Good morning Chairman Rangel,
Ranking Member McCrery and Members of the Committee on Ways and Means. My name
is Colleen M. Kelley and I am National President of the National Treasury
Employees Union (NTEU). NTEU represents over 150,000 federal employees in 31
agencies. Among them are the nine hundred Attorney-Advisers and other staff
members in approximately 110 Office of Disability Adjudication and Review
(ODAR) Hearing and Regional Offices across the United States. Our union
has long been troubled by the unacceptable backlog of cases before ODAR and
believes that prompt congressional action is needed to resolve this crisis in
service to the American public, particularly those disabled Americans applying
for earned social insurance benefits.
Disability adjudication at SSA has a long and troubled
history. The current problems with the SSA disability program began in the
early 1990s when the cases pending at OHA hearing offices rose from
approximately 180,000 in 1991 to approximately 550,000 in mid-1995. Currently
over 750,000 cases are pending at ODAR hearing offices and processing times in 85%
of all hearing offices are in excess of one year. However, a quick review of
the history of the number of cases pending at ODAR demonstrates that the
backlog problem is not altogether intractable.
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The number of cases pending at OHA hearing offices declined
from 1995 through 1999, and in fact by the end of FY 1999 there was no longer a
backlog, since 300,000 cases was deemed to be the optimum number of pending
cases for efficient adjudication. The decline in pending during that time
period is the direct result of the over 220,000 decisions produced by
initiatives included in the Short Term Disability Program (STDP), the vast
majority of which were produced by Senior Attorneys. The Hearing Process
Improvement program (HPI) ended the Senior Attorney Program. The demise of the
Senior Attorney Program and the rise of the backlog were not coincidental and
are illustrative of the management deficiencies that have plagued the
disability program.
Over 750,000 cases are currently pending at ODAR hearing
offices. This translates into an average processing time of 510 days at ODAR.
Even this is somewhat misleading. Currently, the average processing time for a
case that proceeds through an ALJ hearing decision is 553 days. In the Chicago
Region the average processing time through an ALJ hearing decision is 727 days;
3 days short of two years. Even these unconscionable numbers do not include
the time the case was at the State Agency for an initial and reconsideration
determination. To further darken the picture is the specter of significantly
increased receipts resulting from the aging “baby boomers” and the less than
robust national economy. Unless decisive action is taken now, the dysfunction
of the disability system may lead to the public’s loss of faith in Social
Security.
The salient fact about the current SSA disability
adjudication process is that it is unconscionably slow causing untold harm to
some of the most vulnerable members of society. None will dispute that the
public deserves far better service than SSA is presently providing. The
current situation is both a failure of adequate funding and of proper planning
and management.
Additional resources are very much needed as well as a
reform of an inefficient adjudicatory process characterized by an insufficient
number of adjudicators and the misuse of those adjudicators. Requiring an
Administrative Law Judge (ALJ) to adjudicate each and every case at ODAR
hearing offices is grossly inefficient and extremely expensive. Many cases
(dismissals, fully favorable on-the-record cases, and requested closed period
cases) can be disposed of without ALJ involvement.
Given the underfunding of the agency, SSA is under an
absolute duty to use what funding it has as efficiently as possible. This year
Congress has provided greater funding, and SSA has decided to use part of that
increase to hire 175 new Administrative Law Judges; unfortunately, SSA has not
seen fit to provide adequate staff to support these new ALJs. Recently, SSA
conducted the largest hiring of ALJs (135 ALJs) in this nation’s history, and
intends to hire at least 40 more ALJs before the end of the fiscal year.
Certainly, the hiring of such a large number of new adjudicators will have an
impact on SSA’s disability backlog. However, the number of support staff for
ALJs in ODAR was critically low before the recent hiring. While it is not
altogether clear how many additional support staff SSA intends to hire this
year, even the most optimistic projections (143) are grossly inadequate. Hearing
offices were critically understaffed before the acquisition of as many as 135 new
ALJs (and 40 more to be added this fiscal year) and are in far worse position
now.
In his recent response to questions from the House
Appropriations Committee, the Honorable Ronald G. Bernoski, President of the
Association of Administrative Law Judges, stated that a judge could not perform
his/her work in isolation and the support of sufficient competent and trained
staff is essential. He further indicated that adequate staff included 2.5
attorneys and 2.0 clericals for each ALJ. While hiring a large number of new
ALJs “looks good”, unless they and the current ALJs are properly supported, a
reasonable return for the expenses incurred simply will not happen.
