has declined along with the actual number of employees available to provide assistance. This has had an adverse affect on the quality of the application received in the DDS, reducing our ability to move forward quickly with processing these claims. The Commissioner has announced her goal to have the electronic disability claims folder fully operational in the field offices and DDSs by January 1, 2004. We believe this is an ambitious goal for an Agency that has struggled for the past ten years with developing an electronic folder. NADE is encouraged by the Commissioner’s commitment to advancing this goal and we support this effort. However, we caution the Subcommittees that the expected costs will be significant and will either be taken from other components already experiencing financial strain, or must be provided as new money. It will be unfair to expect the level of service that has been provided to be maintained if needed funds are diverted to other projects.
Elimination of the Five Month Waiting Period
There is growing concern that the disability program is not fair in requiring disabled citizens to complete a five-month waiting period before they can begin to receive benefit payments. This waiting period has caused many claimants and their families to suffer severe economic and emotional hardship. NADE prepared a position paper on this issue in 1999 and the Executive Summary is attached to our statement today. The entire paper can be seen at www.nade.org. We commend Congress for legislation passed, and subsequently signed into law, in December, 2000, that eliminated the waiting period for a small portion of the disabled community – those who suffer from Amyotrophic Lateral Sclerosis, or Lou Gehrig’s Disease. Subsequent legislation that would eliminate the waiting period for all claimants has yet to receive favorable action. The challenge we are presented with today is the need to recognize the human suffering caused by the waiting period and to eliminate this “eternal” wait, or at least limit its impact by significantly reducing its timeframe. Disabled citizens should be treated with compassion, dignity and honor.
The challenge to examine the current relevance of SSA’s definition of disability.
The challenge to revise the medical listings with attention as to how new and/or revised listings will impact on administrative and program costs.
The challenge to find a replacement for the Dictionary of Occupational Titles.
The challenge of dealing with increased instances of fraud.
The challenge of providing effective service to non-English speaking claimants.
The challenge of implementing the “One SSA” concept.
The challenge surrounding the medical improvement review standard (MIRS) and its impact on program costs.
NADE has expertise in many of these areas. For example, we have suggested that a claimant’s privilege to continue receiving benefit payments during their appeal should be revoked when the basis for the proposed cessation of benefits was the claimant’s own failure to cooperate. Also, the need to show medical improvement before ceasing benefits should be examined in light of the new advances in medical and rehabilitation technology. At the very least, a new exception to MIRS should be created to allow the cessation of benefits when the current assessment of the impairment(s) concludes that it is non-severe, or even non-existent, but the prior claim folder cannot be located, making it impossible to demonstrate that medical improvement has occurred.
In its September, 2000 report, the Social Security Advisory Board reported that, “…in recent decades, disability policy has come to resemble a mosaic, pieced together in response to court decisions and other external pressures, rather than the result of a well-thought out concept of how the programs should be operating… Policy and administrative capacity are dramatically out of alignment in the sense that new and binding rules of adjudication frequently cannot be implemented in a reasonable manner, particularly in view of the resources that are currently available.” NADE concurs with this observation. We believe the Commissioner must provide more definitive input into the development of disability policy and that this policy must reflect pragmatic reality. It is critical that the Commissioner should recognize that more direct guidance and administrative oversight from SSA’s top levels of management is needed. We believe it is equally important that the Commissioner be given the support necessary to make the appropriate changes that will recommit the Agency to its primary purposes of stewardship and service. The administration of the disability program presently requires about two-thirds of SSA’s operating budget ($8 billion in FY 2002-2003). To continue to allow the disability program to operate as described in the report from the Social Security Advisory Board would be a violation of the mission of SSA. That mission, clearly stated, is: “To promote the economic security of the nation’s people through compassionate and vigilant leadership in shaping and managing America’s social security programs.”
