House Oversight Committee's 11/19/13 Hearing on Disability

[workdrone]

Testimonies and hearing video:

oversight.house.gov/hearing/continuing-oversight-social-security-administrations-mismanagement-federal-disability-programs/

Thoughts?

[ssaer]

The title of the hearing says it all: "Continuing Oversight of the Social Security Administration’s Mismanagement of Federal Disability Programs." This reflects the level of impartiality, fairness, and nonpartisanship for which committees in today's House of Representatives have become so well known.  Those looking to discover any sort of objective truths are advised to look elsewhere. 

[pubdef]

I skipped around a little in the video and found that around hour 1:20 it gets somewhat interesting. At that point they discuss that there is actually very low percentages of fraud, that the committee had focused on a select group rather than the agency as a whole, and they would provide a more complete picture if requested. The chairman for the proceeding then says that he wants the ALJs held to more direct accountability.

Overall, I think that SSAER has it right that the title says it all -- it is what you would expect. The side calling the hearing seems to have a conclusion prior to the hearing, whereas the other side wants to show why that conclusion is faulty. In the end, I doubt either side will be persuaded by the other.

[epic0ego]

I had a less pessimistic take. For Washington, I found it to be remarkably non-partisan. I thought ODAR acquitted themselves well. Let's hope this translates to adequate funding, which of course, the Ranking Member called for at the end of the hearing. They did spend too much time on Huntington, Puerto Rico, and other sensational examples, but it was also quite substantive from both sides of the aisle. Continuing Disability Reviews and Redeterminations were emphasized by both sides. I hope this translates to more work for ALJs. ODAR and the I.G. were clearly on top of this approach.

[pubdef]

I'm probably being a little too pessimistic about the process because I don't think much usually happens with subcommittees. For instance, spending a lot of time on sensational examples seems to be more about scoring a few political points than actually making change (change doesn't actually need to come from a couple sensational things). As Sklar stated less than 1% of the payouts is fradulent. It's as close to a nonissue as possible.

Hopefully it will result in a more funding and more work for ALJs. My guess is that this won't result in any sweeping changes but could give a little more funding. The chairman seemed to want to make sure people with actual disabilites are payed in a timely manner.

If I had some extra time I would watch it all, but from what I saw I think that Deputy Commissioner Sklar did a good job with his responses and that Judge Bede was a good representative for the ALJs.

[maquereau]

The hearing was about as non-partisan as it can get. The first part of the hearing dealt with problems in the way the program is administered. Toward the end more interesting issues were raised regarding outdated D.O.T., outdated grid rules in need of revision, and why children are receiving disability checks (as opposed to, for example, simply receiving medical treatment). The issue of increasing child disability claims was raised with respect to the impairments of ADHD and speech/language delays. RCALJ Bede indicated he had seen increasing numbers of ADHD claims, though not that many speech delay claims. I tend to agree. I was just reading an article the other day about why every kid in America seems to have ADHD - why the rate is so much higher here than in Europe and other places. Anyway, these issues were raised and the witnesses all dutifully reported that they had irons in the fire and that they were working and making progress on all the problems. There was an erroneous assertion made by one witness that we had the means to remove people from the rolls or disapprove them for reasons of medical noncompliance. That got a big laugh from me. We could do a poll and see how many line judges have issued noncompliance denials, what percentage of denials is from noncompliance, and whether the denials were upheld. The system simply is not designed to allow for that kind of decision. So, it was interesting, but the only thing that appeared to be a point of hope with respect to actual initiation was the suggestion that the National Hearing Center model (direct judge oversight of attorneys or staff) might be more widely adopted throughout the ODAR system.

[decadealj]

Incredible- it has only taken 25 years to determine the NHC model (very similar to what we had before the tinkerers screwed things up) might actually work. The sooner non-attorney folks are made irrelevant to the management process, the sooner ALJs can be held accountable by peer review.

