The New York State Office of Temporary and Disability Assistance (OTDA) is the state agency charged with helping New York’s most vulnerable citizens achieve and maintain economic security through a range of work supports and services.  OTDA’s mission is multi-faceted:  Assist those who are working but still struggling to meet basic needs; help work-capable individuals find and maintain employment; and assist those individuals with special needs for whom engaging in work is not a realistic priority.  In order to fulfill this complex mission, OTDA oversees a range of programs that together weave a web of services and benefits to help families who often face more than one barrier to economic independence.  These programs include employment and training services, food stamps, child support, home energy assistance, immigration services, public assistance, and SSI state supplementation.  Additionally, OTDA includes the Division of Disability Determinations (DDD), the entity which serves as the Disability Determination Service in New York, and as such is responsible for making federal disability determinations for claims filed with the Social Security Administration (SSA). 

Since OTDA’s oversight includes Federal disability determinations, the state’s public assistance programs and SSI state supplementation, our perspective encompasses both our successful relationship with the Social Security Administration with regard to disability determinations and the troubling impact the SSA backlog has on New Yorkers generally, and on public assistance clients awaiting an appeal in particular.

DDD makes medical determinations on disability claims filed with the Social Security Administration (SSA) for Supplemental Security Income (SSI) and/or Social Security Disability Insurance (SSDI).  The office collects all relevant medical evidence, and if needed, arranges for the claimant to have an examination to gather further information.  A decision regarding medical eligibility is then made by DDD based on all of the evidence.  These two programs represent the major economic support systems for the disabled.  Additionally, individuals receiving federal disability benefits also become eligible for essential health insurance through Medicare and Medicaid.

New York’s DDD has long had a strong partnership with the SSA.  We value this relationship greatly, as it is beneficial for our State, for the Federal government, and most importantly for disability claimants.  In addition, the DDD has a solid performance record, meeting and often exceeding performance standards.  Indeed, in addition to its standard responsibilities, DDD often takes on extra tasks such as working with SSA on pilot projects or helping other locations with reviewing their disability applications.  For example, DDD is currently working to assist SSA with addressing the backlog through the Informal Remand Initiative.  Under this initiative, the SSA sends certain cases to DDD to review in an effort to reduce the workload of the hearing officers.

Despite this initiative and other efforts by the SSA, the backlog in appeals cases persists, and the impact on New York is enormous, both at the individual and state government levels.  Nearly 38,000 New Yorkers are waiting for an appeal. These individuals wait 21 months on average, a delay that in many cases results in a tragic loss of savings, home or even life for some of the chronically ill or critically disabled individuals seeking federal benefits.  Of this total, more than 17,000 individuals awaiting an appeal are on public assistance.  This state-funded assistance is intended to be a short-term stopgap.  However, because of the long waiting period resulting from the backlog, the state is providing months, sometimes more than a year of assistance for individuals who, but for the backlog, are truly the responsibility of the federal government.  More importantly, since the public assistance grant is typically less than the disability payment, the long delay means that disabled individuals are not getting the level of financial support to which they are entitled and need from the federal government.

Moreover, the long wait places the state in a troubling position with regard to the federal rules governing the Temporary Assistance for Needy Families (TANF) program.  In cases where it has been determined by the TANF program that a public assistance client meets the federal requirements for a disability and the appropriate application has been filed to receive SSI, New York exempts the individual from TANF work requirements, and provides him or her with public assistance for the duration of the disability determination.  However, while the state exempts these individuals from TANF work requirements, federal TANF rules do not.  Therefore, while the state is providing income support to these individuals who are not able to engage in full-time work due to their disability, we are at risk of penalties for not meeting the required TANF work participation rate.  This policy is extremely problematic for states attempting to balance the conflicting demands of these two federal programs, and New York has been vigorously advocating for a common sense solution through changes in TANF regulation.  However, not only is this problem not resolved, it has been exacerbated by the long waits for federal assistance resulting from the enormous backlog.

By reducing the backlog in appeals and, therefore, reducing the waiting period, individuals whose appeals are accepted would begin timely receipt of appropriate federal assistance, therefore freeing up scarce state public assistance dollars for other pressing needs.  And for all who are waiting, reducing the waiting period would minimize the potential for loss, both financial and personal, and help these people on a path to economic stability.

Through the strong relationship between the DDD and SSA, OTDA recognizes that SSA is making a valiant effort to address the backlog despite a difficult combination of circumstances: years of insufficient funding, expansion of responsibilities, and an overstretched staff.  This problem is due in part to an inadequate number of Administrative Law Judges (ALJ) and support staff at the SSA to conduct hearings and make determinations.  However, despite repeated requests for increased funding to address this issue, the SSA has not received adequate funding to address this staffing shortage.  While Congress provided an increase in the FFY 2008 omnibus appropriations with language directing that the funds be used for this purpose, given the size of the backlog and the extensive wait times, more funding will certainly be needed.  We urge Congress to provide the SSA with sufficient funding to address this backlog and prevent it from happening again in the future.

Given the increase in funding for FFY 2008, OTDA commends SSA for hiring 135 new ALJs this year.  However, we join Senators Charles Schumer (D-NY) and Hillary Clinton (D-NY) in asking that the geographical allocation of the new ALJs be revisited.  We understand from the testimony at the House Ways and Means Committee hearing on the disability backlog that the allocation was intended to help offices carrying a significant backlog caseload, yet only 10 of the 135 new ALJs were assigned in New York, and to only four of the State’s nine hearing offices.   Furthermore, no new ALJs were assigned to the Buffalo office, even though that office currently has one of the longest wait times in the country.  The explanation that the allocation was made in this manner due to the lack of office space for additional staff is troubling.  Thousands of individuals should not be made to wait for disability assistance to which they are entitled because SSA cannot find office space.  OTDA urges SSA to reconsider the allocation plan, and stands ready to offer assistance in finding adequate office space if necessary.

In addition to increased funding and a reallocation of new ALJs, OTDA recommends that Congress consider changing the criteria currently used to determine eligibility at the time of the initial application.  ALJs are allowed significantly more discretion in allowing cases at appeal, and DDD can often tell when a case that is being rejected based on the standard of evidence for the initial application will be approved upon appeal.  If the DDD were allowed similar discretion to the ALJs, then the process would be expedited without impacting the integrity of the decision process, thereby reducing the number of cases going to appeal, and reducing the backlog.  

For the millions of individuals dealing with disabilities, SSI and SSDI are the lifeline that helps them maintain economic stability and security.  With sufficient funding and other changes, the SSA will be able to eliminate the backlog and provide this critical support to many vulnerable people eligible for and entitled to federal disability assistance.

We hope hearings like this one will catalyze changes for the SSA.  We thank you for the opportunity to comment on this important issue.