The new Commissioner will be significantly challenged by the need for greater emphasis on the demand for vigilant leadership. At her confirmation hearing, the new Commissioner asserted, “I do not seek to manage the status quo.” NADE agrees that managing the status quo is no longer a viable option. While we do not support change for the sake of change, we recognize that there a need for increased vigilance in the leadership of the Social Security Administration. No other agency has a greater impact on the quality of life in this nation and the American public will judge the ability of their government to meet their needs almost solely by the quality of service provided by SSA. We reiterate the point we made earlier in our statement thatmaintaining America’s confidence in the ability of Social Security and SSI to provide at least some guarantee of financial security is of paramount importance. Social Security can and must do better in fulfilling its promise to America and NADE stands ready, willing, and able to assist the new Commissioner in fulfilling that promise.
Attachments: NADE Proposal for a New Disability Claims Process
Executive summary, NADE Proposal to Eliminate the Five Month Waiting Period
NADE Proposal for New Disability Claims Process February 26, 2002
1. Intake of new disability claims at the Social Security Field Office would not be significantly altered from the current practice with the following exceptions: a. Greater emphasis would be placed on the inclusion of detailed observations from the claims representative. b. The claimant would be provided with a clear explanation of the definition of disability by the claims representative. The definition would also appear on the signed application. c. SSA’s web site should clearly indicate that this is a complex process that would be better served if the claimant filed the application in person at the Field Office. d. Quality review of the Field Office product would be added to demonstrate SSA’s commitment to build quality into the finished product from the very beginning of the claims process. e. SSA’s outreach activities would combine education with public relations. The Agency’s PR campaign would remind potential claimants of the definition of disability with the same degree of enthusiasm as the Agency’s efforts to encourage the filing of claims. f. Greater emphasis would be placed on claimant responsibility.
2. DDS receipts the new claim and assigns the claim to a disability examiner. The Disability Examiners initiates contact with the claimant to:
a. The Disability Examiner will verify alleged impairments, medical sources and other information contained on the SSA-3368. b. The Disability Examiner will provide a clear explanation of the process and determine if additional information will be needed. c. The Disability Examiner will inform the claimant of any need to complete additional forms, such as Activities of Daily Living questionnaires.
3. Expand the Single Decision Maker (SDM) concept to:
a. Include more claim types b. Allow more disability examiners to become SDMs c. Standardize national training program for all components of the disability process d. Establish uniform criteria for becoming SDMs e. Standardize performance expectations for all components of the disability process
4. If the initial claim is denied by the DDS, the denial decision will include an appeal request with the denial notice that the claimant may complete and return to the DDS.
a. The requirement for a clear written explanation of the initial denial will remain a major part of the adjudicative process. b. Process Unification rulings should be reexamined and, if necessary, modified to clarify how the initial disability examiners should address credibility and other issues. c. Claimant responsibility will be increased in the new process
5. The denied claim will be housed in the DDS for the duration of the period of time the claimant has to file an appeal. During this period of time, claims could be electronically imaged (with adequate resources – this would further the electronic file concept).
6. The appeal of the initial denial will be presented to the DDS. Upon receipt of the request for an appeal, the claim will be assigned to a new disability examiner. Under this proposal:
a. This appeal step would include sufficient personal contact to satisfy the need for due process. b. The appeal decision, if denied, would include a Medical Consultant’s signature. c. The decision would include findings of fact. d. There would be a provision to include an automatic remand to DDS on appeals for denials based on failure to cooperate. 7. The record should be closed at the conclusion of this appeal (including allowing sufficient time for explanatory process before the record closes).
8. Appeal to the Administrative Law Judge must be restricted to questions of law rather than de novo review of the claim.
a. The DDS decision needs to have a representative included in the hearing to defend the decision. b. There must be an opportunity to remand to DDS but such remand procedures must be carefully monitored to prevent abuse and remands should only occur for the purpose of correcting obvious errors.
9. There needs to be a Social Security Court to serve as the appeal from OHA decisions.
a. The Social Security Court will serve as the final level of appeal. b. The Social Security Court will provide quality review of ALJ decision. c. The Appeals Council would be eliminated, limiting the total number of appeal steps within SSA to three. Appeals beyond the ALJ level would be presented to the Social Security Court. d. The Social Security court would be restricted to rendering only a legal decision based on the application of the law.
