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Post by Orly on Mar 23, 2010 23:10:49 GMT -5
I heard AALJ just filed a grievance because the Agency informed them that the Agency plans to create a cadre of ALJs who will handle overpayment cases. These cases will no longer be rotated among the non-cadre ALJs.
AALJ claim that there is no significant business reason for failing to rotate these cases. These cases, on the whole, are no more complex than any other group of cases and, in most instances, are simpler than a disability case.
AALJ further contend the rotational policy is necessary to ensure the appearance of fairness in that there is no pre-selection of ALJs by the Agency; to distribute the workload evenly; to create a sense of fairness for the ALJs; and to ensure that claimants are treated fairly.
*yawn* I'm still pretty new at this so I don't care. What do the old hands think?
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Post by odarite on Mar 24, 2010 5:49:34 GMT -5
Was not aware of the planned cadre or of the grievance. And that's all good by me. Yawn. I second your (lack of) emotion.
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Post by valkyrie on Mar 24, 2010 5:55:48 GMT -5
I heard AALJ just filed a grievance because the Agency informed them that the Agency plans to create a cadre of ALJs who will handle overpayment cases. These cases will no longer be rotated among the non-cadre ALJs. AALJ claim that there is no significant business reason for failing to rotate these cases. These cases, on the whole, are no more complex than any other group of cases and, in most instances, are simpler than a disability case. AALJ further contend the rotational policy is necessary to ensure the appearance of fairness in that there is no pre-selection of ALJs by the Agency; to distribute the workload evenly; to create a sense of fairness for the ALJs; and to ensure that claimants are treated fairly. *yawn* I'm still pretty new at this so I don't care. What do the old hands think? I'm willing to bet that far too many overpayments have been waived without any regulatory basis. Its a two-part test where the first part is very tough for a claimant to meet the first part of the test in which he/she cannot have had any liability in creating the overpayment. 20 CFR 404.506
Fault as used in without fault (see §404.506 and 42 CFR 405.355) applies only to the individual. Although the Administration may have been at fault in making the overpayment, that fact does not relieve the overpaid individual or any other individual from whom the Administration seeks to recover the overpayment from liability for repayment if such individual is not without fault. In determining whether an individual is at fault, the Social Security Administration will consider all pertinent circumstances, including the individual's age and intelligence, and any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) the individual has. What constitutes fault (except for deduction overpayments—see §404.510) on the part of the overpaid individual or on the part of any other individual from whom the Administration seeks to recover the overpayment depends upon whether the facts show that the incorrect payment to the individual or to a provider of services or other person, or an incorrect payment made under section 1814(e) of the Act, resulted from:
(a) An incorrect statement made by the individual which he knew or should have known to be incorrect; or
(b) Failure to furnish information which he knew or should have known to be material; or
(c) With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.Even if the claimants can make it past the fault test, they then have to show that recovery of the overpayment would be "against equity and good conscience," or in other words, collecting the overpayment would leave them impoverished. I have seen countless ALJs ignore the first part of the test because they feel sorry for the claimant and don't think its fair that the claimant should suffer if part of the problem was a mistake by SSA. It must drive the payment centers nuts. Personally, I think the reg is pretty harsh too, and I certainly would have no problem passing these cases on to a "Scrooge Cadre." |
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Post by Well on Mar 24, 2010 7:23:06 GMT -5
A "Scrooge Cadre" sounds wonderful. Other than the guy who got caught working for five years after receiving benefits, I can't think of an overpayment case I've seen that didn't have some element of pitifulness in it. Even people that probably should have known are hit very hard by the repayment process.
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Post by Orly on Mar 24, 2010 7:49:35 GMT -5
A "Scrooge Cadre" sounds wonderful. Thanks for the info everyone. I care even less about this topic now that I know what it is about. A scrooge cadre does sound wonderful indeed.  |
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gnm
New Member
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Post by gnm on Mar 24, 2010 9:05:06 GMT -5
I am an 8-year paralegal with 33 total years at SSA; 24 in a district office, including 3 years working nothing but overpayments; and a total of 12 years in management at DO and ODAR. I feel strongly that all stakeholders would benefit from some form of "centralized" o/p cadre, whether it be designated experts (PA's and ALJ's) in hearing offices or stationed somewhere centrally. The numbers of these cases are so small that the average hearing office employee (at any level, clerical, analyst, ALJ) will never see enough to develop expertise. I also believe some experience such as mine is crucial. I think AALJ should consider addressing this matter from the persective that only well-educated and experienced ODAR folks would be in the best position to ensure that SSA does not violate the rights of o/p'd persons. All too often it is the personal conference decison makers who are the real "scrooge cadre", as directed by local management. The regs speak in terms of "shall waive"; not don't waive unless. The regs do not prohibit assigning degrees of fault; they say agency error should not be the sole basis of finding someone without fault. The regs require considerastion of mental, etc. limitations; the DO's complain that they don't know how, so they just don't do it.