Without sufficient staff, SSA cannot prepare enough cases to
fill the dockets of the ALJs or timely prepare and issue the written decisions.
More ALJs without more staff will mean even more unfilled dockets, decreased
ALJ productivity and wasted SSA assets. It is prudent, if nothing else, to use
remaining funds to hire the necessary staff to make current ALJs productive.
No doubt part of the reluctance to properly staff ODAR
hearing offices is the Administration’s commitment to “contracting out” many
inherently governmental activities. Additionally, the Agency places a great
deal of emphasis on the benefits of automation in improving Agency operations.
The GAO Report of December 2007 reported that many SSA senior managers and ALJs
recommended a staffing ratio of 5.25 support staff to administrative law
judge. It also indicated that the recommended staffing ratio could change as
SSA implemented planned automation initiatives intended to improve the hearing
process and increase efficiency. In many instances this emphasis on automation
may well be justified, but in other areas experience has shown its relative
merits are questionable. Automation may improve the situation over time, but
the fact of the matter is that SSA automation initiatives rarely, if ever, come
in on time, and even more rarely deliver what was promised.
SSA is also committing funds to establishing “National
Hearing Centers”. The first is already operational in Falls Church, VA; the Commissioner recently announced a second to be situated in Albuquerque, NM, a city that already has a hearing office. It is not clear what operational
efficiencies are achieved through the establishment of these adjudicating
entities that are not already and better served at hearing offices. Certainly
the capacity for conducting video-conference hearings already exists in nearly
every current hearing office to facilitate conducting remote hearings and for
adjudicating temporary excess workloads. The centralized nature of National
Hearing Centers will alienate the public and further damage the Agency’s
credibility. For more than seventy years SSA has strived to maintain
face-to-face contact at the local level with the public it serves. This is one
of the factors that separate SSA from the majority of federal agencies. National
Hearing Centers would significantly weaken the bond between SSA and the public
it serves.
The advent of the electronic hearing folders facilitates movement of cases to
other hearing offices as easily as to a National Hearing Center. There is no operational
justification for the establishment of such centers. Moreover, their unique
staffing structure emphasizes the Agency’s commitment to achieving its
political goals over providing high quality service to the public.
Interestingly enough, in addition to hiring new ALJs, SSA
has already commenced a program that if properly implemented will eliminate the
backlog. Commissioner Astrue has reinstituted a version of the old Senior
Attorney Program that was responsible for eliminating the disability backlog in
the 1990’s. Not surprisingly, the current program, the Attorney Adjudicator
Program, is proving to be a success in spite of some ill-founded limitations.
However, since its commencement, improvements have been authorized and its
scope expanded. Nonetheless, it is this program with further modifications and
additions that shows the way to an adjudicatory process at ODAR that is both
effective and fiscally responsible.
Judge Bernoski has noted on numerous occasions the necessity
of reducing the number of cases that proceed to an ALJ hearing. In his
response to questions from the Appropriation Committee he stated, “Social
Security can no longer have over 90% of its disability cases continuing on to a
full hearing before an administrative law judge.” Judge Bernoski further
stated “nowhere in our judicial system is a judge required to take to hearing
such a high percentage of cases compared to the total docket.” NTEU absolutely
concurs.
The simple fact of the matter is that neither a hearing nor
an ALJ is needed to dispose of every case. By relieving ALJs of the
responsibility for adjudicating cases which do not require an ALJ, the ability
of ALJs to focus on those cases requiring their expertise can be enhanced. That
is the rationale behind the Attorney Adjudicator Program.
Attorney Adjudicators, who have limited decisional authority,
augmenting the ALJ corps constitute an effective and fiscally responsible adjudicative
process. The one area of controversy involving the former Senior Attorney
Program, decisional accuracy, is not a problem with the current program.
Initial accuracy figures for the Attorney Adjudicator Program show an accuracy
rate of 95%.
Experience has demonstrated that between 25-40 % of claims
appealed to ODAR hearing offices could result in fully favorable decisions without
an ALJ hearing. Additionally, 15-17% of cases appealed to hearing offices are
dismissed, many because of abandonment by the claimant or technical defects.
Very few of these cases require ALJ involvement. Such dismissals should be
handled by Attorney Adjudicators thereby freeing the ALJ to adjudicate cases
requiring an ALJ decision. Consequently, 40-50% of appeals to ODAR can potentially
be adjudicated without the involvement of an ALJ.
