Statement of Marty Ford, Co-Chair, Social Security Task Force, Consortium for Citizens with
Disabilities Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means June 15, 2006 Chairman
McCrery, Representative Levin, and Members of the Subcommittee, thank you for
this opportunity to testify on Social Security’s improved disability
determination process.
I am a member of
the public policy team for The Arc and UCP Disability Policy Collaboration,
which is a joint effort of The Arc of the United States and United Cerebral
Palsy. I am testifying here today in my role as Co-Chair of the Social
Security Task Force of the Consortium for Citizens with Disabilities (CCD). I
also serve as Vice-Chair of CCD. CCD is a working coalition of national
consumer, advocacy, provider, and professional organizations working together
with and on behalf of the 54 million children and adults with disabilities and
their families living in the United States. The CCD Social Security Task Force
(hereinafter “CCD”) focuses on disability policy issues in the Title II
disability programs and the Title XVI Supplemental Security Income (SSI) program.
Let me
begin by applauding Commissioner Jo Anne Barnhart for establishing improvement
of the disability determination process as a high priority during her tenure. The
problems in the disability determination process have evolved over time and are
not easy or simple to resolve. Her placing a high priority on improving the
system for people with disabilities required dedication and unwavering
commitment of her time and critical resources.
In
addition, we commend Commissioner Barnhart’s work in making the Disability
Service Improvement (DSI) design process an open one. She has sought the
comments of all interested parties, including beneficiaries and consumer
advocacy organizations, in response to her initial draft and to the Notice of
Proposed Rulemaking. She and her staff have listened to disability community
concerns and addressed many of them through changes in the final regulations.
We do not agree with all of her decisions, but believe that she has made every
effort to understand our perspective and to make her decisions in a fair
manner.
We also appreciate
Commissioner Barnhart’s commitment to continue working with us as the final
regulations are rolled out to ensure proper implementation and to make
corrections, as necessary, where there are unintended harmful impacts on
claimants/beneficiaries.
We thank the
Subcommittee for its continuing oversight of these important changes to the
disability determination process.
There are
numerous areas in the new disability determination process which need to be
monitored and studied to determine whether implementation is going as planned
and whether there are any unintended consequences from some of the new
policies. I highlight the major implementation issues as we currently see them
below. Of course, we will continue to raise with the Commissioner and with you
any new issues which may arise in the future as implementation proceeds.
As you know, the
new regulations will become effective on August 1 in Region 1 (Boston),
covering Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Commissioner Barnhart has indicated her intention to roll out these changes gradually,
monitoring implementation in the Boston region for at least one year before
expanding the changes to other regions. We believe that this provides an
important opportunity to ensure that implementation is occurring as intended
and/or to make corrections to the system to ensure proper implementation.
ELECTRONIC
FILES
As you know, the
success of the new Disability Service Improvement process is highly dependent
on the quality and capacity of the electronic system that will ultimately
handle all disability claims in the Social Security Administration. Known as
“eDib”, this system will make it possible for people in different areas of the
country to work on a case at the same time and it will make it possible to
eliminate delays caused by loss of case files and from physically sending case
files from one location to another. The success of the full implementation of
the DSI process will depend on the success and efficiency of the eDib system.
Implementation
Issues:
Will claimants/representatives
have early access to the electronic files and to new materials added to the
files? To know what is in the record at any given point during the process, we
believe that optimum meaningful access will ultimately require secure online
access with a “read-only” capacity. Will this be available to
claimants/representatives and, if so, when? In the interim,
claimants/representatives will need immediate access to information in the file
at each administrative level.
Will
claimants/representatives be able to obtain hearing recordings immediately
after the hearing (particularly if the claimant first acquires a representative
after the ALJ hearing)?
SSA should ensure
protection of original documents, which are valuable and sometimes
irreplaceable evidence, by requiring that exact, unalterable electronic copies
of all originals be permanently maintained in the electronic folder. SSA
should track whether claimants/representatives experience any problems with
having evidence included in the electronic record.
MEDICAL AND
VOCATIONAL EXPERT SYSTEM
The rules call
for the establishment of a new Medical and Vocational Expert System (MVES)
which will provide expert assistance to adjudicators, especially at the
reviewing official (RO) and administrative law judge (ALJ) levels of review.
The MVES will be composed of the Medical and Vocational Expert Unit and a
national network of medical, psychological, and vocational experts who meet
qualifications set by the Commissioner.
Implementation
Issues:
SSA should track:
- The experience of ROs
and ALJs with obtaining expert opinions from MVES, including SSA’s procedures
for ensuring that different experts are used at different levels of review for
a claimant’s case.