[trekker]

First, these hearings are really more show than they are meant to truly change anything (with the rare exception of the early 1980's, 1996, and 1999-2000). I attended a number of Ways and Means hearings for two years during a DC job stint. Most of the time only a handful of representatives were present and they would come and go during the hearings. I even testified at a couple. Most of the representatives have no clue how the system works -- they are only addressing complaints they hear from their constituents or the sound bites from talk show hosts. The ADHD issue was supposedly addressed in 1996. The drug and alcohol issue was addressed in 1996 and somewhere around 99-00. I remember noncompliance being in hearing decisions in the 90's but the problem is that if you don't have access to health care, how can you comply. If your income is about $800 a month with maybe $50 of SNAP benefits, how can you afford to buy the healthy food that your doctor recommends. Not when rent is $500 a month. Yes you may have Medicaid but what if you live in a state that limits what services you can get (and there are quite a few -- Oregon has a prioritized list, TN limits the number of prescription drugs).

Second, I can't remember the last ADHD case for a child that I accepted. But to say that children should only receive medical benefits and not have access to some cash benefits assumes that the children have parents with well-paying jobs or that the medical benefits pay for all the needs of the child. Yes, that is supposed to be the job of the parents but not all of us have access to high paying jobs that give us that luxury. The child may really need to have a stay-at-home parent, tutoring, special shoes, etc. Some parents do rely on it too much but there are a lot of very caring parents who need that extra money to pay for the technology and day-to-day living supplies that most of us take for granted.

Third, The DOT is so outdated it is a joke. Whoops -- wasn't O*NET going to replace it? What happened to it? The DOT was first written in 1938 and went out of date in the early 1990's. I know, it is being replaced with OIS -- maybe in 2014. This is why ODAR has to rely so heavily on Voc Experts. The last living elevator operators are at SCOTUS. This is not a perfect system and it never will be. But I believe it is a system that provides very needy people with one of the last safety nets available to many people who through no fault of their own cannot work. The fraud is not as great as we would think. Visit your local field office and spend time watching those who visit. It will be an eye opener for most. (Just don't let them know you are an attorney.) Now I will get off of my high horse.

[lurker/dibs]

Trekker, thank you for the accurate break down of the system--strengths and weaknesses. I couldn't agree more.

[epic0ego]

trekker, I hope you stay on your high horse just a little while longer. it is most enlightening for us outsiders. one of the themes at the hearing was this notion of tracking ALJ "outliers," which I assume means ALJs at the high and low range of approvals. do you think this process of identifying "outliers," is fairly conceived, and do you have ideas about how to approach the issue of identifying and/or disciplining the rare renegade who merely rubber stamps cases? if you do, it seems the congress or Mr. Sklar would like to hear from you.

[trekker]

Epic: you ask some really tough questions and I don't think there are easy answers. There are already rules and policies in place to deal with abusers and outliers on all sides of the system. Claimants have the Appeals Council and Federal Court. This just isn't a perfect system but neither is our criminal justice system. There have been attempts in the past to have a consortium that includes representatives from all stages of the process meet on a regular basis to sort out any issues that may be presenting problems. The single biggest barrier, IMHO, is the underfunding of the administrative side of SSA. Not enough claims reps, low reimbursement for medical exams (you get what you pay for), not enough ALJ's, not enough post-entitlement staff -- either to effectuate the claim or do CDR's and financial re-evals. It is easy to blame ODAR, SSA, and the claimants but I for one don't.

[hopefalj]

Nov 21, 2013 8:04:51 GMT -5 epic0ego said:

trekker, I hope you stay on your high horse just a little while longer. it is most enlightening for us outsiders. one of the themes at the hearing was this notion of tracking ALJ "outliers," which I assume means ALJs at the high and low range of approvals. do you think this process of identifying "outliers," is fairly conceived, and do you have ideas about how to approach the issue of identifying and/or disciplining the rare renegade who merely rubber stamps cases? if you do, it seems the congress or Mr. Sklar would like to hear from you.

Absent a showing of fraud or some other illegality, I'm not sure what you can do for outliers without infringing upon their judicial independence. How one ALJ views the law is going to be different than another, and you end up with a wide range of outcomes, including the outliers.