The success of the former Senior Attorney Program in
eliminating the backlog of the 1990’s and the very favorable beginning of the
current Attorney Adjudicator Program render arguing the merits of the concept of
attorney adjudication unnecessary. Management has recently announced a
significant increase in the number of Senior Attorneys that will further
increase the capacity of the current Attorney Adjudicator Program.
Nonetheless, despite the promise of the Attorney Adjudicator
Program, the current crisis is of such magnitude that additional changes are
required if SSA is to get control of the backlog problem within an acceptable
timeframe. Recently, the Agency announced an increase in the number of Senior
Attorneys to 450; a net increase of 81 positions. However, the time allocated
to case adjudication is typically 25% or less. At this rate, the Agency
expects approximately 30,000 fully favorable adjudications this fiscal year.
While this may temporarily stem the increase in the pending cases, its long
term effect, even considering the augmentation of the ALJ Corps to 1,250 ALJs,
will not eliminate the backlog.
By increasing the number of Senior Attorneys to 700 and
permitting them to spend 50% of their time reviewing every disability case
appealed to ODAR and adjudicating the 40-50% of cases that do not require ALJ
participation, SSA can immediately reduce its pending cases by well over
100,000 cases a year in spite of the increased receipts expected.
The Attorney Adjudicator Program does involve decreasing the
availability of the attorney advisers for their traditional role of drafting
ALJ decisions. However, several other efficiencies are promoted by the
Attorney Adjudicator Program. Attorney Adjudicators work on “unpulled” or
“unassembled” files. Those that result in fully favorable decisions do not
have to be “pulled”. The benefit from not having to “pull” these cases cannot
be overstated. Today there are approximately 442,000 cases pending pulling; a
workload that will require over 200 days to complete if no new cases were
received by ODAR during that 200 days. Most ALJs will not hold hearings on
“unpulled” cases and ODAR’s difficulty pulling sufficient cases to maintain ALJ
dockets is a significant factor in the creation and maintenance of the current
backlog. Each disposition by an attorney adjudicator is one less case that
must be pulled.
Attorney Adjudicators would continue to draft ALJ decisions
in addition to handling their own adjudicatory dockets. Skilled decision
drafting remains a vital component of the ALJ adjudicatory process. Retaining ODAR’s
most skilled staff to perform that duty is essential if ODAR is to continue to
produce quality decisions. Assigning decision making duties to attorneys whose
primary duty now is to advise ALJs and draft decisions is obviously going to
result in a decrease in decision drafting capacity. SSA now has the assets to
hire an additional 200 attorneys to maintain sufficient decision drafting
capacity and 100 additional technical staff to process the increased number of
decisions. Even considering the cost of the promotions of current employees
consistent with their new duties, the total expense is far less than that
involved with hiring the massive number of ALJs and the staff that would
otherwise be necessary to support the ALJs.
In addition to increasing the number of attorney
adjudicators, small procedural adjustments would further enhance operational
efficiency. Currently, Attorney Adjudicators may conduct pre-hearing
conferences. Currently they can issue interrogatories to secure vocational and
medical expert input. Often this is all that is required to perfect the record
and allow for a fully favorable decision. While written interrogatories significantly
expand the number of cases for which Attorney Adjudicators can issue fully
favorable decisions, they can be cumbersome and time consuming. ODAR should
authorize the attendance of medical and vocational experts at the pre-hearing
conference thereby increasing decisional accuracy while decreasing processing
time.
If the current Attorney Adjudicator Program is expanded as
detailed above, ODAR attorneys could dispose of 100,000 fully favorable
decisions and dismissals or more each year, while still spending nearly half
their time drafting ALJ decisions and advising ALJs. These cases would not
require the expenditure of any ALJ resources and would involve relatively
little staff time. This would allow the Agency to commit a greater amount of
its resources to the cases that required ALJ adjudication.
Let me also address the situation with OFEDRO. SSA has
suspended further expansion of the Office of Federal Reviewing Officer
(OFEDRO). OFEDRO has the potential to meaningfully help with the disability
determination backlog if properly implemented. If SSA intends to resume hiring
of new staff for FEDRO, it should give preference to the existing, high
qualified and experienced staff at ODAR. In order to recruit the best and
brightest staff for any expansion of the program, it should provide relocation
allowances for all new hires recruited from elsewhere in the agency. This is a
common recruitment tool in the federal sector for highly qualified
professionals and has been underused by the agency.
Mr. Chairman, I thank you for this opportunity to present
NTEU’s statement on this important matter. NTEU remains ready to work with the
Ways and Means Committee to do all that we can to address the crisis in the
disability determination backlog. Thank you.
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