Advisory of June 7, 2006 announcing the hearing

WITNESSES

Social Security Administration, Hon. Jo Anne B. Barnhart, Commissioner

Association of Administrative Law Judges, Inc., Judge Ronald G. Bernoski

Consortium for Citizens with Disabilities, Marty Ford

Federal Bar Association, Gary Flack

National Council of Social Security Field Operations Locals, Wiltold Skwierczynski

National Organization of Social Security Claimants' Representatives, Sarah H. Bohr

National Treasury Employees Union, James Hill

U.S. Government Accountability Office, Robert E. Robertson, Director, Education, Workforce, and Income Security Issues

Union of American Physicians and Dentists, Richard C. Dann, statement

SOCIAL SECURITY'S IMPROVED DISABILITY DETERMINATION PROCESS

Thursday, June 15, 2006

House of Representatives,
Subcommittee on Social Security,
Committee on Ways and Means,
Washington, DC.

The Subcommittee met, pursuant to notice, at 11:04 a.m., in room B-318 Rayburn House Office Building, Hon. Jim McCrery (Chairman of the Subcommittee), presiding.

[The advisory announcing the hearing follow:]

Chairman MCCRERY.  The hearing will come to order.  Good morning.

Welcome, everyone, to our hearing on the Social Security Administration's (SSA) improved disability determination process.

We last focused on these issues at a joint hearing in September where Members of both this Subcommittee along with the Human Resources Subcommittee provided their feedback to the Commissioner regarding the proposed rule to improve the disability determination and appeals process.

Members from both sides of the aisle praised the Commissioner and the employees of the SSA for their continued, focused, and collaborative efforts to improve service delivery to those with disabilities.

Concerns were also raised, though, that the proposed changes to the system could make what is currently a non‑adversarial administrative process into one that is more legalistic and burdensome for very vulnerable claimants.

In March of this year, another milestone was achieved when the final rule was published, but perhaps the most important milestone is just a few weeks away, when the Agency begins implementing the rule on August 1st in the Boston region.  Then we will start determining whether the changes achieve the desired effect, enabling the right decision to be made as early as possible in the process.

As implementation moves forward, we all know the stakes are high, as disability benefits provide a crucial safety net for those most in need.

Commissioner Barnhart has said she is committed to making sure that the implementation proceeds carefully so that all claims are handled fairly and responsibly.

Today, we will learn how the Commissioner and her staff plan to carry out that commitment.

Following the Commissioner, our second panel will provide their views on the implementation and what we and the Commissioner need to be mindful of as the reforms proceed and expand beyond the Boston region.

Mr. Levin, would you like to make an opening statement?

Mr. LEVIN.  Thank you very much, and I'm really very, very glad we're having this hearing.

You mentioned the importance of this matter for our society, the importance of this program for the disabled.  This affects all of us.

I'm glad that we're having the Commissioner here and a broad range of people and viewpoints on the panel.  I don't think we have anything to fear from a diversity of points of view.

In fact, I think we have a lot to gain from it, and hopefully it will all meld into an improved program, Disability Service Improvement (DSI).

Obviously, no regulation can spell out all the details and anticipate every circumstance, no matter how well they're put together, and the implementation obviously can make or break an initiative like this one.

I think there was widespread feeling about the importance of improving the disability process.  I think we would all agree.

When we look back at the work of our offices, many, many times our offices, especially at home, were contacted because of issues relating to disability, and we know that changes were necessary. We also thought that some aspects of the proposed regulation had some real potential, but there were concerns of others.

So, people got their heads together, and not always together, but in the same room, to talk about this, and we appreciate the effort of you, the Commissioner, and everybody who is here today.

We also appreciate the important role that SSA employees and beneficiary representatives have played in helping to understand this regulation and the challenges ahead, and if I might just add briefly, I think that we very much agree that we need in the Congress to do our part to make sure there's adequate funding, because no matter how well a regulation is put together or its implementation is brought about, there's going to have to be adequate funding.

We're going today to go into the details of the regulation.  One last word.  An essential part of implementation is careful monitoring, and I understand, Commissioner, that you're going to track the results to assure that disability claimants are not harmed, but indeed their needs are looked after, and that there are no unintended results occurring from this and that the changes are going to have the desired effect. I'm sure that you are going to have--continue to have--excellent oversight that you have made sure happens.

We look forward to your testimony, and then the testimony of seven or eight--six or seven--people who are going to join us.

Chairman MCCRERY.  Thank you, Mr. Levin.

Any other Members wishing to make an opening statement may present those in writing and they'll be included in the record.

We do have a rather full second panel, so let's proceed with Commissioner Barnhart.  Welcome once again, and thank you again for the work you've done on this subject and for listening to our concerns throughout the rulemaking process.

You may summarize your remarks in about 5 minutes, and then if you would, take our questions.

You may proceed.

STATEMENT OF HON. JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, SOCIAL SECURITY ADMINISTRATION

Ms. BARNHART.  Thank you, Mr. Chairman, Mr. Levin, and Members of the Subcommittee.

I'm always pleased to appear before you, but today I'm especially happy to be here, because I'm here to report that after three years of incredible effort and cooperation, our new disability determination process is a reality.

For the first time in 50 years, we're making significant changes to the SSA's disability determination process, changes that substantially increase our ability to make accurate decisions in a timely way, and that means better service to the American people.

My written statement outlines the elements of the new process and goes into it in a great bit of detail, but in the interests of time, I'm going to concentrate on how we got to this point.

As you know, it has been a long journey, and this Subcommittee has played an important role in this achievement. So, have many others within and outside SSA, and I want to thank you and everyone who participated, many of them here in this room, from the bottom of my heart.

I'm sure you know that there were people who told us that it would be impossible to make major comprehensive changes to the disability determination process, but we have done it, and we have succeeded because groups involved at every step in the disability process came together in a spirit of cooperation and professionalism.

Throughout this process, there was no finer example of that spirit than Eileen Sweeney.  Sadly, Eileen passed away just a few days ago.

As this Committee well knows, Eileen was a tireless and talented advocate for America's most vulnerable, and we will all miss her insight, her expertise, and most of all, her humanity.

When I announced my new approach, I began a massive outreach effort to obtain and give thoughtful consideration to all comments on the current disability system and on our proposed improvements.  I've acted upon my commitment to listen to you, to the interested parties and groups in both the government and the private sectors, and to the claimants and beneficiaries who rely on us to provide the best possible service.

During the official comment period on the Notice of Proposed Rulemaking (NPRM) alone, we received almost 900 comments, 883 to be precise.  At the hearing last September on the proposed rule, Members of this Committee urged me to carefully consider the issues that were raised and the comments.

I want you to know, Mr. Chairman, that I personally read many of the comments in full myself, and I worked with my senior staff to review and discuss all of the comments.

We listened and we made changes in response.  As a result, I believe the disability determination process that we will be implementing in our Boston Region on August 1st is both different and better than the original blueprint that I discussed with you on July 24, 2003, and the process that was outlined in the NPRM last July.

We were aware that many commenters perceived our proposed rule as favoring administrative efficiency over fairness, especially with regard to timeframes for submitting evidence before a hearing.  When I testified last fall, this Subcommittee articulated those same concerns, as the Chairman pointed out.

I want to assure you that that was not our intent.  I trust that was made clear by the substantive changes that we made in the final regulation.

Specifically, we addressed the concerns about giving claimants sufficient time to submit evidence in three ways.

First, we give claimants at least 75 days notice before a hearing instead of the 45 days provided for in the NPRM.

Second, the final rule allows claimants to submit evidence up to five business days before the hearing instead of the 20 days in the proposed rule.

Finally, we expanded the range of circumstances in which an Administrative Law Judge (ALJ) will accept evidence that does not meet the five‑day deadline.

Mr. Chairman, as I look back over the long road to the changes that we will begin implementing in just a few weeks, and I reflect on the spirit of cooperation, professionalism, and dedication to serving the public that has really permeated this entire process and been demonstrated by the men and women of Social Security, our Disability Determination Service (DDS) agencies, advocacy groups, and Members of Congress, I'm absolutely convinced we can make this happen.  I am also convinced that the American public will benefit greatly.

I assure you that we will continue the dialogue that has served this process so well, because this is not just about getting it done, it's about getting it done right.

You have my assurance that we're doing all that we can to make sure that we implement in an orderly and timely manner.  In typical fashion, the hardworking men and women of SSA and our DDSs have pulled together and they're doing everything that must be done for us to move forward.

In closing, I want to publicly thank you again for your advice, insight, and support that have meant a great deal to the Agency and to me personally. I know that we can count on your continued support and advice as we make DSI a reality.

Thank you, Mr. Chairman.  I'll be happy to try and answer any questions that the Members might have.

[The prepared statement of Ms. Barnhart follows:]

Chairman MCCRERY.  Thank you, Commissioner Barnhart, and thank you for outlining those changes that you made in response to our concerns and concerns expressed by others.

I mentioned in my opening remarks that on August 1st you're going to start not really a pilot program but a kind of a pilot program. You're going to start in the Boston Region and operate this new system there for one year.

What do you hope to learn in that first year? Are you going to try to take things that you learn to modify, at least guide the way for the national rollout?

Ms. BARNHART.  I appreciate that question, Mr. Chairman.  If I may, I'd like to describe what I call a dynamic management approach to ongoing evaluation and implementation.

There are going to be three facets to what we're going to be monitoring during that first year in particular, and through the whole process, but you asked about the first year.

Specifically, first of all, we're going to be looking at the outcomes.

By that, I mean how many allowances are there, how many denials are there, how soon in the process is it happening, are we really shortening the processing times as we thought, what's happening with the waterfall of cases as a claim moves through each step, are we really making the right decision earlier in the process as we have committed to, what is the effect on the Federal courts, and what is the situation with remands?

All those specific things that we look at now in the system, we're going to be looking specifically in the new process as to how those compare to what's happening today.

Secondly, we're going to be looking at how we are actually implementing the regulation in the way we said we were going to?  In other words, are we doing everything we said. If there's an issue and something doesn't seem to be playing out the way we anticipate?  Obviously, if we're not implementing it the way we said, we'll be going back to make sure that we do, and taking steps to correct that.

Then finally, if we look at the outcomes and we're implementing the way we said, and we're not getting the results that we anticipated in terms of the right decision as early in the process as possible, then we will certainly be open to revisiting strategic assumptions that we made in crafting this process to begin with.

It's one of the reasons I think the phased‑in rollout that we have is important.  In fact, we're starting in a smaller region, the Boston Region, a region that has less backlogs, quite frankly, in the hearing offices and will have none by January of this coming year because we're working to move them down.