[epic0ego]

Nov 21, 2013 11:16:44 GMT -5 trekker said:

Epic: you ask some really tough questions and I don't think there are easy answers. There are already rules and policies in place to deal with abusers and outliers on all sides of the system. Claimants have the Appeals Council and Federal Court. This just isn't a perfect system but neither is our criminal justice system. There have been attempts in the past to have a consortium that includes representatives from all stages of the process meet on a regular basis to sort out any issues that may be presenting problems. The single biggest barrier, IMHO, is the underfunding of the administrative side of SSA. Not enough claims reps, low reimbursement for medical exams (you get what you pay for), not enough ALJ's, not enough post-entitlement staff -- either to effectuate the claim or do CDR's and financial re-evals. It is easy to blame ODAR, SSA, and the claimants but I for one don't.

the problem with these so-called outliers is that they provide fodder for the sensationalists who actually want to CUT funding or waste limited funds by making SSA focus on this as if there is some huge cost savings to be obtained by identifying and prosecuting outliers.  that is what I took from the hearing transcript.  Mr. Sklar finally just came out and stated that fraud accounts for less than 1% of the SSA budget, which the I.G. agreed with.  Could it be that the ALJ corps is actually doing an outstanding job and that outliers are not just rare, but exceedingly rare?  If this is shown, then the focus could be shifted back to where it belongs, hiring more ALJs and staff, and providing the funding for doing so!

[decadealj]

The problem isn't money and Congress knows it so it just leaves SSA to wallow in its self-induced misery. Until SSA closes the record so that the ALJ is reviewing the same record as the DDS, creates a meaningful relevance standard for the admission of evidence and abandons its re-opening rule nonsense, there will never be enough funding to support the inefficient hearing process it has created through its policy based rule-making malfeasance. Time and time again SSA has had the opportunity to cure "the record never closes", the shifting of the burden of proof to the agency to prove the claimant isn't disabled i.e.DA&A policy interpretation, and other meaningful changes to the process but has caved in to the disability advocate community, i.e. NOSSCR and similar groups. For those of you who ever practiced litigation, be ready to adjudicate cases that have little resemblance to the law, statutes, regulations and judicial review of the hearing process.

[steelrain]

Or it could be that there is no sufficient/effective method of ferreting out the fraud in the system and therefore the 1% is simply the worse of the worse that gets outed. Look how long the W.V. scam went on before 60 minutes broke the case...

[lurker/dibs]

In my experience, SS is only concerned about the outliers who pay too many cases. They never seem to want to follow up on those who pay virtually no cases. Of course I'm speaking as a claimants attorney. But we have an ALJ whose pay rate is only 9%. Clearly this judge isn't paying all that qualify. IMHO, as long as the ALJ is making his or her numbers, no one will say anything to an ALJ. Even if multiple complaints have been filed for bias, hostility, and egregious behavior. I understand that some if not most cases should not be paid. They simply do not meet the requirements. But there are some severely disabled people who truly need these benefits. The process should be fair for all. And, in my experience it isn't. After nearly 2000 hearings, I can determine whether someone meets the requirements of a listing or grid or regulation. Some judges could care less. They act like the benefits they pay will be coming directly out of their personal pockets. And, as broken as this process seems, if the ALJs do their jobs within the law, I believe it is a decent system designed to actually help people. I can't imagine, from my perspective, how the process can be improved. Ok that was my two cents. Sorry.

[maquereau]

Lurker, aren't you in Alabama? That's one of the higher paying states to practice, so you could do a lot worse. Which brings me to the question why some states pay a rather large percentage of cases versus other states. Why, for example, are applicants in New Mexico, Utah, Tennessee, Maine, and Hawaii so much more disabled than applicants in Louisiana, Nevada, Alaska, Delaware, Wisconsin, and Kansas? Are the pools of applicants really so dramatically different in those groups of states? Are Utah claimants really so much more disabled (like twice as much) than Delaware claimants? Perhaps these striking differences in approval rates will also be the subject of congressional scrutiny.