- How MVEU handles
cases where the claimant has multiple impairments.
- Use of MVEU for
requesting Consultative Examinations.
- Inclusion of treating
sources as accepted consultative examiners.
In developing
criteria for medical and vocational experts, SSA should ensure that:
- Experts are actively
practicing and knowledgeable about the issues, including those requiring a
local perspective.
- Criteria for
inclusion in the national network are made public.
- Credentials of
individual experts are made available to claimants/representatives, for example,
through a secure, online source.
SSA
should expand the range of expertise available to adjudicators, including
occupational therapists, nurse practitioners, physical therapists, registered
nurses, psychiatric social workers, and others. Since many of the Listings
have a functional component and over half of adult cases are decided on the
Listings, such experts, who are trained to evaluate functional limitations and
their impact on the ability to work, can help the adjudicators make better
decisions.
INITIAL
DECISION
As Commissioner
Barnhart has pointed out many times, it is critical that there be better
development of evidence at earlier stages of the review process. Success in
this area is intended to reduce the demand for further review of cases through
the appeals process.
The quality of
the information/evidence developed for the record will have a significant
impact on whether SSA will be able to make the correct decision earlier in the
process – one of the Commissioner’s key goals for DSI. Asking focused
questions of treating sources can elicit information that will be more
effective in helping adjudicators reach individualized decisions than a
scatter-shot approach which results in much missed, but critical, detail.
In addition, the
Commissioner has developed a Quick Disability Determination (QDD) process to
ensure that people who are clearly disabled, for whom readily obtainable
evidence exists, will move through the process very quickly. A predictive
model will identify these claims so that the decisions can be expedited.
Implementation
Issues:
SSA will need to
determine:
- Whether
claimants/representatives are assisted to understand the disability process and
what types of evidence need to be obtained.
- Whether providers are
given understandable information about what information is needed for
adjudication of the claim and whether the Disability Determination Service
(DDS) and the RO obtain individualized evidence from the treating sources.
For the QDD
process, SSA should track the experience of cases where the QDD unit cannot
make a fully favorable determination to ensure that the cases return to the
normal DSI process without any adverse consequences to the claimant.
SSA should
collect data to indicate how the QDD process compares to decisions of presumptive
disability and the TERI (terminal illness) cases.
SSA should
collect data on the implementation of the QDD provisions and the predictive
model: how many people go through the process; how many are allowed; what
impairments they have; etc.
Will the predictive
model for the QDD step be public?
FEDERAL
REVIEWING OFFICIAL
The federal
Reviewing Official level is new in the adjudicatory process. As such, there
are many questions about implementation. The RO review will be the first step
in the appeals process for claimants. It will also be the first federal level
of review for the claimant. Further, it is intended to address the often-raised
issues about consistency of decision-making across the country. The RO will
not conduct a hearing, but rather will review the developed record and will
further develop evidence, as necessary. The RO is a key figure in ensuring
that evidence is fully developed and is given subpoena power to gather
evidence. The RO level carries a heavy burden in the new DSI and we urge SSA
to pay close attention to its careful implementation.
Implementation
Issues:
SSA should ensure
proper notification of the right to representation and assess whether the
earlier notice is resulting in more representation and better development of the
record before claimants reach the ALJ level.
SSA must ensure
that the requirement to consult with MVEU does not direct a certain type of
decision regardless of the individual circumstances. Also, SSA should track
whether the RO’s required consultation with the MVES results in unreasonable
delays in reaching a decision.
SSA must ensure
that the claimant can submit evidence up to the time the decision is issued.
SSA should track
experience with:
- Review by ROs in a different
part of the country from where the claimant lives.
- Whether nationwide
consistency (reduction of state-by-state disparity) has improved.
- Processing time at the
RO level.
SSA should track
the RO use of subpoena power to ensure that evidence is fully developed.
ADMINISTRATIVE
LAW JUDGE
The
administrative law judge (ALJ) level is not new and the claimant’s right to a de
novo hearing before an ALJ has been preserved. However, there are numerous
changes in the procedures, including timeframes for submitting evidence and
scheduling hearings. In addition, the ALJ level attains new importance since
it may be the claimant’s last step in the administrative process (except for an
ALJ’s dismissal of a hearing), before filing in federal court, if the Decision
Review Board (DRB) does not select the case for review. With these changes,
SSA’s vigilance in monitoring implementation will be critical.
Implementation
Issues:
SSA should track
experience with the scheduling of hearings:
- Track how many
claimants waive notice of 75 days.
- Track claimant
experience with objections to time/place of hearing and issues for the hearing.