So, there are a lot of things we're putting in place so that we can get a nice, clean measure of what the situation is going to be in Boston, and we are fully prepared to take action as we move along.

So, we will not be doing a retrospective evaluation, waiting a long time and looking back.  We'll be doing it on an ongoing basis, and will certainly be happy to provide information to this Committee as that process plays out.

Chairman MCCRERY.  Have you thought about enlisting some outside review organization to look at the results of the first year?

Ms. BARNHART.  We did consider that, but because we're not doing an evaluation in the sense of waiting five years and then doing a report on it, we really thought that the dynamic approach we're using, that wasn't necessary for us, and it really wouldn't work, because by the time we got the report, we hopefully would have taken action to correct it.

The other thing I would point out is, as you well know, the U.S. Government Accountability Office (GAO) who is testifying on the panel that follows me at the request of this Committee, is already looking at how we're doing in terms of implementing the implementation, and I appreciate that, and I really appreciated the GAO report.  I read it earlier this week.

I would fully anticipate that that kind of outside oversight would be taking place probably at the behest of this Committee, if not, by GAO's own doing.

Chairman MCCRERY.  Okay.  In the hearing last, year, we talked a little bit about the possible impact on the caseloads of the Federal district courts.

Do you have a plan to measure the impact of this change in the Boston Region?

Ms. BARNHART.  We do.  In fact, what we're hoping to do is to mitigate any, untoward effects, as far as that goes.

I have worked very closely, and members of my staff have worked very closely with the staff of the Judicial Conference Subcommittee for Disability.  Judge McKibben is the head of it.  He and I just talked, in fact, just a few weeks ago.

We've had regular contact, trying to make sure we're addressing the issues that they have raised throughout this process.  Obviously, they don't want a deluge of cases hitting the Federal courts.  We don't, either.  We believe if the process works the way we've designed it, we'll see less cases going to the Federal court.

Obviously, we can't stop people from taking cases to Federal court.  What I would hope is that we would see fewer meritorious cases going to Federal court because of us doing our job earlier in the process, in other words, that we would see less remands from the court, because we would have done the right job to begin with, we would be pulling back less cases ourselves through what we call voluntary remands.

To ensure that we are doing the best job we possibly can in Boston, we're going to be reviewing 100 percent of the decisions at the Decision Review Board (DRB) before they go on, so that will allow us to actually validate the model that we're going to use as we roll out, for selecting the cases that we would refer to the DRB, and by the way I would point out again it's going to be an equal percentage of allowances and denials, not just one or the other.

Chairman MCCRERY.  Lastly, before I turn it over to Mr. Levin for questions, you mentioned the fact that the Boston Region is smaller, and they don't have as much backlog. We're going to have a witness later that's going to talk about how in the Boston Region favorable initial and reconsideration decisions are higher in the Boston Region than nationally.

Does that concern you, that you're using a region that maybe is already a little further along the path to reform, so to speak, or better outcomes.

Ms. BARNHART.  Well, let me say this.  I was just talking to some of the members who are--the staff that are here with the witness from GAO--and telling them, what I may have told this Committee before, that I came to work in Washington in 1977, and the very first GAO report I ever read was that State allowance rates vary in the DDS disability determinations.  That was almost 30 years ago.

It's interesting, it was the first report I read, and I'm here testifying on issues related to that today.

The whole point of creating the Federal reviewing official (FedRO) and creating a centralized quality system as opposed to a regionally based quality system was to ensure consistency across the country, State to State, region to region.  We're not going to be doing things based on region or based on State.

In other words, the idea is ultimately when we have this fully implemented, reviewing officials will be looking at cases from all over the country, they won't be doing a particular State.  Our quality reviewers will be looking at cases from all over the country, they won't be reviewing a particular State.  It should take out any bias that might exist from looking at it on a solely State and regional basis.

In terms of Boston itself, as I said, I chose it for a number of reasons.

First of all, it seems to be less litigious.  Less cases go forward to Federal court, and that was important, because obviously we wanted a manageable number, since we're going to review 100 percent of the cases, and they do have a higher allowance rate.

I believe that the approach we're taking with the FedRO, having that Federal review at that very next step, as opposed to the DDS recon, is going to equalize any effects of that.

Chairman MCCRERY.  So, you think that the new process you're going to eventually have in place nationwide will actually work to smooth out the differences in allowances among the States?

Ms. BARNHART.  I think it will, because we're not going to have--obviously, when you have individuals doing a review, even though you try and make it consistent, you have a certain human variance.

Then you exacerbate that when you have the people in a certain area not under centralized management, where they're getting exactly the same guidance every single day.

Then finally, they become familiar with a particular State.

I think that is just human nature, and the way we do work, it builds certain biases into the system, and that was a real important part of the design, to make sure that we don't have that happening, to equalize that.

Chairman MCCRERY.  Okay.  Good.

Mr. Levin.

Mr. LEVIN.  Let me follow up on that.

You know, sometimes we complain that the opening statements are too long, except if it's Alan Greenspan I guess, but in your case, I'm not sure we gave you enough time.

There are so many of us here.  I think the turnout indicates the importance and the interest in this.

So, the discussion of the FedRO, I think, highlights the need for you to describe for all of us, for all of us assembled here, for those who will be watching, what the two or three or four major problems were and how this addresses them, the final regulations.

I think we need to go back a bit ‑‑

Ms. BARNHART.  I'll be happy to.

Mr. LEVIN. --and have you pick them out and how this addresses it, how you think the FedRO system will work, et cetera, et cetera.

Ms. BARNHART.  Okay.  First of all, I think in terms of that issue of consistency, Mr. Levin, I appreciate this opportunity, because to me the FedRO is actually really the linchpin of the new process, so I really appreciate this opportunity to elaborate.

I think, as I said to the Chairman, I believe from a consistency perspective, the fact that we'll have Federal employees, not people from 55 different jurisdictions, who are taking a look early in the process from a consistent perspective, is going to be extremely important.

Secondly, from the claimants' perspective, right now, the DDS reconsideration is viewed largely as a rubber stamp of the initial DDS decision.  If you ask, there are people here representing claimant representatives and claimant advocacy organizations, and I think most of them would tell you that, and with good reason.

While 40 percent of the cases are allowed--roughly 40 percent, 35 to 40 percent at the initial stage of determination by the DDSs--when it comes to reconsideration, 85 percent of the time, the initial DDS decision is sustained.

Yet what we see is when the cases move on to the hearing level, which is the next stage for reconsideration, the allowance rate is about 63 percent.

So, from the claimants' perspective, I think they will feel first of all, that they're getting a more independent review of their case, which I think is very important. If we're going to take the time for a second step, the claimant and their representatives should know that they're getting a really, truly independent review, and they will not see it so much as a rubber stamp, because if we do our job properly, we'll be documenting the record better all along the way, and we're in the process now of developing, and have completed developments on some of them, templates for the DDSs to use in making their decision and writing their rationale, for the FedRO to use, and we have something called a findings integrated template for the ALJs to use, but all the way through, the record will be better documented.

That means more medical evidence will be gathered, better decisions will be made earlier in the process, which should reduce the number of people who need to go forward to a hearing.

Right now, our hearing process takes over 400‑and‑some days.  That's the average processing time.  I wish I could report to you that the time has gotten better since I became Commissioner in terms of the average time.  It hasn't.  We have actually reduced the time by four months if you look at a particular case, but the average time, no, we haven't, because of the volume of cases that are coming in.

For the claimant who is waiting, it's much better for them if they're going to get a "yes" to get it sooner in the process as opposed to have to wait to go all the way through that hearing process to get it.

Mr. LEVIN.  So, there's a problem of consistency of effectiveness, would you say, to the older system, the present system, so there wasn't consistency, there wasn't effectiveness, it was--the process you're saying was so that there was allowance and then a rubber stamping of the disallowance and then the overturning of the disallowance, and so that wasn't an effective system, you're saying?

Ms. BARNHART.  Correct.  Yes.  I don't think it is when you have a rubber stamp, essentially rubber stamping.

I'm not taking anything away from our DDSs.  Understand they're under tremendous pressure.  So, this is really not about them doing a bad job.  It's just a system that I think doesn't work when you're reviewing it yourself.

Mr. LEVIN.  So, is there another defect that you think is being addressed besides those two?

Ms. BARNHART.  Well, I do think development of the record is very important, because I think right now what our ALJs have told me since I became Commissioner is that when they get these records in the hearing offices now, they're not well developed, and oftentimes they have to go all the way back to the DDS to get information. A good part of the delay at the hearing level, Mr. Levin, is the fact that we're having to go back and get things that should have been put in the record before.

By having a decision template that walks you through the logic of what you should have been doing, what you should have been looking at, the factors that should have been considered, and having to write up the logic that you used in coming to the conclusion you came to, it's going to necessitate that you do a better job getting the documents that you should have in the record.

It's a change in orientation from just worrying about initial processing times in terms of speeding it up to making sure that while they're doing the best job they can do, being as efficient as possible, they're actually doing the right thing in terms of documenting the decision, getting the evidence.

We probably could see an expansion of time for initial disability, but ultimately, because less cases would go all the way through, we would see a great savings in time at the hearing level.

Mr. LEVIN.  Just one last quick question.

So, what do you think is the most controversial or questionable aspect of this new approach?

Ms. BARNHART.  Based on the comments that we received, I would say that the--I hate to use the word controversial, but probably the area that most people expressed concerns about was the elimination of the Appeals Council and the creation of the DRB, and it's one of the reasons that we decided to leave the Appeals Council in effect until the last State is implemented, so the DRB will come up in the new States where we're implementing the new process, but the Appeals Council will continue, as opposed to just eliminating the Appeals Council right off the bat.

It's one of the things that we'll be looking at very closely in terms of what happens with the DRB, our ability to pull the right cases there, to look at them.

What happens, going back to your first question, to the courts, what happens in terms of the workload on the courts.  We will be monitoring the DRB very carefully for that reason, because I think that's the area that most people had concerns about.

So, what we're doing is putting in a lot of management information and checks so we know what's going on.  We're pledging to monitor and make adjustments as we need to.

Mr. LEVIN.  Thank you.  Thank you, Mr. Chairman.

Chairman MCCRERY.  Mr. Hayworth.

Mr. HAYWORTH.  Thank you, Mr. Chairman; and Commissioner Barnhart, welcome back.

Ms. BARNHART.  Thank you.

Mr. HAYWORTH.  Seeing you here tempts me to wax both nostalgic and rhapsodic about implementation of the first ticket to work in my district back a few years ago, and the efforts to emphasize "ability'' in disability.

With your indulgence, I appreciate hearing what is transpiring prospectively, but in real time, there in Tempe and in Arizona, in my State, in Region 9, we've got a little challenge, to put it euphemistically.

