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Should Security Redesign (again): Still Under Construction

By Scott B. Elkind, Esq.

At the last meeting of the Social Security Roundtable, a gathering of select members of various administrations, agencies, associations and judiciary, on 5/24/04, various elements of the new claims processing model were revealed.

Several pressing concerns were addressed by attending Associate Commissioner Martin Gerry. He pointed out that in the current system there is no communication between the initial decision maker and the subsequent (appellate) decision maker. He stressed the need for a “feedback” loop by which the initial decision maker could learn from the appellate decision. To this end, the initial decision maker in the newly proposed system would be a reviewer officer (RO). The RO role has not been clearly delineated, but SSA is “leaning toward” and attorney for this position. There would be an RO section which would be autonomous and would be charged with the duty of completing development of the administrative record following initial DDS file workup. Once the record has been developed, the RO would render a detailed decision with support for approval or denial of benefits. There was no feedback loop as of yet for information to be transmitted back to DDS to guide its file development performance. Representatives from DDS voiced their concern that there was no internal review of RO’s to insure consistency of claims decisions. Following an RO denial, a claimant would be entitled to an ALJ hearing. Associated Commissioner Gerry urged the need for ALJ’s to have better training as well as be part of a peer review process in hope of creating greater consistency in decisions. As seen, there will be no reconsideration and no Appeals Council in the new proposed model.

The current state of SSA claims determination was summarized succinctly by an attending policy analyst who stated: We are hemorrhaging and have no idea how to stop the bleeding.” This was in response to the following statistics: 70% allowances following AC remand and 60% overall remand in the federal courts. These statistics were believed to summarize the current poor state of decision making in the administration which hopefully will be addressed in the new proposed decision making model. It is hoped that more consistent decisions would eliminate what was termed a “fatigue factor” pervasive in the current system.

The most interesting part of the roundtable was a side discussion I had with an congressional staffer working on technical aspects of the new electronic disability claims file system (EDIB). The proposed system would create an entirely digital claims file. Claimant’s representatives would be responsible for either scanning in the documentation and transmitting electronic files or sending the documentation to a central scanning facility for entry into the database. At this time, security and privacy concerns still dominate this area and there is no access for representatives to the electronic file in advance of hearing. This constitutes a major hurdle for this proposal. Another hurdle is access of the electronic file even at the hearing. This would require a large projection screen or several smaller screens for each participant to view file documents during the hearing process. Further, there would need to be monitors present and available in the Office of Hearings and Appeals for use by both representative and the public for file review.

The administrative record itself will be handled differently. There will actually be two administrative records. The first will be an immutable record for the hearing. The second will be a “markup” record with notations by the ALJ which will not be available to claimant’s or their representatives.

There are many undefined aspects concerning the proposals made. It is my belief that many aspects remain to be devised while others are deliberately being kept under wraps and will be hoisted upon practitioners without much warning. As it stands, the current proposal would be extremely expensive to implement given the large number of computers and screens which would have to be purchased for the OHA offices across the country. Further, the lack of access to the administrative record will cause a nightmare in terms of file development as there is no “feedback loop” for claimants or their representatives to know what is in the proposed administrative record in advance of the hearing. This clearly will not work as proposed and will need serious consideration before implementation in any modified fashion. The original “feedback” loops proposed have been done so with a positive spin stressing the end result of consistency of decision. The downside of this is uniformity of decision. This mechanism may be employed as an underlying means of streamlining a uniform decision making process prior to hearing. With the current hostile climate between the Association of Administrative Law Judges (AALJ) and SSA caused by proposals to reduce or eliminate ALJ positions, the “feedback” loop may be no more than an artifice by which to coerce ALJ’s to render claims decision favoring certain SSA objectives. If so, it will bode poorly for claimants.

There has been discussion of another roundtable discussion in the Fall and I will continue to report on all developments brought to light. So far, there is substance and only broad sketches SSA has been willing to reveal and discuss.

Posted in Social Security Disability Benefits | Tagged , , , |

 

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