Explanation of New Disability Claims Process Proposed by NADE
NADE considered various alternatives to the current disability claims process before deciding on this process as representing the hope for a claims process that truly provided good customer service while protecting the trust funds against abuse. It was our intent to develop a vision for what the total program should look like and not just the DDS piece of the puzzle. We believe in the concept of “One SSA” and our proposal is submitted based on the belief that all components within the disability program should be united in the commitment to providing good customer service at an affordable price. Quality claimant service and lowered administrative costs should dictate the structure of the new disability program.
The critical elements identified in the NADE proposal are:
The expansion of the Single Decision Maker concept to all DDSs and expanding the class of claims for which the SDM is able to provide the decision without medical or psychological consultant input. Continuing Disability Review cases (CDR’s) and some childhood and mental cases can easily be processed by SDMs.
More early contact with the claimant by the DDS to explain the process and to make the process more customer friendly. The Disability Examiner is able to obtain all necessary information while clarifying allegations, work history, and treatment sources. The claimant is educated about the process so they know what to expect.
Housing the initial claim folder on denied claims in the DDS pending receipt of an appeal of that denial. This will effectively eliminate significant shipping costs incurred in transporting claims from the DDS to the Field Office and then back to the DDS. Costs of storage in the DDSs would be significantly less than the postal fees incurred by SSA in the current process. Housing the claims at the DDS instead of the Field Offices could save as much as $20 per claim in shipping costs. It will also reduce processing time by eliminating a hand-off.
Closing the record after the appeal decision is rendered. NADE believes that closing the record prior to any subsequent ALJ hearing is critical to generating consistency, providing good customer service, restoring public confidence and reducing the costs of the disability program. Without it, there will continue to be two programs, one primarily medical and one primarily legal, with two completely different outcomes. We are unclear as to the degree of personal contact that would be required to satisfy the due process requirement at this appeal level and would defer to SSA the decision as to how much contact is needed and how the requirement could be met. Is a face-to-face hearing necessary or can a phone interview suffice? Even the former, conducted in the DDS, would be substantially less costly than the current hearing before the ALJ. The DDS hearing would allow the claimant to receive a much more timely hearing than the current process allows. NADE also believes that the role of attorneys and other claimant representatives would be significantly diminished as the opportunity for reversal of the DDS decision would be lowered substantially. The DDS hearing would be an informal hearing, lessening the impact attorneys have at this level.
NADE believes that the current 60 day period granted to claimants to file an appeal should be reexamined in light of modern communication and greater ability of claimants to file appeals more quickly. Reducing the time allowed to file an appeal would produce cost savings to the program and aid the claimant in obtaining a final decision much more quickly.
The additional costs incurred by the DDSs in this new process would be paid for from monies reallocated from OHA and from the cost savings created by less folder movement between the DDSs and the Field Offices. Political decisions will have to be made to reallocate these funds and these decisions will not be popular. Because of turf guarding by the various components within SSA and a general unwillingness to accept change, NADE believes that the victim in past efforts to develop a comprehensive disability claims process has been the claimant. The question must be asked, “Who do we serve, ourselves or the claimant?”
NADE envisions a claims process that would reinforce the medical decision made by the DDS and limit the OHA legal decision to addressing only points of law. NADE believes this proposal would produce a high level of consistency for the disability decisions rendered by the DDSs while significantly reducing the opportunities for OHA to reverse DDS decisions. This would help restore public confidence in the system, provide good service to the claimant and reflect good stewardship since the entire process should prove to be less costly than prototype or the traditional process. The decision as to whether a claimant is disabled would rightfully remain primarily a medically based decision. Claimants who appeal the DDS decision to an ALJ would be entitled to hire legal counsel if they wish. Likewise, SSA would employ a legal representative to define the legal merits of the DDS decision. Each side would present legal briefs in support of their position, rather than appearing in person, and the ALJ would make the decision based on review of the claim file and the legal briefs. If necessary, the ALJ could be permitted to request that both sides appear in person but this should be only for rare circumstances. Unless the law was incorrectly applied, the DDS decision would be affirmed. Any appeal of the ALJ decision would be made to the Social Security Court and either side could appeal.
