OF THE NATIONAL ASSOCIATION OF DISABILITY EXAMINERS
Who We Are
NADE is a professional association whose mission is to advance the art and science of disability evaluation and to promote ongoing professional development for our members. The majority of our members work in the State Disability Determination Service (DDS) agencies and are responsible for the adjudication of claims for Social Security and Supplemental Security Income disability benefits. Our membership also includes personnel from Social Security’s Central Office and its Field Offices, claimant advocates, physicians, attorneys, and many others. Our diversity, our immense program knowledge, and our “hands on” experience, enables NADE to offer a perspective on disability related issues that is unique and, more importantly, reflective of a pragmatic realism.
The current disability claims process presents a four tiered approach that is challenging to the majority of claimants seeking help. An initial application is adjudicated by the DDS. If denied, the claimant may request a reconsideration of their claim. This is also adjudicated by the state DDS. Subsequent appeals would ask for a hearing before an Administrative Law Judge and review by the Appeals Council. Further appeals are made in federal court. Initial and reconsideration decisions are subject to quality review in the DDS and in SSA’s regional offices. Counting waiting times, hand-offs, etc., claimants currently will wait an average of 1153 days, more than three years, for a final decision if their claim is appealed through the Appeals Council.
Is this the kind of service we should expect from our government? Do we really want to tell people, who believe they are disabled and unable to work, that if they can find a way to feed, clothe and house themselves, and their families, without an income, for more than three years, we will then give them a decision? I doubt anyone believes this is the level of service we should be providing. Anyone who does should be made to wait three years for their next paycheck.
What’s Wrong with the Current Process?
The current disability claims process presents many problems. These are the same problems that have been studied by the Social Security Administration and this Subcommittee for more than a decade. To date, affordable solutions have remained elusive. The complexity of the regulations and rules that govern the disability program and the multi-layer appeal process tends to discourage many claimants from utilizing all of their appeal rights. Consequently, SSA has been trying to redesign the disability claims process. For the most part, these efforts have been unsuccessful. The problems that persist are numerous:
Timeliness of decisions
Increasing administrative costs
Solvency of Social Security disability trust funds
Disparity in DDS and ALJ allowance rates
Concerns regarding public confidence
Poor customer service throughout the claims process
Inadequate training of staff
Clearly, there is a need for the agency to move forward with implementing a new disability process that is practical and affordable. Because of the expected increase in the number of Social Security and Supplemental Security Income disability claims over the next decade, improving the disability process is critical to the agency’s mission. SSA will also have to discover a way to incorporate into its assessment of eligibility for disability benefits a determination of what is actually needed to return the claimant to work. SSA will need to develop more aggressive and more comprehensive return-to-work strategies that focus on identifying and enhancing the work capacities of claimants and beneficiaries.
SSA’s most ambitious efforts to redesign the disability claims process were introduced in 1994. In the ensuing years, SSA tested many ideas, including the Full Process Model (FPM), the Disability Claims Manager (DCM), and others that, after lengthy testing, proved to be inadequate to meet the demands for service and affordability. NADE raised practical concerns about the feasibility of many of these proposals but we supported testing to establish whether or not the ideas would work. Our emphatic condemnation of the Full Process Model and concerns over the administrative costs of Prototype did cause SSA to step back from its plans to roll these designs out nationally.
SSA launched its most recent effort to redesign the disability claims process in October, 1999. In so doing, the Agency ignored warnings from NADE, from the General Accounting Office, and from others, that this test was too large and committed too much of the Agency’s resources.
As the Prototype experiment was gradually refined in recognition of its spiraling administrative costs, it became clear that SSA had misjudged its data and that prototype did not represent the future of the disability process. It was clear that the attempt to reduce the four tiered appeal step to two was not a viable approach. Administrative Law Judges were not prepared for the tremendously heavy caseload that resulted from so many claimants choosing to appeal initial denials. Without an intermediate appeal step, Administrative Law Judges, already faced with a backlog of cases, were quickly overwhelmed. The Prototype experiment clearly established the need for an intermediate appeal step between the initial decision and the hearing before the Administrative Law Judge.