[mcb]

Nov 22, 2013 8:47:25 GMT -5 maquereau said:

Lurker, aren't you in Alabama? That's one of the higher paying states to practice, so you could do a lot worse. Which brings me to the question why some states pay a rather large percentage of cases versus other states. Why, for example, are applicants in New Mexico, Utah, Tennessee, Maine, and Hawaii so much more disabled than applicants in Louisiana, Nevada, Alaska, Delaware, Wisconsin, and Kansas? Are the pools of applicants really so dramatically different in those groups of states? Are Utah claimants really so much more disabled (like twice as much) than Delaware claimants? Perhaps these striking differences in approval rates will also be the subject of congressional scrutiny.

The rates vary among state DDSs for approvals also. If state A DDS approves more claims an the initial/recon level than state B approves, the ALJs in state A approval of claims percentage may be lower...



www.ssa.gov/policy/docs/ssb/v73n2/v73n2p39.html

State allowance rates depend on the economic, demographic, and health characteristics of the applicants, which vary among the states. For instance, states with older populations are anticipated to have higher disability allowance rates on average. Older applicants are more likely to qualify because of the higher prevalence of age-related disabilities and the fact that they face less stringent program standards than do younger individuals. Using state-level data over a 3-year period (1997–1999), Strand (2002) estimated that as much as half of the variation in initial allowance rates may have been attributable to state differences in economic and demographic factors. The author found a negative association between filing rates and allowance rates and a statistically significant negative impact of unemployment on allowance rates. Institutional considerations can also play a role in explaining observed heterogeneity in disability outcomes. For instance, Coe and others (2011) found that states with mandated health insurance and longer duration for Unemployment Insurance benefits were associated with lower application rates.

In a recent article, Rupp (2012) used individual-level data over the 1993–2008 period to investigate three factors affecting initial allowance rates: (1) the demographic characteristics of applicants, (2) the diagnostic mix of applicants, and (3) local labor market conditions. The modeling approach involved a binary logit process with fixed-effects for state of origin and year of determination. Explanatory variables included the state unemployment rate and indicators for sex, age group, impairment type,6 and the presence of a secondary diagnosis code in the data. The author found these three sets of variables statistically significant. All else equal, male and older adult applicants had a higher likelihood of an initial allowance. Likewise, an increase in the state unemployment rate was associated with a decline in the probability of an initial allowance, with the size of the effect changing substantially by body system. The size of the state fixed-effects suggested that a substantial portion of the variation in state initial allowance rates could be attributed to permanent differences among the states.

Keiser (2010) explored the variation in self-reported (as opposed to actual) allowance rates among DDS examiners in three undisclosed states. The study approached the subject of outcome variation in disability decision making from the perspective of the theory of bounded rationality. The surveys mailed to DDS examiners considered a number of factors, including: (1) ideological identification; (2) adherence to conflicting goals (aiding disabled individuals, while protecting US tax payers from fraud); (3) perception about applicants' honesty in representing their limitations; and (4) the expectations of examiners' immediate supervisors (a focus on allowances, denials, or both equally). The model was able to account for only 12 percent of the variation in self-reported allowance rates. One aspect of the study relevant to the objectives here relates to the evidence of a possible policy feedback mechanism. In particular, knowledge of the extent to which ALJs reverse initial denials was found to be a factor in explaining higher reported allowance rates among examiners


The disability outcomes in the sample for all 50 states are listed in Appendix Table A-2. In terms of sample size, California contributes 10.1 percent of total applicants, followed by New York, Florida, and Texas. These four states combined account for more than a quarter of all claimants. At the other end of the spectrum, Alaska comprises a mere 0.12 percent of the total observations (552), followed by Wyoming, North Dakota, and South Dakota. The graphs in Chart 1 display initial allowance rates by state, grouped according to the Census Bureau regions and divisions. The black vertical lines denote the overall initial allowance rate for a particular division, with the horizontal bars corresponding to each individual state. For geographical reasons, I place Alaska and Hawaii in the Nonmainland category, although technically, those two states are counted as part of the Pacific-West division.

...

