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Post by prescient on Jan 6, 2015 12:49:04 GMT -5
Ahh, more "writing" factories .... yes, I'm familiar with the kind of product they produce. I have a radical idea and I would be interested in getting feedback on it from the members of this forum. I used to practice a lot of divorce law. As most of you know, divorce attorneys are required to write the final decrees regarding property distribution, custody arrangements, child support, etc. Whether it's a non contested or contested matter, the final decrees must be approved by the court compliance officer (at least, that's how it worked in the Ohio courts), and are ultimately signed by the judge. I think that there should be a pilot program whereby certain ODARs permit the claimant's attorneys to draft FAVORABLE ONLY decisions, submit them to an ODAR compliance officer for review, and then the ALJ can sign off on the final product. Now, I've read some very critical things about claimants reps in this forum. Many of the criticisms appear to be well-founded and it frankly makes me a bit embarrassed to be on this side of the fence as a current day claimant's rep. (It also explains why, whenever I visit a new ODAR, I am often treated with great skepticism by the ALJ until I basically prove my worth as a competent claimant's rep, which is fine. Moreover, it doesn't help that I'm a fake blonde and I frequently eschew traditional black and navy blue suits- but I digress.) Point being, I understand full well that many claimant's reps (attorney and non attorney alike) would draft crummy decisions. To solve this inevitable problem, I propose the following (to be modified by higher ups as the pilot program progresses): Claimants attorneys should be able to get special certification that enables them to write fully favorable decisions and submit them to ERE once the ALJ determines a grant. The certification would be similar to the present day certification process that designates a claimant's attorney as a Social Security Specialist. The certification would involve CLE decision writer training and a test on the most basic regs, Listings, etc. This proposal may just accomplish two things: #1, it will raise the bar, so to speak, with respect to the standard of practice employed by many claimant's reps. Individuals like myself will feel like they are taken more seriously by the ALJs in the courtroom and not lumped into a demeaning category that is not always warranted. #2, maybe, just maybe, this will save the system some money. I suspect that the unions will not like this idea one bit, but it may just expedite the processing of written decisions. Finally, there will have to be something in it for the reps who choose to pursue such certification and add the task of writing FF decisions to their workload. I think I'm correct in saying that practicing Social Security lawyers want to make more money (and no, we're hardly rolling in it these days, as indicated by the Binder bankruptcy). So raise the fee from $6000.00 minus processing to $6,500.00 minus processing fees for practicing attorneys who write the FF decisions. Thoughts??? Never going to happen.
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Post by Deleted on Jan 6, 2015 12:58:54 GMT -5
Prescient- why won't it ever happen?
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Post by prescient on Jan 6, 2015 13:16:36 GMT -5
Prescient- why won't it ever happen? "I went to court today, and the judge let me write my own decision!" That would be the headline on 60 minutes. The appearance is that the ALJ and rep are in cahoots to frivilously spend tax payer money. There would also be an enormous incentive for the rep to draft the decision in a way that would essentially guarantee that the claimant could never show medical improvement if the case were ever reviewed.
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Post by Deleted on Jan 6, 2015 13:30:42 GMT -5
I have a radical idea and I would be interested in getting feedback on it from the members of this forum. I used to practice a lot of divorce law. As most of you know, divorce attorneys are required to write the final decrees regarding property distribution, custody arrangements, child support, etc. Whether it's a non contested or contested matter, the final decrees must be approved by the court compliance officer (at least, that's how it worked in the Ohio courts), and are ultimately signed by the judge. I think that there should be a pilot program whereby certain ODARs permit the claimant's attorneys to draft FAVORABLE ONLY decisions, submit them to an ODAR compliance officer for review, and then the ALJ can sign off on the final product. Now, I've read some very critical things about claimants reps in this forum. Many of the criticisms appear to be well-founded and it frankly makes me a bit embarrassed to be on this side of the fence as a current day claimant's rep. (It also explains why, whenever I visit a new ODAR, I am often treated with great skepticism by the ALJ until I basically prove my worth as a competent claimant's rep, which is fine. Moreover, it doesn't help that I'm a fake blonde and I frequently eschew traditional black and navy blue suits- but I digress.) Point being, I understand full well that many claimant's reps (attorney and non attorney alike) would draft crummy decisions. To solve this inevitable problem, I propose the following (to be modified by higher ups as the pilot program progresses): Claimants attorneys should be able to get special certification that enables them to write fully favorable decisions and submit them to ERE once the ALJ determines a grant. The certification would be similar to the present day certification process that designates a claimant's attorney as a Social Security Specialist. The certification would involve CLE decision writer training and a test on the most basic regs, Listings, etc. This proposal may just accomplish two things: #1, it will raise the bar, so to speak, with respect to the standard of practice employed by many claimant's reps. Individuals like myself will feel like they are taken more seriously by the ALJs in the courtroom and not lumped into a demeaning category that is not always warranted. #2, maybe, just maybe, this will save the system some money. I suspect that the unions will not like this idea one bit, but it may just expedite the processing of written decisions. Finally, there will have to be something in it for the reps who choose to pursue such certification and add the task of writing FF decisions to their workload. I think I'm correct in saying that practicing Social Security lawyers want to make more money (and no, we're hardly rolling in it these days, as indicated by the Binder bankruptcy). So raise the fee from $6000.00 minus processing to $6,500.00 minus processing fees for practicing attorneys who write the FF decisions. Thoughts???