- Track experience with
the rule for submitting pre-hearing evidence 5 business days before the
hearing, including tracking denials of a request to submit evidence after the 5
days.
- Track post-hearing
evidence submission and decisions about whether the relevant criteria are met.
- Track whether
claimants receive a hearing date within 90 days of filing the request for
hearing.
Regarding
evidence development, SSA should track:
- How many claimants
are still missing key evidence from their files when they reach the ALJ level
and how that compares to the previous system.
- Whether ALJs meet their
own obligations to develop evidence.
Regarding the exceptions
for submitting evidence within five business days of the hearing or later, SSA
should:
- Ensure ALJ
understanding of the requirement to find that the exception criteria are met in
delineated circumstances.
- Ensure ALJ understanding
of “unavoidable” to include claimant’s/representative’s inability to acquire
evidence from third parties (such as treating source, lab, hospital, etc.).
- Ensure ALJ understanding
of the difference between “reasonable possibility” that evidence will “affect”
the outcome before the decision is rendered and “reasonable probability” that
evidence will “change” the outcome after the decision has been issued.
- Assess whether ALJs are
properly applying these standards. If not, what will SSA do to rectify the
situation?
SSA should ensure
that the findings integrated template (FIT) does not direct decisions in any
particular way.
SSA must address
how it will ensure a safety net for claimants who experience ALJ bias or
misconduct, including SSA’s use of the Merit Systems Protection Board
procedures.
DECISION
REVIEW BOARD
The Decision
Review Board is a new entity which follows the ALJ level and replaces the
Appeals Council. However, the DRB will be much different than the current
Appeals Council. Claimants will have no right to appeal to the DRB. They may
submit a written statement upon the request of the DRB or within 10 days of
notice that the DRB will review the case. The timelines for decisions by the
DRB, the deadlines for filing in federal court, the timelines for an appeal of
an ALJ’s dismissal of a hearing, and the relationship among all these may prove
very confusing to claimants and their representatives.
Since the DRB
step is vastly different from the Appeals Council step and the impact on the
federal courts is unknown, SSA’s careful monitoring of this step in the Boston region will be critically important. For the new DSI process to be successful, SSA
should be prepared to address major problems immediately and to consider
changes and adjustments as necessary if the impact on claimants and/or the
courts is detrimental.
Implementation
Issues:
SSA should
ensure that claimants/representatives receive clear guidance on the timelines
for: submitting a written statement upon the request of the DRB or within 10
days of notice that the DRB will review the case; decisions by the DRB; the
deadlines for filing in federal court; the timelines for an appeal of an ALJ’s
dismissal of a hearing; and the relationship among these deadlines.
During the time
in which SSA is reviewing 100 percent of the cases at the DRB level in the Boston region, we think it is important for SSA to:
- Assess the role of
the predictive model in detecting the appropriate cases for review – can the
model predict the full range of error-prone cases? SSA should examine (1) the
cases that the DRB would have reviewed (using the predictive model) against (2)
those cases where a significant change was made based on the 100% review but
where DRB would not have reviewed the case based on the predictive model.
- Assess the role of
the claimant’s statement in highlighting the issues for DRB review. SSA should
assess the predictive model both with and without the claimant’s statements of
the case. The results may indicate whether SSA needs to re-assess the role of
claimant statements and whether they are critical in raising issues that the
predicative model fails to recognize.
Track the
results of the 10-day limit on submitting written statements to the DRB,
including where a representative or claimant is unavailable during that time, and
what impact there may be on the claimant’s case if no statement is filed.
Where a
representative is new to the claimant, ensure that the representative can get a
copy of the hearing recording and the record before the ALJ as soon as possible
so as not to miss the 10-day limit for submitting a written statement, or to
provide an extension of time.
For those cases
which are filed in federal court in the Boston region, undertake a thorough
review of the case to determine whether there has been a failure of the new system
anywhere along the line.
Ensure
continuation of the Appeals Council until the DRB has proven successful in the vast
majority of cases.
Track
notification of claimants regarding their rights to appeal to federal court.
Other questions:
- How and when will the
predictive model be updated? Will the predictive model be made public?
- How will SSA address
the Appeals Council’s current role in resolving non-disability issues?
FEDERAL COURT
The impact on
the federal courts will be a key factor in determining whether the new DSI
process is successful. Some of the issues are discussed above regarding the
DRB.
Implementation
Issues:
In addition to
those issues described above regarding the DRB, SSA should:
- Track its experience
regarding the number of cases going to federal court to determine whether there
is an increase or a decrease.