Last week, Region 9 management let my State's DDS directors know that they need to reduce the backlog of initial determinations.

In response, the Arizona DDS director apparently ordered a halt to all reconsiderations.

Now, in order for claimants to request a hearing by an SSA ALJ, they must first be denied at the reconsideration level.

From my understanding, the stoppage will only last as long as it takes for the Arizona DDS to reduce the number of initial determinations that are pending, and any initial determination that is disapproved becomes a potential reconsideration case, and with the current stoppage of reconsideration and the focus on initial determinations, it looks like the backlog of reconsiderations can be expected to grow.

Nearly 37 percent of additional determinations are approved for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits, so clearly, focusing no initial determinations will ensure that claimants entitled to benefits will get them as soon as possible.

Unfortunately, those claimants who had been approved on reconsideration will have to wait even longer for benefits, and as I understand it, on average, initial determinations take 95 days and reconsiderations 97 additional days.

How long, if you could estimate it, how do you estimate temporary stoppage of reconsiderations in Arizona to last?

Ms. BARNHART.  If I could just explain, we haven't totally stopped reconsiderations anywhere.  The dire needs reconsiderations are happening.

It was done--the action that we took was to look at what was going on on a region by region, State by State basis, as you point out your own case in Arizona.

Here's the situation we face.  We have now worked almost 9,000 more reconsiderations this year than we have received, which means we got into the ones that came in last year.

The same thing is not true with the initial claims.  We're behind.  We had 560,000 initial claims pending at the end of last year.  We now have 660,000 claims pending right now, where we are, halfway through the year, a little more than halfway through the year.

The reason for that is the subject of this hearing, the hearing that we had just a few weeks ago, which is the fact that we didn't get the allocation the President asked for in the budget, and it meant that we could only replace people at the DDSs, for every two vacancies, one person, so we have not been able to keep the DDS staffed this year the way we would have liked.

So, looking at the fact that we're really ahead in terms of reconsiderations and way behind in terms of initial claims, and it does vary State to State, because obviously population growth, What's really happening in terms of increased workload and so forth affects it, we took a look to try to balance out the workload.

The hope is that it will only be--the way we're looking at it is at the moment, what we're trying to do is direct all available resources, as many as we possibly can, to initial claims.

As this Committee knows, last week, the Congress passed $38 million in the supplemental Katrina appropriation, and I appreciate the support from this Committee.  We received $38 million for Social Security, or will in the very near future.

When we sort of repay ourself for what we spent on Katrina, we will then be able to apply that money to increased capacity all across the country.

Obviously, there are going to be limitations on how much capacity at this point, because we're halfway through the year, but I'm going to be monitoring the situation really closely.

What it means, and you actually got to the point of it is, it's not that we're not doing recons, it's that the recons will simply take longer, just like this year, we're restaffing. In some field offices, we have to wait 'til eight vacancies to be able to back fill some positions now, because the funding limitations we have, some people are having to wait longer for an initial appointment to come into a field office to make an application.  It's not that we're never going to do them.  It's that it's--and that we're not doing them--it's just that it's taking longer to get to them.

I'll be happy to keep you apprised as we look at the situation.

Mr. HAYWORTH.  Madam Commissioner, I look forward to that, and I thank you for your time, and I yield back, Mr. Chairman.

Chairman MCCRERY.  Thank you, Mr. Hayworth.  Mr. Becerra.

Mr. BECERRA.  Thank you, Mr. Chairman.

Commissioner, thanks again for being here, and one additional thank you, and that's for the quick response that you and the office gave to the questions that I had raised back at our previous hearing about the adult disabled child issue, and I want to thank you for the quick response.

I know you changed your web site to address some of those concerns, and I know you're looking for other ways to try to make sure information is received by families that might find themselves in these situations with children and adult children who might be disabled, so thank you very much for that.

Ms. BARNHART.  I appreciate you flagging it as an issue for us, because we weren't aware, so we appreciate it.

Mr. BECERRA.  Thank you.

Congratulations on moving through the process, and I think sometimes we get down in wanting perfection, and we never get to implement, so I think most of us are looking forward to having a new system up and running and hopefully reducing the backlogs.

Let me just flag some things that I hope you all will continue to monitor, because at this stage, you want to implement, so it's no longer trying to work something out and formulate it, it's implementing.

The FedRO, I think--I hope you will really, as I think has been expressed before, really focus on that, because that's the linchpin to the system.

If that doesn't work, then you're not going to deal with your appeals process very well, because you're still going to have the problem of these decisions not being done well and claimants in the end suffering the consequences.

Late evidence.  I know we--you were able to make some changes that I think better accommodate the needs of individuals, but I hope we'll always remember that we don't want to turn these processes, these appeals processes into court hearings.  We don't want this to become a court of law where everyone follows these rules of evidence to the tee and you've got an adversarial situation that confronts you so that you can't talk to the other side.

We want the claimants, who for the most part aren't financially well off, to be able to go through a process that's friendly.

So, I hope that when it comes to the issue of evidence, especially late evidence for claimants who, through no fault of their own necessarily, have good late evidence, that that doesn't hurt them.

I also have a concern about how the statutory requirements that say that we must take into account evidence adduced at the hearing will not become an obstacle to considering evidence that comes late.

So, how do you deal with the fact that evidence has to be adduced at the hearing to come to a decision, yet late evidence, which may be critical, comes in, and at what point will we have some appellate decision that tells us, well, you've got a conflict; the statute says you've got to take evidence only that's been only adduced at a hearing versus evidence that's critical and credible that comes in late.  So, I hope we continue to monitor that.

Then finally the appellate process.  I have some concern about removing that appeals process and going towards these DRBs, but again, I think with have to see them work, and I hope what we do is again not give ourselves a system that becomes like the courts--very formal, very legalistic, very expensive--and we continue to give claimants what they deserve.  So, I hope you monitor those things.

The final thing I'll flag for you is something that goes beyond just this whole process, and that's just that you have men and women in your agency who are doing more and more every day, and you have fewer and fewer people doing it, and at some point, you're going to bust.  You can't do this.

I know you're limited in what you can say and do, but I hope we will recognize that the work that you do is critical, as critical as any Federal agency or any Federal organ, and unless we have the personnel properly trained and equipped to do this with the ability to have decent morale in the shop, it's all going to fall apart, and you cannot continue to have more imposed upon you and the men and women that work for us without the resources to pay them well and to have the equipment and the materials that you need.

I think more and more we're beginning to see internally that these major backlogs that you've been trying yeomanly to try to address are the result not of any neglect, not as a result of any inexperience, it's just the fact that you don't have enough people, and we've got--I say that to you, and there should be a mirror there, because it really should be said to the Congress.  We need to give you the resources you need to do this.

You've got to be honest with us.  You've got to let us know, because we hear from a lot of the rank and file in your different offices.  It's like what happens with all the social workers who are asked, or the parole officers who are asked to do massive caseloads.  You can't do it.

So, I hope that we'll keep that in mind as we move forward, but thank you for the work that you're doing, and we look forward to working with you.

Ms. BARNHART.  Thank you.  If I could just respond, Mr. Chairman.

Chairman MCCRERY.  Sure.

Ms. BARNHART.  You've touched on many things.  I'm just going to pick a few that I'd really like to comment on.

One of those is the appellate process and the concern you expressed.  As I indicated earlier, perhaps that is the area, the elimination of the Appeals Council eventually and the creation of the DRB, where we got the most comments.

One of the changes that we made in the final regulation that we will be monitoring very closely to look at as we roll out to future regions, is that all claimants who move forward--and in Boston it's everybody, because we're going to look at 100 percent of the cases--may submit a statement to the DRB.  That is not something that was provided in the NPRM.

What we will be looking at is to see if, as we look at our predictive model and validate it, if the cases where the statement is submitted, where a change was made outside--in other words, the point is to see what the value is of that statement and how we ought to look at institutionalizing, it or changing it, or whatever as we move forward to other regions.

I just want you to know that's one of the reasons we made that change in the final regulation, and we are going to be looking at that very closely, because we're aware of those concerns.

Secondly, in terms of resources, I certainly support what you're saying.  I have attempted to be very clear with Congress. Most of those conversations take place at the Appropriations Committee, as you know. This Committee has always been extremely supportive about the resources that we need.  That's why I developed the five‑year budget plan, to show what you can get for the money.

Just this week, you may be aware that the Appropriations Subcommittee provided $200 million less than was requested in the President's budget, and if I could just take a moment to explain the likely result of that, should that hold.

First of all, that's exactly the amount of money that was set aside in the special funding for the Continuing Disability Review (CDR)s, which means we would not do 237,000 CDRs. During the last time I was here before this Committee just last month, there was a great deal of concern expressed about the CDRs, and recognition that we need to do them.

From a staffing perspective, we would have to cut an additional 1,900 work years, because the elimination of that $200 million, there are people attached to doing that work, and so what that means is the replacement rate we're experiencing now, and in some field offices it is one for every eight vacancies, one person, depending on whether or not there's population growth taking place.  In our DDSs it's been one for two.  For every two who leave replace one.  Those will all change, and it will be even worse than it is now.

So, there are very real consequences, and you're absolutely right.  I laid out the backlogs for the hearings. We're looking at backlogs of 660,000 in the DDS.  We're trying to get that down to 577,000 before the end of the year.

The point is, not only will we not make headway in terms of working those backlogs away, they will grow even more if we don't get the requested budget that the President made.  So, very real terms.  We've provided this information to the Committee.

The real, the very real danger, I will be quite candid and tell you is if they do an across‑the‑board reduction as has been done in the past, say another one percent, we may actually be in a position of probably having to furlough staff, for approximately a week.

So, the point is, it's a very serious situation financially for the agency.

Then finally, I would just say your comment about the men and women of SSA, I totally ascribe to your views about the people in this Agency.  They do an unbelievable job.

Frankly, if they had not done what they've done in terms of productivity, which means they're working as hard and efficiently as they possibly can, we would be in much worse shape.  We've increased productivity by almost 13 percent since 2001.  That is due to systems, obviously, but it's also due to the men and women in the agency doing what's necessary to make it happen, too.

Mr. BECERRA.  Amen.

Chairman MCCRERY.  Ms. Tubbs Jones.

Ms. TUBBS JONES.  Mr. Chairman, thank you.  I was just fortunate that I decided not to run and get a vote in here before the other group did.

Madam Commissioner, it's always good to see you.

I want to continue down the path about the impact that the 200 million reduction in level of funding will have on the agency.  You already talked about it affecting approximately 1,900 workers.

Your plan was to address backlog, so less workers, more backlog.  Tell me what impact that will have on your ability to, if you can put it in numbers, to address backlog.  You thought you might get through however many cases with this new work.  How many cases won't you be able to get through?

