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Post by inquisitive on Jul 2, 2010 10:56:29 GMT -5
Courtesy of Charles T. Hall's blog ...socsecnews.blogspot.com/Regs On Scheduling Hearings Clears OMB The Office of Management and Budget (OMB) must approve any regulation before it is published in the Federal Register. It has been quite some time since Social Security submitted proposed final regulations to OMB "to clarify that the agency is responsible for setting the time and place for a hearing before an administrative law judge." OMB has finally cleared the final regulations. The OMB website indicates that the completed action was "consistent with change." Social Security should publish these final regulations in the Federal Register in the near future. We will have to wait until then to find out what they say. Administrative Law Judges (ALJs) have been concerned about the proposed regulations since they believe they will take away any control they have over their dockets. Social Security wants the regulations in order to force low producing ALJs to hold more hearings and generally to force ALJs to hold more hearings. I sympathize with Social Security's desire to do something about extreme low producing ALJs. Many of the extreme low producers ought to find other employment or retire. However, I do not favor an effort to speed up ALJs generally. In fact, I think they are already trying to hear and decide too many cases. In my opinion, the process has already deteriorated significantly. I am concerned that Social Security management has unrealistic expectations about the number of cases that an ALJ can hear and decide each month. Social Security disability cases, if reduced to current value, are worth about $400,000 each -- without considering the value of Medicare. If an ALJ is hearing 50 cases a month, he or she is ruling on $20 million of benefits a month or almost a quarter of a billion dollars a year. How much do we really want to speed up people who bear such a heavy responsibility? I am also concerned that low producing ALJs will find it easy to circumvent Social Security's plans to schedule hearings for them by continuing hearings at the last minute. That will not be good for anyone. Labels: ALJs, OMB, Regulations, Social Security Hearings
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Post by Propmaster on Jul 2, 2010 16:09:05 GMT -5
I agree most with your last point. They can "set" hearings all they want; but they cannot force the horse to drink.
I know of at least one judge with single-digit monthly dispositions. At one time, the HOCALJ tried to encourage better performance by assigning cases to this ALJ. This ALJ merely had an ever-growing personal backlog.
With forcibly scheduled hearings, I would expect this ALJ to instead generate a huge backlog of cases to be decided and edited and signed, etc.
In summary, shoving things in the front end isn't the answer; it just causes indigestion.
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Post by aljsouth on Jul 2, 2010 19:24:43 GMT -5
The problem is that it won't only be the "slow" judges whose schedules are set. That is a lie of the agency. It will be all of us; and, in time, it will be done by a computer in Falls Church. Our efficiency will be compromised. I hold shorter hearings than a lot of judges. Does anyone really think the agency will abandon its one size fits all philosophy? No, I will end up with significant down time waiting till the time for the next hearing.
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Post by privateatty on Jul 3, 2010 8:44:55 GMT -5
Those that are fortunate enough to be appointed ALJs should, IMO, defend judicial independence. From what I see, ODAR will do whatver they think it takes to cure the backlog or at least be able to report to Congress that they are making inroads. The question I would ask myself if I was at ODAR is what's next? I would hope that AALJ would formally grieve this.