Prototype also produced one idea that did show promise for the future – the concept of a Single Decision-Maker (SDM). By eliminating the need for medical consultants to “sign off” on every case and allowing qualified disability examiners to make decisions on cases they felt comfortable deciding, the SDM became the one positive result of Prototype. It was successful in increasing employee satisfaction for the disability examiner and the medical consultant and, more importantly, there was no decline in the quality of the decision.
NADE Proposal For A New Disability Claims Process
After more than a decade of redesign efforts, SSA still does not have an acceptable new disability claims process that will enable the Agency to handle the expected significant increase in the number of claims it will receive in the next decade. It does not have in place a new process that will enforce the need for fair and timely decisions, coupled with the need to maintain public confidence that only the truly disabled are awarded benefits. NADE accepted the challenge to develop a concept for a new disability process that would achieve these goals. A copy of our proposal, published over three months ago, is attached to our statement today. What we desired to achieve with this proposal was to direct attention on a concept for a claims process based on two ideas:
What is fair for the claimant?
What can SSA afford?
Our experience and expertise, as the only professional association with the membership base that enables it to view the entire disability process, was critical to our ability to develop this concept for a process that, not only would improve the service provided to the claimant, but would also be affordable. 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. Judging the impact that a heart attack or stroke has on a person’s ability to function in a work setting is a medical decision and is best made by those who have been trained to do so.
Reviewing disability determinations to determine if the law was correctly applied is a legal decision and is best left to those who are especially trained to make those decisions. American jurisprudence would not accept a legal decision made by a lay person untrained in the law. Likewise, America’s disability programs should not have to accept medical decisions made by individuals who are not trained to do so.
NADE’s proposal affords the claimant the right to a medical hearing regarding their eligibility for disability benefits and a legal review to ensure that the medical decision correctly followed the law. We can hardly see where the argument that the claimant would lose appeal rights has any merit.
There have been arguments presented that hearings conducted at the DDS level would violate the Administrative Procedures Act and would restrict the claimant’s right of appeal. This is clearly not true. The APA guarantees the claimant is entitled to a hearing to ensure that the federal government agency’s decision was made in accordance with the law. This concept is reinforced in the NADE proposal. We fail see how it can be advocated that the right to a medical hearing much earlier in the process would restrict the claimant’s appeal rights.
NADE’s proposal asserts that the record should be closed after the DDS hearing. The Association of Administrative Law Judges has also supported closing the record after the claimant has received a hearing. Because each appeal beyond the DDS is extremely expensive and each new appeal level is looking at a new case, the decisions made on appeal cannot be used to reflect on the decision rendered by DDS adjudicators. There may be an incentive to not cooperate with the DDS. This is why we have proposed closing the record after the reconsideration level. It will add consistency and affordability to the program.
The proposal to close the record simply seeks to incorporate within the disability program a practice common to the American judicial system and most state workers compensation systems. Appeals are made on issues of law and not on a new case. In NADE’s proposal, if claimants believe that new and material evidence does arise after the DDS hearing, this evidence can be reviewed in the DDS and, if necessary, the claim folder can be recalled and the file reopened. If the claim is not reopened, the claimant has the option of submitting a new application for disability and including this evidence. This process still provides claimants with faster processing times than currently.
NADE believes that a new disability process should place greater emphasis on the expectation that claimants, and their authorized representatives, must assume greater responsibility for cooperating with all components of the disability claims process. This Subcommittee was advised in March, 1999 by the U.S. General Accounting Office that, “frequent delays in disability proceedings are a significant problem and often attributable to the actions of some disability representatives.” The GAO also reported it had found that disability decision-makers were frustrated by, “…disability program laws that provide numerous opportunities for representatives to submit new evidence in support of their client’s claim throughout the entire process and hold SSA primarily responsible for adequately developing the evidentiary record, even when a claimant has representation.”