- Track the number and
proportions of SSA’s requests for voluntary remands of cases appealed to
federal court. Assess the rationale for these requests for voluntary remands
and determine whether an earlier failure in the system created the problem.
OTHER/OVERALL
ISSUES
There are
several procedures/practices which overarch several levels of review. Theses
include payments and reimbursement rates to providers; differences in Circuit Court
decisions; the new in-line quality assurance systems and feedback loops; issues
regarding redaction; operating procedures; and SSA’s demonstration authority.
Implementation
Issues:
To address these
issues, SSA should:
- Ensure that reimbursement
rates (ex.: for consultative examinations, copies of records, etc.) are in line
with actual costs to providers.
- Ensure that quality
assurance feedback loops operate as intended and do not create pressure on the
level below to make a certain type of decision regardless of evidence (undue
influence).
- Clarify that the requirement
that evidence not be redacted applies only to redactions by the
claimants/representatives, not to redactions made by the provider (treating
physician, lab, hospital, or other treatment source). Redactions that are made
by such third party outside of the control of the claimant/representative should
not disqualify that evidence for the claimant.
- Where there are
acquiescence rulings or differences among the Circuit Courts on an issue, ensure
that decision-makers who operate nationwide (or who are not located in the same
area as the claimant) apply decisions and rulings properly in the affected
regions/states.
- Ensure that the operating
procedures are written in a way to ensure the effective and efficient
implementation of the final regulations with no unintended consequences or
burdens falling on claimants.
- Make operating
procedures available to claimants and representatives and include guidance on
situations they will newly encounter (such as how to send evidence to the RO
assigned to the case).
- Conduct thorough
assessments of the demonstration programs (provision of interim minimum health
benefits, waiving 24-months waiting period, medical home centers, etc.).
SSA’S
LIMITATION ON ADMINISTRATIVE EXPENSES
I would be
remiss if I failed to note the importance of fully funding SSA’s Limitation on Administrative
Expenses (LAE).
To meet the
needs of claimants and beneficiaries during the hurricane emergencies in 2005,
SSA was required to redirect $38 million from a budget that had already been
reduced $300 million below the President’s request for this fiscal year (FY’06).
A supplemental appropriation of $38 million, included in the conference report
of the supplemental appropriations bill, will help to restore the loss of
resources due to the hurricanes so that SSA may continue addressing its
substantial on-going workload.
SSA must have
the resources to handle its day-to-day work. SSA is a well-managed agency and does
a good job with the resources it has been appropriated. However, we have been
concerned, and continue to be concerned, that SSA does not have adequate
resources to meet all of its current responsibilities, including those of
importance to people with disabilities. This includes the need to regularly
conduct continuing disability reviews (CDRs). As I understand, the House
Appropriations Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies has reported a bill that would reduce the President’s budget request
for SSA’s LAE by $201 million, funds which would have been used for conducting
additional CDRs. We are hopeful that the full House will ultimately approve a
bill that restores the President’s full request so that SSA can continue its
important work on the disability programs, including conducting CDRs.
ADDITIONAL CONGRESSIONAL
ACTION NEEDED
Congress should
extend SSA’s statutory Title II demonstration authority. Its authority was
extended in the Social Security Protection Act of 2004 (P.L. 108-203). The
extended authority expired on December 18, 2005, and no new demonstration
programs can be initiated.
Conclusion
As stated in our
testimony before this Subcommittee in September 2005, while justice delayed can
be justice denied, justice expedited also can result in justice denied. As
organizations representing people with disabilities, we strongly support
efforts to reduce unnecessary delays for claimants and to make the process more
efficient. At the end, the goal is to have the right decision, not just a
legally defensible decision. We believe it is necessary to examine all of the
issues outlined above to assess whether there are any unintended results and to
ensure appropriate revisions in a timely manner.
We look forward
to continuing to work with Commissioner Barnhart and this Subcommittee as
implementation of the new DSI process unfolds.
ON BEHALF OF:
American Association of People with Disabilities
American Association on Mental Retardation
American Council of the Blind
American Network of Community Options and Resources
American Occupational Therapy Association
Association of University Centers on Disabilities
Council of State Administrators of Vocational Rehabilitation
Bazelon Center for Mental Health Law
Inter/National Association of Business, Industry and Rehabilitation
National Alliance on Mental Illness
National Association of Councils on Developmental Disabilities
National Association of Disability Representatives
National Disability Rights Network
National Multiple Sclerosis Society
National Organization of Social Security Claimants’ Representatives
National Organization on Disability
National Rehabilitation Association
NISH
Research Institute for Independent Living
The Arc of the United States
Title II Community AIDS National Network
United Cerebral Palsy
United Spinal
Association
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