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Post by kingfisher on Jul 3, 2010 15:04:55 GMT -5
Those that are fortunate enough to be appointed ALJs should, IMO, defend judicial independence. From what I see, ODAR will do whatver they think it takes to cure the backlog or at least be able to report to Congress that they are making inroads. The question I would ask myself if I was at ODAR is what's next? I would hope that AALJ would formally grieve this. I understand that in the past, the AALJ used to grieve such actions and had, in fact, filed suit and won. Ever since the latest push to require 500-700 decisions per year per ALJ, I have been waiting for AALJ to fight the good fight against these judicial quotas. But, alas, I have seen no such effort. It is a pity too, because you are all correct about it hurting the quality of the work we do. So, we do our best to keep up and still give each individual a fair and impartial hearing and make the correct decision based on all the evidence. Please don't get me wrong as you read this. I love my work and will state unequivocally that this is the best job a lawyer can have. It is tough, challenging, interesting work for which I am well compensated. I wouldn't trade it for anything! |
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Post by southeastalj on Jul 7, 2010 17:27:19 GMT -5
The revised final regs have now been published by the agency- www.ofr.gov/OFRUpload/OFRData/2010-16549_PI.pdfWhile I, like most sitting judges, would prefer no reg change at all, the prefatory language is very encouraging as well as the fact this is now a 3 year test project. I give a lot of thanks to the AALJ and their efforts in exerting pressure through Congress to force the Agency to make these important clarifications. It is very hard to stop a regulatory train once it leaves the station, so to speak. As I believe Charles Hall previously said on his blog, this is the first proposed regulation that OMB has made any change to since the current administration came to power. |
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Post by Orly on Jul 7, 2010 17:52:35 GMT -5
The revised final regs have now been published by the agency- Read it, it looks like this is a disciplinary tool against serious underproducers. So long as they limit its use to judges who are putting out far fewer than 500 cases without justification (extended leave, sickness, etc), it won't bother me one bit. Of course, like everything else in .gov, I'll keep a close eye on it to see how it shakes out in reality. As for centralized electronic scheduling, it looks like a different beast all together. Guess I'll wait for that other shoe to drop. |
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Post by southeastalj on Jul 7, 2010 18:25:46 GMT -5
Read it, it looks like this is a disciplinary tool against serious underproducers. So long as they limit its use to judges who are putting out far fewer than 500 cases without justification (extended leave, sickness, etc), it won't bother me one bit. Of course, like everything else in .gov, I'll keep a close eye on it to see how it shakes out in reality. As for centralized electronic scheduling, it looks like a different beast all together. Guess I'll wait for that other shoe to drop. They don't define underproducing and an SSA "management official" can schedule your cases. Lots of wiggle room for the agency. Interesting that they were originally going to include 500 as a minimal level of productivity when 500 is allegedly not a quota but a goal. while that's true, the preface also states that agency scheduling "should be an exceptionally rare occurrence" and also acknowledges that an ALJ who is being subjected to agency scheduling still has the right to postpone any scheduled hearings. |
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Post by aljsouth on Jul 7, 2010 19:08:11 GMT -5
The revised final regs have now been published by the agency- Read it, it looks like this is a disciplinary tool against serious underproducers. So long as they limit its use to judges who are putting out far fewer than 500 cases without justification (extended leave, sickness, etc), it won't bother me one bit. Of course, like everything else in .gov, I'll keep a close eye on it to see how it shakes out in reality. As for centralized electronic scheduling, it looks like a different beast all together. Guess I'll wait for that other shoe to drop. I don't think centralized scheduling is another beast. It is the flip side of same coin. Why spend so much money and effort on centralized scheduling unless you intend to use it. It isn't a tool for the "underproducers" but for everyone. The agency repeated its misleading fact (lie that is technically true) about a judge in New England that did not schedule a case for years. The agency somehow forgot to mention that the judge, with the consent of the HOCALJ and the Regional Chief, was asked to spend his all his time bargaining with the agency as a union rep. This freed up other judges to hear more cases. It may have been a poor idea, but it was made with the full consent of the agency. The agency plans to use its centralized scheduling and will use this rule, sold as dealing with judges who won't schedule cases, as the mechanism to go to central scheduling. |
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Post by Orly on Jul 7, 2010 19:18:54 GMT -5
The agency plans to use its centralized scheduling and will use this rule, sold as dealing with judges who won't schedule cases, as the mechanism to go to central scheduling. I expect this rule to be used sparingly because the amount of time and resource it will take to go through MSPB and discipline a judge. The bottom line is the agency mainly cares about increasing production, and I doubt they will be dumb enough to mess with productive judges when they already have enough low producers in the pipeline. As for centralized scheduling, I merely see it as an evolution of the e-biz path we're already on. If there is a functional automated system where I can specify the parameters of my availability every week and it can spit out my 15 hearings on the other end while freeing up a SCT for pulling, I'm all for it. However, this is predicated on a functional system. Whether we end up with a working product or a huge flop is anyone's guess. Oh well, interesting times.  |
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Post by deltajudge on Jul 8, 2010 9:09:09 GMT -5
8-)This is what you get when you have non-professional people trying to manage something which they know nothing about. Most or all attorneys practicing before ALJs in a hearing office practice in other forums, most of which are superior to SSA hearings. Plus you have to schedule around the reps who practice in the hearing office which is difficult in itself. In our office, we had a rep who had so many cases before us, we had to schedule him weeks in advance. All this is going to result in, is a slew of cancellations and postponements, and will harm the ALJs who schedule promptly. It will be a major snafu.