There is a growing problem in Continuing Disability Reviews where claimants refuse to cooperate with requests for information and to attend consultative examinations. This lack of cooperation is often encouraged by representatives and we are beginning to see the same lack of cooperation in initial and reconsideration claims, particularly when there is legal representation involved.
Claimants and their representatives should be required to cooperate fully with the decision-makers at each level in the disability process. Consideration should be given by SSA and the Subcommittee to holding claimants and their representatives accountable for their actions in failing to cooperate.
Other aspects of NADE’s proposal call for the elimination of the Appeals Council and the creation of a Social Security Court. The Appeals Council is an unnecessary appeal step. The complexity of disability claims should require that a specialized court, similar to federal bankruptcy and military courts, be created to hear these appeals.
The DDS hearing decision should be defended in subsequent appeals by an individual who can present the merits of the decision. Many will, of course, advocate that this scenario will create an adversarial relationship between the claimant and the Social Security Administration at subsequent appeals. We do not believe this will be the case. Eighty percent (80%) of claims now heard before Administrative Law Judges involve legal representation for the claimant. There is no representation of the government’s decision. Administrative Law Judges can be charged with bias if they are perceived as defending the decision while questioning the claimant. This process is unfair. The Social Security Advisory Board suggested in their September, 2001 report that the government should be represented at the hearing level. We concur with this opinion.
The Electronic Disability Claims Folder
The Commissioner of Social Security recently announced her intent to have an 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 to develop an electronic folder. However, NADE is encouraged by the Commissioner’s commitment to advancing this goal and we support this effort. We caution the Subcommittee, however, that the expected costs will be significant and funding must either be taken from other components within the disability program that are already experiencing financial strain, or be provided as new money. It would be unfair to expect the level of service that has been provided to be maintained if needed funds are diverted to other projects. We should also not forget that performance and training issues that would arise from this new way of doing business have not been addressed. This will require learning and using new tools and this usually has a negative impact on production, as it has for the past several years in Wisconsin where the DDS in that state has been working on a paperless folder pilot for five years.
Training and Resources
The NADE proposal should be tested to determine whether it can work and provide better service delivery to the claimant than the current process. Its success, however, will be contingent on the proper funding and training being made available to each component in the process.
The need for adequate training has never been more critical. Advances in technology make it likely that knowledge in the world will double every two months by the year 2010. Seventy-five percent (75%) of the technology we will use in 2010 has yet to be invented. It is critical that all components within the disability program be provided with the training that will enable them to discharge their responsibilities in the best interests of the claimants who come to us for help and the taxpayers who pay for the service delivery.
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 of allowing disability claimants who should be allowed as early in the process as possible. Our proposal has the potential of making this happen in an affordable and expeditious manner.
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 our proposal for a new disability claims process achieves the goal of providing a well thought out concept that describes how the disability program should operate. It is time to move forward with a new disability claims process that reflects pragmatic reality and offers the best service to the claimant at the best price to the American taxpayer. 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 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 public’s trust and the mission of SSA – “To promote the economic security of the nation’s people through compassionate and vigilant leadership in shaping and managing America’s social security programs.”
At her confirmation hearing last year, the new Commissioner of Social Security 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 the status quo has ceased to provide the level of service those who seek our help have a right to expect. The question we must all seek to answer is, “How will we respond to the need to improve service delivery while recognizing that financial resources have constraints?”
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 by the quality of service provided by SSA. In announcing today’s hearing, the Honorable Clay Shaw, Chairman of this Subcommittee, commented: “Individuals with disabilities, already burdened by the challenges of their illness or injury, are often in desperate need of benefits to replace lost income. They deserve, and should receive, timely and accurate decisions through a fair and understandable process. Our challenge is to thoughtfully and carefully examine the disability determination and appeals process to ensure it meets the needs of individuals with disabilities and their families.” NADE believes the proposal we have submitted for a new disability claims process addresses the Chairman’s challenge.
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.