Ms. BARNHART.  Well, we, as I said, we won't be able to do 237,000 CDRs.  That's a very measurable workload.

In terms of turning it into cases, I haven't done that analysis yet, but I'd be happy to do that.  We can do that, Ms. Tubbs Jones, and I'd be happy to provide that.

Ms. TUBBS JONES.  I'm not a numbers person.  I'm just trying to show the real impact that the reduction has.  The 237 CDRs shows me what we're talking about.

Ms. BARNHART.  I can tell you now, even with level funding in our hearing offices, in other words, we're replacing one for one in our hearing offices.  If someone leaves, we replace them.  Okay.  So, it's a one for--obviously, because of the enormous workload.  We still have a workload that's growing this year, if that helps ‑‑

Ms. TUBBS JONES.  Even when you replace one for one, assume you replace someone with one year of legal experience and lose someone with 20 years of legal experience, that's a great, or as big an impact, even if you can do one for one.

Ms. BARNHART.  The learning curve issue is huge.  We believe it takes about two years in our field offices to learn the job and become proficient.  In some of the jobs in our hearing offices, it's two years.

For our ALJs, and we just brought 41 new ALJs, on we believe it will take nine months ‑‑

Ms. TUBBS JONES.  In Cleveland?  No, go ahead.

Ms. BARNHART.  I can tell you.  I knew you'd ask that question.

Ms. TUBBS JONES.  Always got to talk about home.  We can get that later.

Ms. BARNHART.  Actually, we've added, since the last time we talked about this, I've actually, I think added three judges in Cleveland since 2004, but I don't believe there are any scheduled for this time.

There would have been.  We were going to hire 100 judges, but because of the budget reductions, we didn't get ‑‑

Ms. TUBBS JONES.  So, how many less judges are you going to be able to hire?

Ms. BARNHART.  We're going to have 59 fewer than we were going to ‑‑

Ms. TUBBS JONES.  Fifty‑nine fewer judges?

Ms. BARNHART.  Next year ,with the reduction that we're looking at now, if that holds, we probably won't be hiring any judges.

Ms. TUBBS JONES.  Talk to me about how many cases a judge generally will handle in any period of time.

Ms. BARNHART.  A judge generally handles--well, right now, they're disposing of over two cases a day.  At the peak last year ,we were at 2.5 cases a day.  So, you take 20 workdays a month and you're talking somewhere ‑‑

Ms. TUBBS JONES.  A significant number.

Ms. BARNHART.  Yes, very significant.  What is it, 400, 450?

Ms. TUBBS JONES.  Significant numbers.

Ms. BARNHART.  Yes, very significant numbers.  Our judges are carrying enormous caseloads in some areas, sometimes as much as 950 cases per judge.

Ms. TUBBS JONES.  Talk to me about the Electronic Disability Folder System (eDib) and the impact it has on the ability to file a claim in a field office.

Ms. BARNHART.  Well, eDib, actually, I'm thrilled with eDib.  We're in a situation now where every State has electronic disability at different stages of--at different levels.

We have 40 States, though, that now have the ability to work in a fully electronic environment.  In other words, they no longer maintain the paper file and the electronic file.  They just do the electronic file.

What we're seeing, I can't give you hard numbers now, but I will be able to soon, we're seeing a decrease in the processing time in the States that have electronic disability and we're seeing a real increase in productivity.

If I could just cite a couple of examples--unfortunately I don't have Ohio here, but I do have Illinois, which has moved from 255 cases a month to 279--PPWY of 255 per worker to 279; Idaho from 250 in October to 349 in May; Texas from 261 to 287 in May; and in the Boston Region, where we're going to be implementing first, they've gone from an average of 244 cases to 296 for the month of May.

Ms. TUBBS JONES.  Last question.  Talk to me about the impact this reduction of $200 million will have on your whole plan of implementing new processes and bringing the agency into a position where they have much less backlog.

Ms. BARNHART.  Well, one of the things, as I mentioned, we're trying to get, and we believe we will succeed in getting rid of all backlogs in the Boston hearing offices by January.  We'll have pendings, but they won't be backlogs, because you need a certain amount of work to keep working.

My hope is to be able to do that when we move on to Denver, when we move on to Seattle, when we move on to Kansas City, and do as much as we can as we get to the larger regions.

Obviously, if we're not able to backfill people at a one‑for‑one ratio, and maybe hire some additional people, then we're going to be in a situation of not being able to keep current with the backlogs, let alone work them down, and it's going to make that more difficult.

One of the reasons we have the phased rollout, though, is it will allow us to adapt to whatever the funding situation is, and what it may well mean, Ms. Tubbs Jones, is that we end up having to delay implementation a little bit and stretch it out a little more than the roughly five years I project right now.

Ms. TUBBS JONES.  Mr. Chairman, thank you very much.  Just one more quick thing.

James Hill, will you stand up wherever you are in here?  Hi, James Hill, how are you?  He is from the great city of Cleveland, Ohio, will be testifying on the second panel, and just in case I don't make it back here, Mr. Chairman, I would for the record welcome a great Buckeye to Washington, D.C.  Thank you, Mr. Hill.

Thank you, Mr. Chairman.

Mr. BRADY. [Presiding] Thank you.

Well, Commissioner, this is an exciting day.  I have several questions.

First, let me, Commissioner, thank your folks, your employees at the agency, for two things.

Our district abuts Louisiana, and so we took in tens of thousands of Katrina evacuees, and then when we got hit by Hurricane Rita, we had our own problems.  In fact, 10 percent of our evacuees have yet to come back to East Texas, but your local Social Security personnel were just critical, huge help, as we tried to get those people back on their feet and get those benefits reestablished and all their questions answered.

Then secondly, during the rollout of the Medicare prescription drug plan, your folks were especially helpful, not only in the town halls explaining benefits, also on their own, out there talking to all the senior groups, American Association of Retired Persons (AARP) chapters all that, and toward the end, as seniors were looking to get--to make those decisions, they were very helpful in walking them through the extra program, extra help program and the worksheets and all that.

So, please tell your people they did an excellent job in two categories in our region.

Ms. BARNHART.  I will do that, and that will mean a lot to them.  They really worked their hearts out.  It was a wonderful example, the best I've ever seen of public service, and your comments will mean a lot to them.  Thank you.

Mr. BRADY.  Great.  Thanks.

Another part of the goal sort of like an emergency room that's full of people who can be taken care of in other areas.  Part of the goal of this change is to get decisions made accurately and early so we have fewer lining up at the ALJ level of those.

What criteria--what will you consider a success in progress in fewer cases at the ALJ level?  How will we view how much progress we've made in that area?

Ms. BARNHART.  Yes.  I think--we haven't set specific goals or targets at this point, Mr. Brady, but it's a really good question.

I think the first thing I will do is I will look to make sure that the cases that go on to Federal court, the remand rate, in other words, have we reduced the number of the incidents of Federal judges returning cases to us saying, "You didn't do your job right''?

The second thing, I will look at the number of cases that our own attorneys pull back once they've gone to Federal court, what we call voluntary remands, where we, upon review, before going into court to defend a case, actually say, "Wait a minute, we don't think we did our job right.''

I will look at what the DRB--the results of the DRB.  In Boston we're going to have the luxury of reviewing 100 percent of the cases, to see if they are reaffirming the decisions that are made at the ALJ level, saying, "Yes, we absolutely agree this was the right decision.''

I will be looking--basically, what I'm saying is, at each stage, looking back to the stage before, the ALJs, looking to see what they said ‑‑

Mr. BRADY.  Yes, and I think that's important too, that DDS decision, how many are flowing through the--are their higher rates than should be, larger caseloads than should be, because that's a key.

Ms. BARNHART.  So, one of the things, we know we're going to have these feedback loops that go back from each level, but what we're working out now is the vehicle for doing it.

Since the DDSs and the FedROs are different than the ALJs in terms of the fact that they do a review based on our direction and it's not an independent look, like the de novo hearing that the ALJ does, what we're going to do there is probably have our quality, our Office of Quality Performance, which I just created a few months ago, be the conduit for the information for the FedRO to go back to the DDS.

We also, as you know, provide in the regulation to have the ALJ send comments back to the FedRO.  What we have to work out there is the vehicle for how that physically happens, how do we actually get them there, but the idea is it's definitely going to go back.

We would like it to be able to go back on an individual basis, but I'm more interested in the aggregate, and I think that speaks to the point that you're making, or the question you're asking, because if I can look and see that in X percent of the comments that went back, the ALJ said, "I agree, you're doing--you made the right decision,'' if the number of times that the ALJ says to the FedRO, "I think you made the wrong decision,'' if that decreases over time, then I'll feel like the process is working, because learning is taking place. In other words, the one level is giving feedback and the other level is responding.

Mr. BRADY.  Sure.

Ms. BARNHART.  I have not set specific numeric goals at this point.

Mr. BRADY.  What kind of training are you going to conduct?  Obviously this is--that's key, and that I think also is one of the reasons we have disparities between regions and States is that training level.

What have you put in place for that?

Ms. BARNHART.  We are doing a lot of training.

In fact, one of our first training sessions happens I think Monday, we start, and we are going to be training executives who are involved in the process inside the Agency, and we have a--in fact, I think today we're doing this--I did a video that's being shown today--it's part of our "Main Streets'' series--where I talk about the new process and sort of the big picture for people, and then we move into the specifics next week, and there's more training coming out all the way through July.

We will obviously have to train all of our FedROs, because that position has never existed before, and we have to train people at the DRB.

I have prioritized the training based on the implementation, because obviously our DDSs need to be trained and our field office folks.  The DDSs need to receive the first training because that's the first point in the process people hit.  They won't hit the FedRO probably for three months, two or three months after August, and then the DRB will be obviously much later than that.

Mr. BRADY.  Right.  Are we giving you enough resources for training?

Ms. BARNHART.  We feel we're in good shape at this point for training, we do.  We can definitely handle that.

Mr. BRADY.  I like the idea of this Federal expert unit, and especially bringing in both the medical and occupational, because the change is not so much anymore are you injured, but what type of work can you go back to, so the occupational is key.

Why don't we compel complete and full medical records before the ALJ level?  Why don't we compel that before the DDS level?  It seems like the more complete the claimant's application is, the better we have of making a good decision early.

Ms. BARNHART.  You're absolutely right, and that is really one of the things that we tried to build into this, the incentives for doing that, because the fact is--let's just take a case in point.

If a FedRO overrides a DDS decision, and they do it because of evidence that they got at their stage of the process, that could have been gotten by the DDS, that's the kind of information that's going to go back.