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Post by mcb on Jul 8, 2010 15:06:47 GMT -5
Received this email from NOSSCR today:
NOSSCR
July 8, 2010
TO: NOSSCR Sustaining Members
FROM: Nancy G. Shor, Executive Director
RE: Final Rule Allows SSA to Schedule Hearings
SSA issued a final rule today that creates a 3-year pilot program allowing SSA, rather than the ALJ, to set the time and place for the hearing. 75 Fed. Reg. 39154 (July 8, 2010).
Under current rules, ALJs set the time and place for hearings. This final rule makes only one limited, but significant, change in the regulations: "We anticipate using this pilot authority primarily in a very small number of situations where an ALJ is scheduling so few hearings that he or she is compromising our efforts to make timely and accurate decisions for people applying for benefits." According to SSA, "[o]ne impetus for proposing these rules was a New England judge who scheduled no hearings for many years." SSA will consult with the Hearing Office Chief ALJ and the ALJ in question before exercising the authority under the pilot to determine if there are reasons why SSA should not schedule the hearing.
NOSSCR submitted comments opposing the proposed rule, which was published in November 2008. NOSSCR's comments raised concerns about ALJ decisional independence, as did many other commenters. SSA responded that these final rules do not infringe on ALJs' decisional independence, which "does not prevent appropriate management oversight of our administrative review process."
NOSSCR also raised concerns about centralized scheduling and the impact on claimants and their representatives. These final rules do not deal with that initiative. In the responses to comments, SSA states:
These commenters misinterpreted our proposed rules. We are not instituting nationwide centralized scheduling. We recognize the importance of coordinating the schedules of the hearing participants, including the ALJ. As mentioned above, our electronic scheduling initiative anticipates integrating the schedules of ALJs, experts, claimants, claimants' representatives, and hearing recorders, and the availability of hearing rooms to more efficiently set hearing times and dates.
A more detailed analysis of these final rules will appear in the July issue of the NOSSCR Social Security Forum.
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Post by Propmaster on Jul 8, 2010 18:33:11 GMT -5
My guru of such things believes central scheduling will be very sparingly used (at least at first) for worst offenders who she claims tend to blame local scheduling problems as being part of their poor productivity. The problem is that the only people who suffer from trying to make low producers high producers by scheduling them a bunch of cases are the claimants! In my office, we have a low producer - I'll call him ALJ X (X for short). X does 6 hearings a month (I'm exaggerating ... he never does that many) --pause for laughter-- But let's assume X does 6 hearings per month. Despite this, his average processing time is, say, 400 days. This results in 72 dispositions per year (let's ignore dismissals). To "fix" him, the management will schedule 12 hearings per month (let's presume they try to take it slow, although I think it is more likely they would set a more arbitrarily high number). X goes along with the scenario and doesn't even postpone the cases. X then continues to review and decide 6 cases per month. Every extra 6 cases that are forcibly assigned to him adds 30 days to his processing time, because it will take him a month to get rid of those cases and the ones after them. So his processing time will go from 400 days at the beginning of the onset of forced scheduling to 760 days for the cases heard in the 12th month of forced scheduling. Now, since he has heard the cases and has them in, say post-hearing review, they cannot be given to another ALJ. Therefore, management stops scheduling him (or assigning him) ANY cases until he works down his backlog. Another solid year of work will get his backlog back to where he can do it in an average of 400 days. He doesn't care that much, he hasn't changed his work habits. Meanwhile, management has wasted time messing with the work flow unproductively. Worse, the claimants assigned to this ALJ have had their wait times almost doubled compared to others who file hearing requests at the same time. This equals embarassment for the agency. Whereupon, they will seek another way to move this ALJ's cases - a way even more likely to run afoul of arguments of judicial independence. I am NOT advocating letting this ALJ continue to work at the glacial pace of 6 hearings per month. I am merely opining that forcing more hearings on a judge does not in any way force increased work. If the ALJ cared about the age of his workload or the claimants in the cases, he would not be a low producer - he would be working at capacity. (This does not apply to ALJs who should have retired and are working at capacity but are flummoxed by everything and can't be kicked out - they might care but be unable to do the job (and they should voluntarily leave)). I simply espouse rehabilitating the low producer in a way that does not threaten the lives of claimants by delaying their decisions an extra year or more. |
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Post by workdrone on Jul 8, 2010 19:53:57 GMT -5