Chart 1.
Percentage of initial allowances, by state and Census division and region
Table equivalent for Chart 1.
Percentage of initial allowances, by state and Census division and region Location Percent

South

West South Central 41.10
Arkansas 43.97
Louisiana 41.99
Oklahoma 38.93
Texas 40.82
East South Central 38.18
Alabama 39.83
Kentucky 38.12
Mississippi 39.87
Tennessee 35.93
South Atlantic 42.03
Delaware 57.66
Florida 41.39
Georgia 37.30
Maryland 47.24
North Carolina 41.89
South Carolina 41.07
Virginia 47.54
West Virginia 37.40

Northeast and Nonmainland
Middle Atlantic 50.51
New Jersey 56.11
New York 47.81
Pennsylvania 51.47
New England 55.48
Connecticut 52.51
Maine 51.69
Massachusetts 57.09
New Hampshire 62.34
Rhode Island 54.51
Vermont 53.20

Non-mainland 59.45
Alaska 51.81
Hawaii 62.46

Midwest
West North Central 52.12
Iowa 56.13
Kansas 47.74
Minnesota 54.78
Missouri 50.69
Nebraska 53.03
North Dakota 44.99
South Dakota 49.73
East North Central 45.31
Illinois 48.68
Indiana 40.49
Michigan 44.75
Ohio 42.91
Wisconsin 51.97

West
Pacific West 49.93
California 50.14
Oregon 48.28
Washington 49.94
Mountain West 48.41
Arizona 55.30
Colorado 38.46
Idaho 48.57
Montana 39.54
Nevada 58.88
New Mexico 48.73
Utah 41.61
Wyoming 38.84


SOURCE: Author's calculations based on a 10 percent random sample of the DRF.
NOTE: The black vertical lines indicate the percentage for each Census division

In terms of initial allowance rates, the four states with the lowest values are southern states: Tennessee (35.9 percent), Georgia (37.3 percent), West Virginia (37.4 percent), and Kentucky (38.1 percent). On the other hand, Hawaii leads with the highest initial allowance rate at 62.5 percent, followed by New Hampshire (62.3 percent), Nevada (58.9 percent), and Delaware (57.7 percent). Thus, the range of state variation in initial allowances (the difference between Hawaii with the highest initial allowance rate and Tennessee with the lowest rate) is roughly 25 percentage points. Chart 1 does not appear to reveal any clear-cut geographical patterns other than perhaps the contrast between the South and New England. Specifically, the three divisions with the lowest initial allowance rates are the southern ones (West South Central, East South Central, and South Atlantic). Clearly, Delaware and to a lesser extent Maryland and Virginia appear to be outliers in the South Atlantic division and more at home in the Middle Atlantic division. Overall, however, it is fair to say that southern states tend to have low initial allowance rates. New England, on the other hand, is the Census division with the highest allowance rate.

[JudgeRatty]

Nov 22, 2013 11:22:49 GMT -5 mcb said:

Nov 22, 2013 8:47:25 GMT -5 maquereau said:

Lurker, aren't you in Alabama? That's one of the higher paying states to practice, so you could do a lot worse. Which brings me to the question why some states pay a rather large percentage of cases versus other states. Why, for example, are applicants in New Mexico, Utah, Tennessee, Maine, and Hawaii so much more disabled than applicants in Louisiana, Nevada, Alaska, Delaware, Wisconsin, and Kansas? Are the pools of applicants really so dramatically different in those groups of states? Are Utah claimants really so much more disabled (like twice as much) than Delaware claimants? Perhaps these striking differences in approval rates will also be the subject of congressional scrutiny.

The rates vary among state DDSs for approvals also. If state A DDS approves more claims an the initial/recon level than state B approves, the ALJs in state A approval of claims percentage may be lower...


State allowance rates depend on the economic, demographic, and health characteristics of the applicants, which vary among the states.

My guess would be that the economy is a hugh factor. For instance, maybe there is a correlation between states with higher unemployment rates and lower pay rates since higher numbers of applicants apply based on inability to get/ find full time work and not that they are "disabled" per se?  

[redryder]

I have not read the reports, but wonder if the researchers excluded or included SSI children claims. These have a far lower approval rate than adults at the hearing level at least. If a state has a significant number of children's claims and they are denied at the DDS level too, this would adversely affect the overall approval rate. I would be more interested in a study of adult claims only to see what the variation is in the DDS approval rates.