The earlier we decide the case, if it's going to be a yes, the earlier we get to yes, the less expensive it is for us, quite frankly, because it's more expensive at each step administratively, and that thoroughness of having a complete record is one of the absolute goals.

You know, the main goal is to make the right decision as early in the process as possible, but to do that you need to have a complete and well‑documented record.

Mr. BRADY.  Are there obstacles to completing them earlier in the process, technical obstacles?

Ms. BARNHART.  I think one of the things, in all fairness to the DDS, is the pressure that's come on the DDSs in, as long as I can remember for decades, quite frankly, is process the claims faster and faster and faster.  You know, do more, do more, do more, and do it faster.  I do that to some extent, too.

So, I'm not just talking about former commissioners, all of whom I've known.

What happens is there's a price one pays for that, and what we're trying to say to the DDSs and the culture change that I've talked about many times--I've spoken to the National Association of Disability Examiners (NADE), and to the National Council of Disability Determination Directors (NCDDD), and we'll be doing that again this year, but the main point I'm trying to get across is it may take you a little longer, just like it takes our claims reps longer to do Electronic Disability Collect System (EDCS), in the field office than it did before, but the claim they send to the DDS is a better claim and the DDS spends less time going back and getting information that should have been gotten at the field office.

What I've tried to get across to the DDSs is, I understand you've just been pressured, pressured, pressured, move, move, move the cases.  It may take you longer to do what you're supposed to do to develop this record, and to get the medical evidence that needs to be obtained, but in the long run ‑‑

Mr. BRADY.  You'll save time.

Ms. BARNHART. --the claimant really, what they care about is if their case goes all the way through and because you didn't do it, it takes another five months at the hearing level, so we have to look at the whole process, not just in segments.

Mr. BRADY.  Okay.  Final question.

Obviously, you want to measure the progress on this.  One of the frustrations has been trying to, region‑to‑region, State‑to‑State, there's just disparities in different areas.

Are you building in a data measurement, a feedback system as it's rolled out in Boston, where we can take a look, more quickly, more accurately compare how the regions are doing, not just in approvals, necessarily, but in time, backlog, negative decisions, feedback.

Ms. BARNHART.  Yes.  Actually, one of the things that we're trying to do in terms of the variance issue is by creating the FedRO, eliminate the inconsistencies and actually make the process more consistent earlier, and having the FedRO centralized.

I don't mean centralized like in location, although we're starting in Falls Church with this first hiring of FedROs.  Eventually, they'll be all around the country in different locations.  We can do that because of eDib, but there will be central management of the FedRO, which will get away from this whole notion of this region versus this region and that kind of thing.

So, we're really trying to get rid of the inconsistencies.

In terms of looking at the outcomes that you talked about, though, allowances, denials, processing times, all those kinds of things, we definitely will be tracking that very carefully.

We have a number, a pretty elaborate management information system to collect just about everything I could possibly imagine, although this Committee may well think of something I should have thought of--you seem to always do that.  We're doing our best to try and anticipate what you want to know.

We're going to be tracking it for Boston, and obviously we'll be still getting the information we have for the other States, and we'll be able to, look at what the difference is, yes.

Mr. BRADY.  Hopefully, that FedRO,--there should be--this is a Federal program.  There's naturally going to be some small disparities State to State but there shouldn't be dramatic ones, you know what I mean, if we're going to consistently apply and interpret, throughout the country, and that's been one of the frustrations for everyone in the past.

Before you conclude your testimony, is there anything else you want to add?

Ms. BARNHART.  No, just to say again that I really appreciate the interest that this Subcommittee has had in this issue.

It is an undertaking that many people thought was not going to happen because of the nature of what we had to work with, and  all the issues and all the interests that come to bear in the disability program, but I do believe that the tone that this Committee sets through its oversight hearings, looking at these issues, goes a long way in promoting the cooperative spirit that I have seen with everybody that I've worked with in the Congress and outside of the Congress, and I think it's something that's seen far too little, it's a far too rare occurrence today.

Mr. BRADY.  Right.

Ms. BARNHART.  I say that as somebody who came to work in Washington in 1977 to work in the Senate, and so I truly appreciate that level of interest, and I just want you to know that we will continue to provide whatever information  you and your staff have, whatever questions that you have.  We want to be as responsive as possible.

We believe this can work.  We are committed to making it work.  We are going to be happy to prove to you that it's working.

If it's not, if something is not working the way it was designed, we are going to step in very quickly to address the issues.

So, thank you.

Mr. BRADY.  Right.  Well, thank you and good look.

Our next panel will be introduced by the Chairman.

Chairman MCCRERY. [Presiding] I would invite the next panel to take their seats.

We have Robert Robertson, Director, Education, Workforce, and Income Security Issues with the U.S. Government Accountability Office; Marty Ford, Co‑Chair, Social Security Task Force, Consortium for Citizens with Disabilities; Sarah Bohr, President, National Organization of Social Security Claimants' Representatives--if we could have a little quiet.

We have Witold Skwierczynski, President, National Council of SSA Field Operations Locals, American Federation of Government Employees, AFL‑CIO, Baltimore, Maryland; James Hill, President, Chapter 224, National Treasury Employees Union, Cleveland, Ohio; Judge Ronald Bernoski, President, Association of Administrative Law Judges, Sussex, Wisconsin; and Gary Flack, Chairman, Social Security Section, Federal Bar Association, Atlanta, Georgia.

Welcome, everyone, and thank you for coming today.

As you heard with our first witness, your written testimony will be submitted for the record in its entirety, and we would like for you to summarize that testimony in about 5 minutes.

You will see in front of you a little box with a green light.  When the green light turns to red, that means your 5 minutes has expired and we would like for you to try to wrap up at that time if you haven't already.

We will begin this afternoon with Mr. Robertson.

STATEMENT OF ROBERT E. ROBERTSON, DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY ISSUES, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE

Mr. ROBERTSON.  Mr. Chairman, Mr. Levin--do we have a working mic here?

Yes, we do.  I'll dispense with the tap, tap, tapping, then.

I'm very happy to be here this morning to discuss SSA's preparations for rolling out its new, revamped disability determination process.

As you're aware, perhaps painfully so, SSA for many years has been struggling to address longstanding problems with its disability claims process in hopes that the DSI process, or DSI, will improve the timeliness and the quality of its disability decisions.

Mr. Chairman, I will make just three points this morning, and in the interests of time and my fellow panel members here, I'll try to do it very quickly.

First, from our perspective, it appears that the actions SSA has taken to help facilitate the successful implementation of the DSI does draw upon many lessons learned from earlier redesign efforts, and I might humbly add also that they reflect a number of our past recommendations.

For example, significant aspects of the DSI rollout are consistent with our recommendations to focus attention on elements that are critical to rollout's success, such as quality assurance and computer supports.

Further, SSA's incremental approach to the rollout, which allows for a year of monitoring and evaluation in one region before expanding the approach to other regions, is also consistent with our past recommendations.

Finally, and fundamental to all of this, SSA's top leadership has shown a commitment to informing affected stakeholders and listening to their advice and concerns with respect to the development and implementation of this process.

This type of two‑way communication is of course critical to any successful change management of the magnitude we've been talking about this morning.

The second point I'd like to make is that while SSA has taken many positive steps in preparing for implementing DSI in the Boston region, the rollout schedule is extremely ambitious.  As a result, some parts of the rollout strategy are not yet fully developed, including a final plan for its evaluation.

For example, we would hope that SSA has a solid monitoring plan in place once DSI is implemented in Boston.  Such a plan is absolutely crucial to quickly identifying and correcting problems that surely will surface during the implementation.

Perhaps more importantly, SSA needs a sound evaluation plan to be in a position of determining whether or not the DSI changes are accomplishing their broader purpose.  That is, are they producing more quick decisions, are they producing consistent decisions, that type of thing.

As a quick aside here, I appreciate the questions that came up early in the hearing, talking just about the evaluation plans for this rollout.  It is something that every opportunity I get during today's hearing I'm going to emphasize, because I think it's just absolutely critical.

We also hope that SSA's top management will be vigilant in ensuring that communication lines stay open during the critical rollout period in order to fully understand and effectively address questions and concerns that affected stakeholders may have.

My last discussion point relates to the elimination of the Appeals Council and its replacement with a DRB.

Obviously, there's been great concern from a number of stakeholders who in general have noted that the change could increase the workload of Federal courts and additionally results in hardships for claimants in terms of the loss of an administrative appeal level and difficulties associated with pursuing their claims in Federal court.

At this point, Mr. Chairman, we're not in a good position to predict the effects this change will have on Federal court caseloads or on claimants.  Obviously, we and many other people in this room will be closely following SSA's assessment of the review board's impact in both of these areas.

I would point out, however, as has been pointed out earlier, that the immediate impact of this change will be somewhat softened by SSA's plan to require that the board review all ALJ decisions in the Boston Region, not just those selected decisions that involve issues that have historically posed challenges to accuracy and consistency.

Mr. Chairman, that ends my prepared remarks and I'll be happy to answer questions at the appropriate time.

[The prepared statement of Mr. Robertson follows:]

Chairman MCCRERY.  Thank you, Mr. Robertson.  Ms. Ford.

STATEMENT OF MARTY FORD, CO‑CHAIR, SOCIAL SECURITY TASK FORCE, CONSORTIUM FOR CITIZENS WITH DISABILITIES

Ms. FORD.  Thank you.  Chairman McCrery, Representative Levin, thank you for this opportunity to testify and for your oversight on these important issues.

We applaud Commissioner Barnhart for establishing improvement of the disability determination process as a high priority in her tenure.  Her goals of increasing the accuracy, consistency, and fairness of decision making and in turn lessening the need for appeals are critically important.

Millions of children and adults with disabilities rely upon SSI and Title II disability benefits and their related Medicaid and Medicare health services.  It is critically important that those who need and qualify for benefits not be forced to wait for months or years to be found eligible.

The implementation of the final regulations must ultimately be measured by its impact on claimants and beneficiaries with disabilities.

The regulations include several major new aspects and also some major changes to long‑standing procedures in the process which must be monitored closely.  All of these changes and the issues they raise for claimants, their representatives, and adjudicators need to be continuously monitored and studied to determine whether implementation is going as planned and whether there are any unintended consequences for claimants and beneficiaries.

My testimony goes into detail on a number of issues which we believe that SSA must carefully assess and which we urge this Subcommittee to monitor.

While not the subject of the regulations, the new eDib, or electronic file system, is critical to the success of the DSI process, allowing more than one person or people in different locations to work on the case at the same time.

As Commissioner Barnhart has pointed out many times, it is critical that there be better development of evidence at earlier stages in the review of a claim.

The QDD and the medical and vocational expert system are new steps that offer opportunities for improved adjudication if implementation is carefully monitored.