I simply espouse rehabilitating the low producer in a way that does not threaten the lives of claimants by delaying their decisions an extra year or more. PM. If you think rehabilitation is the goal you're woefully mistaken. The ALJs they are likely to use the new regulation on are probably the ones they want to get rid of one way or another. Let's use the example you gave. If management is playing the way I suspect, scheduling will not slow down for said ALJ even when his backlog climb to monsterous levels. Instead, it will just get bigger and provoke anger from the claimants, their reps, and local Congressmen. Said ALJ will be counseled by his HOCALJ and RCALJ repeatedly for failing to adhere to agency benchmarks and asked to provide justifications on why cases are getting delayed. Multiple directives will also be issued, and the ALJ will either improve or violate the directives. At some point, either the ALJ gets better and is no longer a problem, or the agency will have enough paper to take him to the MSPB for failure to follow directives. Along the way, things might get so miserable for said ALJ that he may decide it's not worth it anymore and just retire or try to transfer to another agency if possible. A SSA ALJ in Texas was removed this past April at the MSPB initial level by an ALJ decision. One of the main causes of removal was the failure to follow multiple directives to move and decide cases over a 14 month period. Assuming this case survives the full MSPB board and the Federal Circuit, it will provide a road map for the agency to target unproductive ALJs who are unwilling to improve. However, as this process is very labor intensive and the hurdles are high, I doubt the agency is likely to focus on anyone other than the most egregious offenders due to resource limits. So assuming the agency has the will to carry through with it, I see more early retirements ahead, and possibly a few removal actions at least. |
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Post by deltajudge on Jul 8, 2010 20:25:42 GMT -5
8-)What never ceases to amaze me, is how these so-called low producers and no schedulers get by with it. You are employed to do a job, so how is it justified for you to sit around and not schedule and hear cases? I was with OHA for 30 years, was a high producer, and scheduled my cases as soon as possible. That was my job. Somethings wrong with this agency.
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Post by bartleby on Jul 9, 2010 7:24:38 GMT -5
My gut feeling is that this will be applied to all ALJ's and not just the low producers... One of the biggest reasons is the clerical union, AFGE. As soon as Central Scheduling begins scheduling ALJ X and ALJ X's clerk no longer has to schedule his/her cases, every clerk in the office will file a grievance about having to do more work than ALJ X's clerk and all heck will break loose. We are driven by the lowest common denominator, like it or not. Also, rumor has it that a Regional Chief ALJ said that he was going to use it to restrain a very high producer.. Remember folks, this is Bizzarro World..
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slick
Member
"Be yourself. Everyone else is already taken." Oscar Wilde
Posts: 29 
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Post by slick on Jul 11, 2010 10:18:04 GMT -5
Frankly, I'm doubtful that a central scheduling unit will be able to deal with the complications that arise with the number of parties needed at a hearing. (separate from the claimant and rep) In addition to a hearing monitor (which at times proves problematic), we need a VE (although I know that some offices don't use them at all...curious) and sometimes we need an ME. I know how much juggling our scheduling unit has to do trying to coordinate with all those people.
I'm in a large metro area with several hearing offices that compete for all of the aforementioned people and I shudder to think what will happen if central scheduling tries to manage this.
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woody
Full Member
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Post by woody on Jul 11, 2010 20:28:44 GMT -5
workdrone is exactly correct; this is a mechanism for removal and nothing else. I work my butt off for 40 hours a week and generally meet close to expectations, but only since I was given the administrative support that enabled me to. I do not condone non-workers. But, my personal experience (limited) is that the low producers have just been folks who cannot make a decision. And the Angency hired them, not me. And they represent <1% of the corps. So who cares? And why do all the interventions impact the rest of us who are doing the job?
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Post by Orly on Jul 12, 2010 6:30:40 GMT -5
for the corp to survive, some sacrifice must be made, i.e., cutting ties with extremely (single digit/mo) low producers. remember, dead-weight might bring down the whole fleet if there are enough of them. Culling the herd huh? I can't resist...  Caption modified as a parody and posted under fair use doctrine. Original copyright holder retains all right to this image. |
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Post by valkyrie on Jul 12, 2010 18:05:10 GMT -5
Let me just stick my neck out an make the stupid suggestion:
Why doesn't the agency just set a minimum scheduling requirement for all ALJs of say 40 per month? If they can require us to work forty hours per week, why can't they just require us to schedule 40 cases per month?
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