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Post by coloradoman on Mar 24, 2010 12:15:37 GMT -5
There is no legitimate reason to need a specialized overpayment cadre for overpayment cases. Overpayment legal issues are fairly simple and the case files are usually small compared to DIB and SSI cases. I have always viewed overpayment cases as easy numbers to make up for large case file DIB denials.
There are many cases where the claimant knew or reasonably should have known of the overpayment, but there are also cases where that is not the case and the agency made error unknown to the claimant. Then the claimant, who survives on a small monthly check is thrown into financial turmoil through no fault of their own. Uncle Sam has been known to make errors on its own and go back years later to discover it and create a bureaucratic nightmare for claimants. It is most fair and consistent with due process to evenly spread the overpayment cases among all ALJs. Don't forget the additional issue of whether recovery would defeat the purpose of the Act.
The only reason I can see why SSAwould create an overpayment cadre is to have a small group of ALJs whose decisions they feel they can control to decide cases the way SSA wants them to be decided rather than have a larger group of ALJs who exercise judicial independence.
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Post by valkyrie on Mar 24, 2010 12:58:56 GMT -5
I bet if the AALJ polled it's membership it would find that the great majority of ALJ's would be happy to transfer OP cases to a specialized ALJ cadre. Take the sanction cases too! |
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Post by barkley on Mar 24, 2010 15:15:08 GMT -5
And the Worker's Comp offsets!
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Post by coloradoman on Mar 24, 2010 15:33:52 GMT -5
I would gladly take more of the unusual and less often seen cases to break up the tediousness of doing just DIB, SSI, and SSDC cases. After a while of handling the same cases over and over again year after year, the brain goes into a sort of robotic 25 percent brain cell usage status. It takes an occasional unique case to wake up the brain cells again! Besides, all ALJs should have some experience handling all types of cases within the agency.
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Post by coloradoman on Mar 24, 2010 16:18:10 GMT -5
If you guys keep expanding the specialty ALJ cadre case load, there will soon be no cases left for you.
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Post by valkyrie on Mar 24, 2010 16:33:21 GMT -5
If you guys keep expanding the specialty ALJ cadre case load, there will soon be no cases left for you. Child's cases? |
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Post by coloradoman on Mar 24, 2010 16:43:19 GMT -5
I hereby declare all regular ALJs on fully paid leave while ODAR bean counters focus their efforts on making sure the specialty ALJ cadre works down their ever rising backlog.
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Post by valkyrie on Mar 24, 2010 18:15:19 GMT -5
Official board motion: I'd like to nominate coloradoman for the special everythingelsebutdisability cadre. Do I have a second? Second. All in favor? |
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Post by lawmaker on Mar 24, 2010 22:54:42 GMT -5
And the Worker's Comp offsets! I hadn't seen the proposal nor the grievance. A few years ago there was a proposal to centralize all RSI/overpayment/wc/income and resource issue cases in a cadre or something of that nature in order to benefit not just from specialization, but more to assure consistent application of policy. There was a debate in another thread as to POMS and when to use or not. My impression is that compared to disability cases, policy for RSI cases is contained in POMS more than any other SSA field. The reason being that the first level review is more of an actual adjudication by the FO personnel, and the POMS gives them guidance not available in regs or rulings. Sanctions cases are interesting. That having been said, I will point to the experience of the medicare cadre. The big box cases were easy but proliferative. A poor performer - whether alj or writer - got the benefit of hiding poor production in medicare big box. An agency favorite would get to do big box and TRAVEL. One of those unspoken perqs. Look for the cadre spots to go to aljs with similar charcteristics, with a small handful going to say - aljs with prior experience in the field offices. It won't matter that they have video all over the country. INCLUDING THE FIELD OFFICES in more remote locations. The beneficiaries of the cadre positions will get the benefit of travel. They'll see to it. |
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Post by Propmaster on Mar 25, 2010 11:10:16 GMT -5
I can see both sides of this issue. On one hand, I think having to keep up on all the different SSA rules is not too cumbersome for an ALJ - did you see the position description from 1994 quoted in another thread? I can't see how having to know a few non-disability topics is that hard.
I can also see, however, that in practice it IS hard, having appeared before ALJs who not only don't know overpayment rules (even simpel things, like how to define "without fault"), but aren't interested in having a discussion of the legal issue or review of a legal brief to see what the representative is trying to say.