The reviewing official is also a new step, and importantly, the first level for Federal review of an unfavorable decision.  The SSA must pay close attention to its careful implementation.

The ALJ level of review has been maintained, but some key elements have been revised.  This includes the time limits for submitting evidence and criteria for submission of evidence following the hearing or the decision.

There is no right to appeal to the DRB, the ALJ decision takes on new importance.  The SSA should track claimant experience with these changes to ensure that there are no adverse consequences.

Finally, the replacement of the Appeals Council with the DRB could have major implications for claimants and for the Federal courts.  Before the DRB replaces the Appeals Council, monitoring the effects of the new process in Region I and making adjustments to protect claimants will be critically important.

The SSA should: ensure that the predictive model is selecting all of the cases with issues that call for administrative remedy, ensure that claimants and representatives receive clear guidelines on the timelines for the DRB and for Federal courts, undertake a thorough review of those cases filed in Federal court to determine whether there has been a failure of the system anywhere along the line, and ensure continuation of the Appeals Council until the DRB has proven successful in the vast majority of cases.

Throughout all of these steps will be the new in‑line quality assurance system.  It will be important to ensure that the new feedback loops operate properly to continue educating adjudicators about proper evidence gathering and decision making without imposing pressures for predetermined or arbitrary decisions.

The SSA's training efforts at all levels and continued communication with all stakeholders will be important linchpins in whether systems changes will be successful.

In conclusion, we continue to be strongly supportive of efforts to reduce unnecessary delays and to make the process more efficient.  By examining the experience in Boston closely within the framework of the goals of accuracy, consistency, fairness, and effectiveness, SSA should aim to ensure appropriate revisions in a timely manner.

The overriding goal is to have the right decision for each claimant, not just a legally defensible decision.

We look forward to continuing work with the Commissioner and SSA and with this Subcommittee as the new process unfolds.

Thank you.

[The prepared statement of Ms. Ford follows:]

Chairman MCCRERY.  Thank you.  Ms. Bohr.

STATEMENT OF SARAH H. BOHR, SARAH H. BOHR, PRESIDENT, NATIONAL ORGANIZATION OF SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES

Ms. BOHR.  Chairman McCrery, Representative Levin, and Members of the Subcommittee, we thank you for the opportunity to testify regarding the changes to the SSA disability determination process known as DSI.

I'm the president of the National Organization of Social Security Claimants' Representatives, the members of which represent claimants in the disability process and are intimately familiar with this process.

We certainly appreciate the Commissioner's willingness to listen to our views and those of other advocates in the disability community.

The final rules reflect a number of changes from the proposed rules which will benefit claimants.  However, there are many areas that will require close monitoring by SSA and by claimants and their representatives.

My written statement covers many topics in detail, but today I will focus on three areas that reflect major changes from the current practice:  the FedRO; the new requirements for submitting evidence to the ALJ; and the new DRB, and its potential impact on our Federal courts.

The first level of appeal under DSI is to the FedRO, which SSA views as critically important to the new process.  Our members have already raised a number of questions about this level which are detailed in my statement.

These concerns include:

Ensuring there will be enough FedROs to handle cases and providing them with sufficient support staff.

Following how many claimants seek representation at the FedRO level.

Are representatives able to effectively communicate with the FedROs and submit evidence?

Does representation earlier in the process lead to better developed cases?

Since FedROs will be required to consult with the medical vocational expert system if they want to allow a claim or if they receive new evidence at the FedRO level, does this requirement cause unreasonable delays and erode the FedRO's authority?

A second key change requires that new evidence be submitted to the ALJ five business days before the hearing.  After that, claimants must meet certain requirements to have new evidence considered.

This is a major departure from the current practice that allows evidence, consistent with the Social Security Act, to be submitted at the hearing, if necessary.

This change leaves ALJs with a fair amount of discretion and it needs to be closely monitored by SSA to make certain that eligible claimants are not wrongfully denied benefits.

This is an area of particular concern to representatives, since the ability to obtain medical evidence is often beyond their control.

Some areas for SSA to monitor include:

Tracking the number of requests to submit evidence within the five days of the hearing or later and the ALJs' decisions on these requests.

Do denials of requests lead to more district court filings in order for the evidence to be considered by SSA?

Does the DRB pick up erroneously denied requests to submit evidence? Are the rules applied so that claimants who seek representation shortly before a hearing, or even after a hearing, are not improperly disadvantaged?

Are the rules applied in a way that is consistent with the realities of obtaining medical evidence?

The third major change is the elimination of the claimant's right to appeal the unfavorable ALJ decision to the Appeals Council.

Instead, the DRB will screen both favorable and unfavorable ALJ decisions using a "predictive screening tool" that will select "error‑prone" cases.  If the DRB does not select a case, the claimant will appeal the ALJ decision directly to Federal court.

The SSA recognizes that many groups, including disability advocates and the Federal court judges, are very concerned about the elimination of the Appeals Council step for claimants.  This change will require very close monitoring.  However, we believe it will take longer than a year to closely monitor and fully assess the impact on our courts.

My written statement outlines a number of statistics that SSA should track, including the disposition of cases by the DRB, the number of court filings by unrepresented claimants, and the number and the types of court dispositions and the underlying reasons.

The SSA also needs to track whether the new rules on ALJ evidence submission affect court filings.

We also have many questions about the "predictive screening tool" and the selection of cases for the DRB review that SSA should evaluate:

Will ALJs be able to learn which cases are more likely to trigger DRB review?

Can a computer‑based screening tool identify all of the issues that arise in a case, including subtle issues like ALJ bias or issues specific to the circuit, based on circuit precedent?

We are also concerned about delays in payment of benefits that may arise from the time needed for DRB review of favorable ALJ decisions.

In conclusion, as DSI begins, we'll monitor the process with our members of Region I states and continue to present our concerns to the Commissioner.

Thank you.

[The prepared statement of Ms. Bohr follows:]

Chairman MCCRERY.  Thank you, Ms. Bohr.  Mr. Skwierczynski.

STATEMENT OF WITOLD SKWIERCZYNSKI, PRESIDENT, NATIONAL COUNCIL OF SOCIAL SECURITY ADMINISTRATION     FIELD OPERATIONS LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL‑CIO

Mr. SKWIERCZYNSKI.  Thank you, Chairman, for providing two panels to fit my name.  Thank you for the opportunity to testify before the Committee on the commissioner's disability improvement plan.

I represent 50,000 employees, the bulk of the agency, who work on various aspects of Social Security's disability program.  The people I represent interview claimants, take and process every single disability claim and appeal that is filed in this agency.

It's the union's belief that the commissioner's disability plan is seriously flawed in many respects and will not achieve the goal of consistency, speed, and a better disability product.

We think staff support is essential.  The commissioner alluded to staffing cuts.  Last year, the President's budget was reduced, which led to a 2,400 work year reduction.  The President's budget this year contains another 2,300 work year reduction.

According to the commissioner's testimony, 2,000 more, 1,900 more would lead to about 6,700 work years over a two‑year period reduction in Social Security.

No matter what the commissioner proposes, we cannot sustain those kinds of cuts and provide a good disability product.

The one to eight replacement ratio in the field is outrageous.  You will only create a situation where interviews will be backlogged and appointments will be delayed, and there's no way that that will improve the disability process.

The systems changes that are necessary, the commissioner didn't even speak about it, are massive, and unless the proper budgetary support is afforded, they're not going to happen.

The EDCS, our experience with the electronic claims, there was no staff support given to the field and the initial interviews were increased by 20 or 45 minutes, and with no staff support, that obviously led to backlogs.

We applaud the Quick Claims unit idea.  Unfortunately, we think that should be done in the field office by Federal claims representatives.  There's no need for a handoff.  The disability claims manager pilot showed that that can be done right in‑house without that kind of a handoff.

We think it's a bad idea to use the best workers in the DDS to do that.  They're going to be the easiest claims.  What you have left is the less experienced workers doing the tough work that's not involved in the Quick Claims.

With regards to the reviewing official, we have a problem with that person being an attorney.  We have no problem with the concept.

We think there's plenty of SSA personnel that are involved in the decision‑making process on disabilities who can do that work, and we think it's an insult to them to say that you have to be an attorney to do that.

We think having attorneys in there creates a more litigious process.  You have almost every step of the way the claimant dealing with an attorney--at the reviewing official, at the hearing, at the DRB, and in the courts, all attorney‑run processes.  That is going to create more litigation.

We think the barriers that are put into the process-- where the reviewing official has to, in order to overturn a decision, has to have a medical expert opinion; at the next level, for the judge to overturn a decision, he has to write a written rebuttal to the reviewing official; and cutting off the record--are all designed to reduce the disability rolls.  There's no doubt in our minds that that's really the goal here, to reduce the disability rolls, and you have barriers in the process that create litigation to arrive at that.

Getting rid of the Appeals Council, there is about a 30 percent remand reversal rate at the Appeals Council, and getting rid of--and obviously, there's a reason for that.  The cases either are not fully developed or there's errors.  That will be lost in this process.

Closing the record prematurely ensures that people who are disabled and file for disability benefits and don't provide their evidence timely will not get disability benefits, or if they re-file at a later point, they'll lose retroactivity, get lower benefits, it will affect their Medicare, it has massive effects on various aspects of their lives.

We think that what should happen is we should look at the disability redesign approach.

The disability claims manager experiment we thought was very successful.

The adjudicative officer was a little different than the reviewing official, where they were claimant friendly, met with the claimants, met with the attorneys, had the ability to reverse the decision, but also assisted them in preparing for the hearing.  We think that's a more claimant friendly approach.

Frankly, neither the commissioner nor the agency has done anything, either in terms of focus groups or in terms of surveys to find out what the claimants actually want, what the public wants, and during the redesign, they did, and the public indicated they wanted a caseworker approach and they wanted to be able to deal with the decision maker.  This approach here does not get to that point.

Finally, I want to say to the Commissioner, that the employees of Social Security have not really been consulted with regards to this plan, and they're the ones who are best aware of how the process works and what the needs in the system are, and I would urge the commissioner to reestablish communications with the union who represent 50,000 employees so that we can have input on how this plan operates.

[The prepared statement of Mr. Skwierczynski follows:]

Chairman MCCRERY.  Mr. Hill.

STATEMENT OF JAMES A. HILL, PRESIDENT, CHAPTER 224, NATIONAL TREASURY EMPLOYEES UNION

Mr. HILL.  Good afternoon, Chairman McCrery, Ranking Member Levin, and the Members of the Social Security Subcommittee.

My name is James Hill.  I have worked as an attorney advisor in the Office of Disability Adjudication and Review (ODAR), formerly known as the Office of Hearing and Appeals for over 23 years.