The proposal is predicated on the assumption that sufficient staffing and resources would be made available to the DDSs. It is also predicated on the need for SSA to clearly define the elements that will satisfy the process unification initiatives. It is critical that SSA should provide clarification of what steps must be followed and provide the funds necessary. To minimize the need for additional resources, we believe the process unification rulings should be modified in accordance with the recommendations that have been proposed by various workgroups. Failure to adhere to this recommendation could result in the likelihood of additional lawsuits throughout the country that will make it mandatory for DDSs to adhere to regulations for which they are not funded. Such a situation would have serious consequences for the ability of the DDSs to provide good customer service and also meet the requirements established by the courts.
Elimination of the Five Month Waiting Period
The membership of the National Association of Disability Examiners (NADE) would like to go on record as asking the Social Security Administration and the Congress to eliminate the five month waiting period for Title II disability claimants.
NADE is a professional association whose membership includes disability examiners, physicians, psychologists, attorneys, federal and state administrators, disability hearing officers and support staff personnel. We believe that this diversity of our membership, as well as our hands on experience and familiarity with SSA and DDS operations, enables our association to offer a perspective that is both unique and informed.
Federal statutes currently require that claimants who file for disability benefits under Title II of the Social Security Act must wait five full calendar months from the onset of their disability before they can begin to receive cash benefits. For many, if not most, of these claimants, this waiting period can create severe financial hardship. The members of NADE believe that it is time to examine the possibility of eliminating the waiting period.
In its strategic plan, the Social Security Administration has declared its mission to be: “To promote the economic security of the nation’s people through compassionate and vigilant leadership in shaping and managing America’s social security programs.” In light of this mission statement, the members of NADE believe now is the appropriate time for vigilant leadership to shape and manage the disability program so that the disabled worker can receive cash benefits at the earliest possible moment.
In FY 1998, there were a total of 608,131 disability claims allowed under Title II. The average monthly disability benefit for these Title II claimants was $733.00. The average compensation of $3665.00 that would have been paid to these claimants had there been no waiting period would have had a dramatic impact on the quality of their medical care and their quality of life. The total cost estimate of nearly $2.2 billion for FY 1998, or in any subsequent year, would be reduced by savings in administrative costs and by subtracting the Title XVI (Supplemental Security Income, or SSI) benefits that are paid to the small percentage of Title II claimants who filed a concurrent Title XVI claim and were found to be eligible to receive these benefits during the Title II waiting period.
There are a variety of possibilities that serve as sources of potential revenue to support the elimination of the waiting period. While it is unlikely that any single potential source would provide all the revenue needed to support the elimination of the waiting period, the use of several of these sources certainly make the prospect more likely. Potential sources include, but certainly are not limited to:
The current actions by SSA to revise the disability program to make it more effective and cost efficient.
The renewed emphasis by SSA on the continuing disability review (CDR) process. This could also include an examination of the Medical Improvement Review Standard and its continued use and effectiveness.
The current emphasis by SSA and the Congress on return-to-work initiatives.
Increased success by SSA’s Office of Inspector General in identifying fraud and recovering monies that were fraudulently obtained.
The members of NADE believe that the waiting period serves only as a public relations disaster for the Social Security Administration. It fosters a perception that SSA is denying cash benefits to disabled workers when they need these benefits the most. This is especially true for claimants who suffer from a terminal illness and have a short life expectancy.
The proposal to eliminate the waiting period can be achieved incrementally. The waiting period could be reduced to four months, then later to three, and so on. A cost analysis at each incremental step could show the specifics of the financial impact of each reduction and how much revenue is needed to pay for each reduction and where the revenue could be obtained. The incremental process of eliminating the waiting period could be slowed if sufficient funds were not available to pay projected costs.
Therefore, NADE believes that the financial risks involved in eliminating the waiting period are minimal and are far outweighed by the benefits to both the claimant and to SSA’s mission to promote economic security.