I am certainly not painting all ALJs with this brush; but I can see how some seemingly willfully ignorant ALJs might be better served (and the claimants better served) by operation of a carde.
As Coloradomom pointed out, though, where does this slippery slope end? All of the Title XVI non-disability issues are in the same boat. And the TII non-disability. And the new DA&A analysis (in some cases). And maybe all eye-related cases could go to a central unit with MEs on staff. And then the mental cases could be broken off...
Anyway; I'm against it because I believe I would like the variety and I already have experience with the non-disability rules. But I could see it both ways.
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Post by masondixon on Mar 27, 2010 10:56:35 GMT -5
With all due respect to those of you describing overpayment cases as simple to decide, I think you are mistaken. Unfortunately, SSA is making many more huge mistakes in its overpayment calculations. When a claimant disputes the underlying premise of an overpayment, which invariably happens in most cases, an ALJ must assess whether an overpayment even exists. I have yet to see SSA properly calculate a workers' compensation offset properly. The documentation provided by SSA in SSI overpayment cases is simply inadequate on its face in nearly every appeal. I have seen overpayment situations actually turn into underpayments of benefits after a good attorney and knowledgeable ALJ and attorney adviser take a good look at the evidence. Also, SSA is now withholding overpaid benefits from tax refunds; and they recently got authority to recover very old federal debts from SS benefits regardless of the normal 7 or 10 year statute of limitations, e.g. student and small business loan defaults. I think the authority was included in the FY 2010 budget bill.
The cadre may not be a bad idea. However, I would think SSA should talk to the Judge's union first under the current executive partnership labor-management agreement. I will believe it will happen when I see it. If SSA is so concerned with too many favorable decisions by ALJs in overpayment cases, they need to focus more on SSA field offices following its own regulatory provisions and better documenting its decisions.
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Post by southeastalj on Mar 27, 2010 11:17:30 GMT -5
I agree that the issues to be decided in most overpayment cases are pretty straightforward. The difficulty, at least in my part of the world, is that it usually takes the field offices literally years to realize that an overpayment has occurred and then promptly lose the hearing request for another 2 years for good measure. By the time the file makes it to me, I am looking at things that happened a decade ago in a falling apart paper file with no clear rationale from anybody as to who knew what when. The claimant will then come in and say I called and came into the office 10 times about this and "somebody" told me it was OK for me to receive the money...
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Post by barkley on Mar 27, 2010 12:51:33 GMT -5
If SSA is so concerned with too many favorable decisions by ALJs in overpayment cases, they need to focus more on SSA field offices following its own regulatory provisions and better documenting its decisions. I wholeheartedly agree with this statement. I can't guess how many overpayment files I have worked with wherein it was impossible to determine the basis of the overpayment. Sometimes the claimant will have several notices, each giving different amounts. If I can't read the notices and understand what caused the overpayment or determine how much money is due, how can I expect a claimant to understand? If SSA is going to ask the claimant to refund thousands of dollars, it should be able to articulate why in a way that an average person could understand. An ALJ should not have to call the DO as a witness in order to get to the bottom of what is going on with the case. |
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Post by counselor95 on Mar 27, 2010 13:49:03 GMT -5
With over 20 years experience in both the field offices (before law school) and ODAR (after law school and 10-years in other work), I can definitely tell a difference in overpayment cases. Both overpayments and CDRs appear to have been pushed to the bottom of the priority list for the field offices/teleservice centers/payment centers, and many of the overpayment cases I get now as an ALJ are not documented. I agree, the agency is often not fulfilling its burden of proof to even show these overpayments exist. Years of neglect by overworked field office employees/etc create a confusing mess.
Even in relatively simple cases, the agency has dropped the ball. I have recently spent 5 months waiting for a photocopy of a duplicate check -- a large retro check-- that was apparently issued over a year after the original check went out, without anyone checking to see if the first check had been cashed! [Both were cashed, and the original was cashed timely.] In the old days, no duplicate would have been issued until someone had checked to see if the original had been cashed; if it had been cashed, then photocopies would have been sent to the claimant to ask if that was his/her signature. Apparently, these days, no one has the time to investigate up front -- another example of "there is never enough time to do it right, but always time to re-do mistakes".
The solution is not a special cadre, but the agency placing greater emphasis on doing it right the first time, documenting overpayments well, and then ALJs will be able to make proper decisions. As it is now, I will give the claimant the benefit of the doubt if the file is not properly documented -- as the agency has not met its burden of proof that an overpayment exists in the specified amount.
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