I'm also the president of Chapter 224 of the National Treasury Employees Union that represents attorney advisors and other staff members in approximately 110 hearing offices and regional offices across the United States.

I thank the Subcommittee for inviting me to testify regarding the DSI initiative.

We now stand on a precipice of fundamental change.  After an exhaustive review with input from many sources, Commissioner Barnhart formulated significant process changes that are set forth in the regulations that were issued on March 31, 2006.  The planning stage is over.  Now, implementation begins.

Commissioner Barnhart has proposed a lengthy and thoughtful implementation plan designed to identify and correct the inevitable unforeseen problems and to ensure DSI functions as expected.

The National Treasury Employees Union (NTEU) has consistently supported DSI, and we continue to do so.

Elements of the plan, such as the quick decision units, the elimination of the reconsideration determination, the creation of the FedRO position, the creation of medical vocational expert units, the elimination of the claimants' administrative appeal of ALJ decisions, the eventual elimination of the Appeals Council, the creation of the DRB, and the creation of an entirely new quality assurance process as presented in the regulations will significantly improve the disability adjudication process.

However, there are pitfalls that must be avoided if DSI is to succeed.

The quality assurance process must not stifle the ability of adjudicators and medical and vocational experts to exercise their independent judgment without undue influence.

The integrity of the FedRO decision must be maintained.  It is essential that the FedRO decision not become merely another form of the discredited reconsideration determination.

We are also concerned that the locations of the FedROs and potentially poor working conditions will dissuade the best qualified candidates from applying for or accepting that position.

Finally, we are convinced that if the current backlog in hearing offices is not eliminated, it will strangle DSI.  Simply put, if DSI must contend with backlogs as large as those that exist today, it will fail.

Currently, there are approximately 727,000 cases pending at ODAR hearing offices, and average processing time is nearly 480 days.  Ideally, hearing offices should have no more than 350,000 cases.

Resources are tight, so any initiative designed to attack the backlog problem must do so without demanding a significant expenditure of resources.

Fortunately, history provides the vehicle for the resolution of the backlog problem:  the Senior Attorney Program of 1995 that produced over 220,000 fully favorable on the record decisions and was a key factor in reducing the cases pending in the late 1990s from 550,000 to 311,000.  This was accomplished with a modest expenditure of resources.

Unfortunately that program was terminated as part of the Hearings Process Improvement initiative.

We recommend that SSA reissue the regulations authorizing ODARs attorney advisors to issue fully favorable on the record decisions.

Properly administered, such a program could produce over 350,000 fully favorable on the record decisions over the next four years, reducing the number of cases pending to a workable level and requiring only a relative mild expenditure of resources.

I reiterate the support of NTEU for the DSI initiative.

Mr. Chairman, again, I appreciate the opportunity to testify before this Committee and would be happy to answer any questions Members of the Committee may have.

Thank you.

[The prepared statement of Mr. Hill follows:]

Chairman MCCRERY.  Thank you, Mr. Hill.  Judge Bernoski.

STATEMENT OF HON. RONALD G. BERNOSKI, PRESIDENT, ASSOCIATION OF ADMINISTRATIVE LAW JUDGES

Mr. BERNOSKI.  Thank you.  Thank you, Mr. Chairman.  Thank you for inviting us to testify here today.

I appear as the president of the Association of ALJs, and we represent about 1,100 ALJs in the SSA, and there are about 1,400 ALJs in the entire Federal Government.

We support the commissioner's plan for reform of the Social Security disability process, and we worked with her during the development of the plan, and we've committed to work with her during its startup in Region I and its rollout across the country.

However, in our opinion, the changes in the plan cannot occur without help from outside sources, and the major support must come from Congress, because the plan must be properly funded.  The failure to fund the changes will lead to failure of the plan and to catastrophic results, including unprecedented backlogs, all to the harm of the American people.

Now, with regard to particular aspects of the plan, the reviewing official, or the FedRO, will require new funding, and this change, as indicated previously today, is really, and we agree, the centerpiece of the reform plan.

The primary function of the FedRO is to ensure that the cases are completely prepared for hearing and to award cases that meet the standard for disability as early possible in the process.

Now, we all know that it takes time to prepare a case for trial and it is vital that SSA does not expect these FedROs to do too much.

Now, we have heard that the FedROs will be expected to produce two cases per day.  However, we believe that this is more than a person can accomplish while producing a quality work product.

The expectation of two cases per day was one of the reasons that caused the Adjudication Officer (AO) program to fail, and we should learn from that failure not to commit the same mistake again.

Requiring too much from the FedRO will result in poorly developed case files and the wrong cases being paid.  If ALJs receive poorly developed files, we'll have the same amount of work as we do now, but we'll have fewer support staff to assist us, which is going to lead to larger backlogs.

We are of the opinion that at least two FedROs plus support staff will be required for each ALJ.

Now, the plan requires that the FedRO position be staffed by an attorney, and we are of the opinion that the skill and training of an attorney is vital to perform the responsibilities of this position and to producing the expected quality of work product.

Now, also, the separation between the ALJ and the FedRO must be maintained.  It must be remembered that the ALJ does not hear the case on appeal from the FedRO, but instead conducts a de novo hearing.

The ALJs are required to make decisions based on the evidence that was produced at the hearing and for the record, and judges should not be expected to comment on the differing aspects of the FedRO determination, because this only creates an opportunity to claim error on appeal.

We further believe that the ALJ hearing must become more structured under the reform plan.

Our cases will now go directly to the Federal courts, go the Federal courts on appeal, and the courts are going to require a higher quality work product.  This will require more sophisticated medical and vocational expert testimony be produced at our hearings, and that better written hearing decisions be prepared by attorney writers.

It is of little value for us to conduct an excellent hearing if the work product does not capture it in a well‑written and analyzed decision.

Now, in closing, Mr. Chairman, the commissioner should be given credit for assuming the huge task of converting our paper file system to the electronic eDib system, but again, this program is going to have to be fully funded.

Experience has shown at least initially that the conversion from the electronic file to the eDib--or from the paper to the eDib system has slowed down the processing time, and our judges have reported to us that the electronic system itself is slow, and this is reducing the amount of work that the user can produce; and both of these factors are going to reduce the number of cases that can be heard and the number of decisions that can be written, and funds must be provided to correct this problem within the system.

Now, in closing, SSA is the only adjudicative body that not have established rules of procedure, and we believe that comprehensive rules must be adopted to provide the structure that's needed to implement this new process.

Thank you very much.

[The prepared statement of Mr. Bernoski follows:]

Chairman MCCRERY.  Mr. Flack.

STATEMENT OF GARY FLACK, CHAIRMAN, SOCIAL SECURITY SECTION, FEDERAL BAR ASSOCIATION

Mr. FLACK.  Mr. Chairman, the Social Security Section of the Federal Bar Association (FBA) welcomes this opportunity to share our thoughts about the new final regulations to improve the disability claims process.

I am the Chair of the Social Security Section of the FBA.

We commend Commissioner Barnhart for her efforts to improve the disability determination process.  This Subcommittee is also to be congratulated for its oversight role in having conducted hearings on the problem and now on the solution.

Today I focus my testimony on several aspects of the final rule.

First, will the reviewing official delay proceedings or become an institutional hurdle claimants must overcome?

The office of the FedRO is a more accessible but Federally controlled decision maker.  Unless there are at least as many FedROs as ALJs, the caseload of each FedRO will soon exceed the heavy caseload that the ALJs have today.

Too large a caseload will not only delay decision making but also interfere with accurate decision making, so we agree with the others that there have got to be plenty of FedROs.

Also, we're concerned that the FedRO decisions may become an institutional barrier in disability determinations.

Some ALJs may utilize the FedRO decision to deny benefits.  Other ALJs may regard it as a hurdle the claimant must overcome.

If an ALJ reverses the FedRO's decision, then the DRB may question the ALJ's decision based on the earlier FedRO decision.

The commissioner must provide procedural guarantees to assure the independence of the ALJ's decision making.  It is the fair hearing that's the centerpiece of the disability adjudication process, not the FedRO.

Our second concern is how the Federal judiciary is used as a measure of the success of the DSI.  This has been addressed by several of the speakers, and the commissioner as well.

We think that it's great that the commissioner is developing all these different statistics as to whether there's a voluntary remand, whether there are substantive mistakes, and looking at these numbers is critical to accurately see how the program is working.

One thing that I don't think many speakers have mentioned is that you have to keep track of Sentence 6 remands when there's new and material evidence that somehow didn't get into the system before.  If there's a lot of those Sentence 6 remands, then the system isn't working as well as it should.

Our third concern is will Region I predict how well DSI will work elsewhere?

The appendices attached to our written testimony suggest that Region I, as you noted, is already approving an above average number of claims with very few court challenges.  The system is working pretty well there.

We conclude that the pilot project may work well in Region I, but poorly elsewhere.

As we noted in our materials, it's likely to take about three years before you get accurate numbers from the district court, because it takes a long time for all this to play out, so we're not sure how quickly this system can be rolled out.

Our final concern is whether the DRB will undermine the independence of the ALJs.

We fear that the DRB and its computer‑based predictive model will intrude on the traditional independence of ALJs.

The ALJs worry that the benefits of a fair hearing will be overturned by a review board that did not see the claimant or attend the hearing.

Private practitioners worry that the computer program, not the individual ALJ, will become the de facto decision maker.

The commissioner's computer‑based predictive model probably will not be as blunt as the discredited Bellmon review, but we fear it will unduly shape ALJ decisions.

Thank you for the opportunity to appear before you today.  I'd be happy to answer any questions you have.

[The prepared statement of Mr. Flack follows:]

Chairman MCCRERY.  Thank you all for your testimony.

You've all brought to light some concerns that you have about the proposal by the Commissioner.

Mr. Robertson, I think the process of analyzing and examining how this rollout is working, first in the Boston Region and then later in other regions, takes on even more importance than it otherwise might because of the dramatic changes in the process that are proposed, and in the concerns that have been raised by folks who are intimately involved in the current process.

With that in mind, what is your assessment, from the GAO's standpoint, of the Commissioner's dynamic management model that she mentioned when I asked her about the protocol for reviewing and analyzing the progress in Region I, in the Boston Region?

She said, we're going to use dynamic management, which basically I understood her to say is kind of analyzing as we go, and tweaking as we go.

What is your assessment of the efficacy of that model?

Mr. ROBERTSON.  A couple quick comments on that.

Number one, we don't really have a lot of the details of just how the SSA is going to go about doing its evaluation.

You know, they have a notion of, okay, we need to do this, this, and this, but they're pretty vague on the measures they use and the timeline, that type of thing.

So, that's one point.

