Wednesday, December 26, 2007

SSA Proposals - At What Cost?

Proposed SSA Change Would Cut Benefits for Disabled Individuals
Restricting appeals process would deny many eligible applicants their Social Security, Medicare, Medicaid and SSI benefits

SSA is proposing significant changes to the Disability Appeals process. The good news is that the agency will keep an appeal process – the past SSA Commissioner spoke of its abolition. The bad news? Unfortunately, the rest of the proposals do not bode well for appellants or claimants. The agency proposes a slew of restrictions involving submission of evidence and tightening previous procedures that allowed claimants and representatives reasonable access to Administrative Law Judge Hearings and Appeals. Perhaps the most unfortunate aspect of the new proposals is vagueness to the process, allowing the ALJs and Appeals Judicial Branch, now called the Review Board, virtual carte blanche in their decisions and other new, obtuse procedures. While increased ALJ accountability would be a reasonable goal nowadays, given the interminable wait claimants endure for a face to face hearing with an ALJ, these provisions lead in the other direction. The result is taking an existing backlog that requires action, and proposing counter-productive measures that will money. These provisions should not cost more, deny more and take longer. In reality they will likely do just that. Let’s look at what the real costs are and who benefits.

Unrepresented clients are the biggest losers. They now face additional burdens, many far too technical for the layman to comprehend and some challenge the powers of competent advocates. The burden of proof is arguably an unbearable one in these provisions. The law requires the program to be clear and specific for the majority of Americans. These provisions add layers of bureaucracy and intricate legal nuances that don’t portend to do anything of the sort. Administrative Law Judges, (ALJs ) will be able to exclude evidence, with vague or no accountability. ALJs will have the discretion to ignore evidence submitted within 5 days of the hearing. It is simply good practice for representatives or pro se clients to have evidence submitted far earlier than 5 days before a hearing. However medical events occur, providers respond at the last minute – in other words, events beyond control of the claimant will exist. These are the exception, not the norm. Five days is too short even for postal errors. Two weeks or 14 work days should be the minimum in last minute submissions. The majority of ALJs are reasonable. A minority are not, as is the case with any judicial body. This means a percentage of claimants will have medical and other evidence excluded based on the whims of a minority of Judges who adhere to vague guidelines in refusal of evidence and other procedural niceties. This is unacceptable and will increase additional claims as well as add a new layer of potential injustice in the practice. Claimants will die or have their disease progress if they are technically denied their hearings. Homes will be lost and lives ruined because of a 5 day technicality. Some will pick up the pieces and file new claims. In doing so they stand to lose years of back pay and thousands of dollars. They will usually have to wait again for two years of Medicare, when their appeal if heard, would have provided access to Medicare or Medicaid far earlier. If deadlines or other new procedural roadblocks prevail they will be expensive and increase the need for new initial decisions. New decisions, the initial ones prior to appeals, are the most error prone and add to the pipeline for new ALJ pending case, i.e., more expenses. The result. More claims denied. More new claims, not less, longer delays not shorter.

The new changes propose to remove “open” remands by closing the record at the ALJ hearing level. That is, once a case is reviewed by the review board, only the issues at stake in the original hearing can be considered by the ALJ who erred in the first place and received a remand to look at her errors. The fact that the claimant has usually waited 6 months to a year or longer to get a decision on his appeal, means his vocational viability diminishes, and almost always results in a worsening medical status (the agency has long acknowledged that conditions worsen over time). The proposals ignore these facts. Under the new proposals, we go back in time to the original hearing only, no additional current evidence may be considered. This is truly justice with blinders. This makes no medical sense and leads to speculation as to why it would make any judicial sense. Fiscal sense? The clear result will be denying more claims at appeals quicker and in a far more arbitrary manner. Thus the alleged savings. What happens to the denied claimant is the real story – they worsen, they line up at the ER, they apply again and the whole flawed process begins anew.

Claimants who have SSDI vs. SSI disability issues, face an expiration of their insured status and are thus penalized if an ALJ or other appeals level body makes an error. Again, since only the condition at the time of the hearing may be considered. This may result tin many wage earners losing insured coverage and applying for non wage earning or SSI benefits. Again, less jurisprudence, more delays, more denials. The latter is unfortunately along with vagueness in judicial responsibility, the second emerging theme of the provisions. Is this what the American people want, less disability coverage and more tax money for other projects? If so, it should be presented as such. The program is saving over a billion dollars, at what cost? The disability program exists to cover eligible individuals who are disabled, not to generate tax savings. Yet, this is the leitmotif that I s embedded in the proposals. The provisions mark a departure from the SSA mission to protect the disabled. The denied appellants simply won’t rush to file new claims on line. On line applications are simply not viable at present. If the provisions force more new applications by making appeals harder, the applicants will not turn to an online system that is at best difficult for most and at worst underutilized because it simply has never been practical for applicants to use. The older SSDI wage earner will be less likely to fumble with the computer and won’t, (the alleged viability of Internet applications begs for a GAO study in this author’s opinion).

The provisions limit reopening cases. In other words, where clear and compelling error by the agency existed and the claimant was protected to an extent, these new proposals simply shut the door. The more the agency ages, the less experienced examiners and field office personnel, the clear and compelling errors will be overlooked. This is a no brainer in terms of fairness for the disabled. It may save money, but it will result in less allowances. One wishes there was a DNA SSA test for those wrongly convicted of the ability to work despite clear and compelling error to the contrary.

The new proposals mandate an appeal to the Review board within 10 days of decision receipt. This will guarantee bad briefs. There is inherently nothing wrong with dictating the length and even font of briefs and reasonable deadlines are fair. However, dictating the time to compose comprehensive briefs to an unrealistic period, allows the claimant little time to research to statutory issues involved in a very complicated ALJ decision. It encourages “boiler plate” appeals which really benefit no one. It virtually removes the ability of a pro se claimant to full appeal rights and places restrictions on the ardent advocate who toils over a cogent brief. Claimants are allowed 5 days to object to issues in the decision. Most ALJ decisions involve hundreds, if not thousands of pages of medical and procedural records. Five days? Most striking is the requirement at the pro se claimant must analyze this twice removed judicial appeal issue and extract, then submit a statement citing the criteria (So, the claimant studies the CFR, POMS, Hallex et al?) and distills the crucial legal issues that were overlooked. This is stacking the deck against the claimant and placing unrealistic demands on a conscientious representative. Other issues such as rescheduling a hearing and mandating a telephone hearing are either geared to deny or were conceived without knowledge of the issues. AlJs may deny a claim for failure to appear at a post hearing conference – a new concept, another step and a step that will be abused by the minority of ALJs who are biased or simply have too many cases to adjudicate. There is little consistency from one ODAR to another in the procedural dealings at present (look at travel and records submission and oversight of ALJs). How, one must ask, does and ALJ assess credibility in a phone conversation? Having been in a “Telephone Hearing”, I can tell you that it is a poor alternative – why not just pick up the phone and call the claimant five days after the first denial and make a decision? The push is on to plug in rather that plead out one’s case. More latitude is offered the ALJ, more restriction the claimant and representative. These new powers open a Pandora’s Box of potential claimant neglect and abuse. The non adversarial role will spin adversity where the possibility did not exist before, even at one billion plus, the cost is too high.

Friday, December 21, 2007

Social Security's Challenge - at what cost?

Social Security has proposed sweeping changes - comments will be posted here in a week. Stay tunned.