The other point would be just to say, "Well, here's what I think should be happening in terms of an evaluation,'' and I think--and perhaps I'm oversimplifying things, but sometimes that's a good thing--I think they've got to do at least three things.

They've got to look at the individual components of the new system and determine whether or not they're working the way they were supposed to work.

In other words, are the Quick Disability Determination (QDD) actually producing decisions quickly at the front end?  If you're looking at the back end, again, you'd be looking at, well, what's happening and how effectively is the DRB doing its thing?

So, that would be one kind of a micro look at the individual components of the new system.  That's got to be done, and that's got to be done continuously so they can tweak the system as the rollout occurs.

The more macro level evaluation, and this is so very, very important, is to remember there was a purpose, there were broad objectives for this system right from the get‑go, and they were to improve the timeliness of the decision making process and improve the consistency and make sure the decisions were fair.

Somehow, at some point in time, SSA needs to flesh out just exactly how they're going to do that, and I say that now because if they don't do that, a year or two from now you hold hearings and you ask me or you ask the commissioner, "Well, how are things going with the new rollout?''

You know, we wouldn't, if we didn't have a good evaluation system in place, we wouldn't be able to say, or we'd be saying, "Well, some things look good but we really didn't have the right measures, or we didn't measure the right things,'' that type of thing.

So, the second part of it is making sure that we're accomplishing the overall objectives or evaluating the overall objectives of the DSI.

Last but certainly not least is, we need to have an idea of how much all this costs.

So, basically, it boils down really to two things:  is the DSI working as intended, both on the macro and micro level; and how much is it costing us?

Chairman MCCRERY.  It seems to me that the first two things should be fairly easy to measure, particularly in comparison to where we are now and the system that exists now.

The third component of your micro list, though, are the decisions fair, I don't know who is going to decide that.  I don't know that you can ‑‑

Mr. ROBERTSON.  I don't know how that's going to transpire.

Chairman MCCRERY. --measure that, but the first two I think are imminently measurable and can be done.

The question of cost, almost everybody here has raised the issue of are there sufficient resources available to allow this reform to work. Have you made any assessment of that, given the resources that are available?

Mr. ROBERTSON.  At this point in our review ,we haven't looked at the costs.  You know, we have the figures that SSA had in the final rule, but that's the extent of it.

Chairman MCCRERY.  Okay.  Before I turn it over to Mr. Levin, I thought each of you were very clear in your testimony.  I don't have a lot of questions.  A lot of these questions that the staff prepared were answered, I thought, pretty well.

I want us to keep in mind, though, that the reason we're all here and the reason the Commissioner has been doing this is because the current system really hasn't worked very well, and the current system is not very fair, just in terms of the process to claimants, because they have to wait so dadgum long to get a decision, any decision.

That's what we're all trying to get at, and the Commissioner has done her best at coming up with a new process that she hopes will give claimants a better shake.

We don't know if it's going to work, and that's why we want to hear from you all, so that we can get as much input going in to anticipate problems.

Then we also want to get in place a rigorous assessment protocol so we can tell as we're going along whether things are working.

Then lastly, we want to try to make sure--this is probably the most difficult part--that sufficient resources are made available to allow the process that she's come up with to work as she's designed it, and that, unfortunately, to some extent, we have to leave up to the appropriators.

Mr. Levin and I both have been very adamant in our requests to the appropriators for more funding, and unfortunately, they didn't give us what we asked for, but we'll continue to beat on them and see if we can help get some more resources.

I appreciate very much the input that you all have provided not only today but prior to today as the Commissioner is developing a process and making changes to it.

So, thank you very much.

Mr. Levin.

Mr. LEVIN.  Maybe I'll pick up on that statement, because the staff, with its usual efficiency, has outlined all kinds of questions, and maybe what we should do is to present them to you in writing so that each of you can give us your inputs, how the system works at every step.

I guess I just want to say that in the end, the test is not only the quality, but how we address the backlog.

In Mr. Hill's testimony, and the commissioner went as far as I think she could under the constraints, 727,000 cases pending?  Isn't one of the tests of any system going to be its reduction?  I would think so.

The average processing time of 480 days--I'm not quite sure what that all means, from beginning to end.  That's a lot of cases that have a long time to be processed now.

I think that's outrageous.

The Chairman has very much joined in, and I think has really led the way to try to bring attention to this.

So, we'll ask you a lot of detailed questions, and if you'll answer them, but I do think we need to signal that the test of the new system will be whether it addresses this and if not, why not; and I do think that part of the answer is going to be resources.

I don't see how any system, no matter how well designed, works without resources.

Maybe we use this analogy too often, because I come from Michigan, but, it doesn't really matter how well a car runs if there's no gasoline, whatever the resource, whatever the source of the gasoline--I should use "of the fuel,'' I shouldn't say gasoline, fuel.

So, I think we should put ourselves on notice that if there isn't a substantial reduction of this, and so I'll just ask any of you pointblank, are any of you confident that this new system will mean in a couple of years a dramatic reduction in the number of pending cases?

I guess since it's starting in one region, the answer is there can't be right in a short period of time, right?

How about three years from now?  What's the plan?  How quickly is this supposed to be spread to other places?  Do we know that?

Mr. SKWIERCZYNSKI.  Well, I don't think the commissioner has laid out exactly the rollout strategy.

We in the American Federal Government Employees (AFGE) union think that she put the cart before the horse.  There are different options that one could use to improve the disability process.  She's decided on an option, issued regulations, and now it's done, and they haven't even tested it.

That's a dangerous step to take, to without any testing or piloting, to issue regulations and say, "Here's the process.''

Now, during the redesign experiment, people, the consumers of this disability program, disabled people said they want a caseworker approach.  Why isn't this being piloted?  Why didn't the commissioner look at a caseworker approach, where the person you deal with makes the decision?  Makes it more user friendly, not adds but removes some of the litigation.

When you have a litigious process, it's going to take time, it's going to take a lot more time writing a lengthy decision that another appellate--at another appellate level has to be rebutted, and then both of those decisions go to another appellate level and you create a conflict.  That's going to take a lot of time, right through that process.

So, I don't see this at all cutting down backlogs.

One thing that was done, you certainly, if you strip the last appellate level, you're going to shorten the end point.  You know, you're going to get to court quicker, because you've sliced an appeal.

As I testified, that particular appeal, the Appeals Council had a 30 percent remand and reversal rate, so there's a lot of people who their cases will probably be decided in error because they couldn't avail themselves of that appeal.

I don't know that that's where we want to go, to shorten the process and ensure that a certain segment of the claims are going to be decided erroneously.  I don't see where that gets to where we want to go.

Mr. HILL.  The implementation schedule is lengthy.  I think today the commissioner mentioned something about five years.

Mr. LEVIN.  Right.

Mr. HILL.  I think that the schedule, as I ‑‑

Mr. LEVIN.  With adequate resources, she said.

Mr. HILL.  As I understand it, there will be--Region I starts, it will be a year.  If everything goes well, then it will be rolled out in Region 8, then Region 10, then Region 7. Those are our four smallest regions.  I don't know the time frame for the rest.

I think when you have rolled out those four regions, you will probably have less than 20 percent of the hearing office workload in DSI hearing offices.  The other 80 percent will still be under the old system.

So, I suspect there's quite a lengthy period of time before we are going to--we in Region 5--I'm from Ohio--I don't think we'll see it for four years.  We are the second biggest region.  We're probably going to be near the last.

Ms. FORD.  I'd like to comment. From the perspective of claimants, the Commissioner has gone after some very critical issues here in terms of developing better evidence earlier in the process, and moving some of the cases more quickly through the system.

I think the new FedRO level is designed to help get at the evidence issue.  The FedRO will have subpoena power. Now, claimants and their representatives don't have any control over whether they can get that evidence and how quickly they can get it.

So, I think she is going after some of the key pieces, and in good faith, is looking at trying to improve the system up front.

I think it's absolutely critical that--and I hope my testimony made this clear--it's absolutely critical that all the players be involved from this point on in terms of observing what is happening, provide feedback to the SSA and to the Subcommittee, and maintain that continual loop of information so that where there are problems they can be addressed quickly.

I wouldn't want to see a problem go down the road very far and have a lot of people affected by it if there were a way that we could catch it early.

So, I see it as a dynamic process that we all participate in, and that we have a responsibility to participate in.

Thank you.

Mr. LEVIN.  Yes, sir?  Is it all right if we keep going?

Chairman MCCRERY.  Sure.

Mr. LEVIN.  Yes, sir.

Mr. BERNOSKI.  Yes.  I was just going to add that the--I think the backlogs will be here, these large number of cases, for some time in the future, but also, these backlogs to a large extent are created by other factors that are outside the control of the SSA, such as the economic condition.

We know when the economic conditions have a downturn, it seems that we have more filings, so we have more cases that we have to handle--the demographics of the population.

So, there are these other factors that affect the number of cases that come into the system, and it's not that the people aren't working hard like the commissioner indicated.

The ALJ and the assistant and the people, and not only the judges, but the other people in the Office of Hearings and Appeals, last year, we disposed of about 600,000 cases.

That's a lot of cases when you consider you're taking these one at a time.  That's kind of the albatross in this system.  We have 725,000 cases.  We hear them one at a time.  We don't package them.  That's a big job.

There's other factors that impinge upon it that no one really has any control over.

Mr. LEVIN.  Well, when you say no control, I think it would mean if there are more cases, you need more resources to handle the cases, so it isn't quite that we have no control over it.  It means we're not controlling.

Mr. BERNOSKI.  Precisely.  We don't have any control over the cases that are coming into the system.

Mr. LEVIN.  So, whatever the differences might be about this experiment, it would seem essential that there be adequate resources for both an introduction of a new system and for the utility, the implementation of the old system. and as you say, Ms. Ford, adequate participation by everybody in implementing a new system.

So, I think we better leave here today, I think all of you believe that there has to be adequate resources to make a system work.

This is not an acceptable backlog, is it?  Should we ask you to study this?

Mr. ROBERTSON.  We'd be happy to.

Mr. LEVIN.  Okay.  Well, we'll chat about this afterwards.

Thank you very, very much, and thank you for this time.  I think it's been a very useful hearing, and we leave, I think, with the sobering sense that we've got a responsibility to make sure that this agency has the resources that it needs.

Thank you, Mr. Chairman.

Chairman MCCRERY.  Thank you, Mr. Levin.

Thank all of you very much once again for appearing today and sharing with us your testimony.

I'm sure we will be calling on some of you in the future as we go through this process of getting the new system in place, and we'll urge you to share with us at that time your impression of how it's going.  Thank you very much.

This hearing is adjourned.

[Whereupon, at 1:00 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow]

Union of American Physicians and Dentists, Richard C. Dann, statement