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Post by Deleted on Jan 6, 2015 13:34:47 GMT -5
In another thread Prescient wrote: "I went to court today, and the judge let me write my own decision!"
That would be the headline on 60 minutes.
The appearance is that the ALJ and rep are in cahoots to frivilously spend tax payer money. There would also be an enormous incentive for the rep to draft the decision in a way that would essentially guarantee that the claimant could never show medical improvement if the case were ever reviewed. My response: And yet it's done in divorce law on a day to day basis with no complaints. Moreover, 60 minutes would have to address the ultimate savings to the program (if indeed the pilot program demonstrates the numbers.) As for the rep drafting a bias decision: medical improvement is determined under CDRs based on future records (or lack thereof). The attorney is not capable of playing this god-like role, no matter how extreme the spin in the decision itself. The attorney will also have to include if the ALJ advises 18-36 month review at the end of the written decision. Under my plan, the ALJ would email me his or her instructions and I would stay as close to them as possible, per my former ODAR decision writer experience. I would take the ALJ's instructions and tweak the pre-hearing memorandum that I have on file- which already cites exhibits and addresses issues involving evidentiary weight. Voila- 30 minutes later, we have a FF decision in the ODAR compliance officer's drop box. Keep in mind, that individual will be an attorney as well. The ALJ has final review, remember, and can delete any spin that is over the top and advise me not to do it in the future.
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Post by prescient on Jan 6, 2015 13:47:54 GMT -5
Voila- 30 minutes later, we have a FF decision in the ODAR compliance officer's drop box. an extra $500 for 30 mins of work? I don't see how that's saving the tax payers any $$, given that the average DW only makes $40/hr.
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Post by saaao on Jan 6, 2015 13:52:55 GMT -5
When I was in private practice in State Court it was pretty much standard practice for the winning party to draft the order in all civil cases, but that will never fly in ODAR primarily due to the political climate post Huntington and the technical effects of the decision.
In private practice, no attorney I knew of no matter how shady would have dreamed of pulling a fast one in that situation, but there was an adverse party to keep them honest and the substantive findings of the order had already been committed to the record by Jury or Bench verdict, so there wasn't really a lot of potential to pull a fast one in the first place. Really it was more of a case of "winner buys" than anything else. However my client's were always shocked by this practice and I am sure the general public also would have been if they had been aware of it. I always had to explain that it was just a way for the Judge to reduce the work load on his staff by shifting the writing burden to the winning party's attorney.
For ODAR there are CDR's to consider as well as the problems of rep's deciding who is to get weight, which impairments are really the basis for the RFC, etc. etc. For an ALJ to provide specific enough instructions to a rep for a decision to survive scrutiny that such a practice would certainly draw, the ALJ might as well just draft the decision. There is a lot of potential for a rep to play games in a disability decision, and no one but an overburdened ALJ to call them out if they slip in language to sweeten the pot. Pile on top of that a narrative that rouge ALJ's have a too cozy relationship with shady reps, and the idea is dead in the water, particularly if you propose paying the rep's more money to do the drafting.
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Post by maquereau on Jan 6, 2015 14:02:44 GMT -5
Yes, the idea COULD work, but I think it would be an uphill battle at the present. I'm pretty sure a lot of the claimant reps (not all, Lord no) could write perfectly acceptable decisions. That would free up decision writers so that they could simply focus on writing crummy denials (ok, sorry, that was gratuitous).
If I were representing claimants, I think I just might come to the hearing with a decision already prepared on disc to give to the judge. I wonder if I might not get more FF decisions that way? I know there's probably too much of a demand on the rep's time to always do this. But if there were time ...
I could also see reps hiring associates on a contingency basis. You write me a winning decision and brief for the judge, and I'll give you 1/3 of the fee.
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Post by Deleted on Jan 6, 2015 14:03:27 GMT -5
Voila- 30 minutes later, we have a FF decision in the ODAR compliance officer's drop box. an extra $500 for 30 mins of work? I don't see how that's saving the tax payers any $$, given that the average DW only makes $40/hr. The work has already taken place in the hours that I spent reviewing the file and writing a pre-hearing memorandum. Thus, the 30 minute tweaking period that I referenced is deceptive. In fact, my FF decision took anywhere from 4-12 hours total (including a page by page review on ERE) prior to drafting the memo pre-hearing. It also addresses contrary evidence in a detailed manner. It sometimes strikes me as unfair that I get the same attorney fee that a rep gets who did very little work up, said little at the hearing, and never submitted a pre-hearing memorandum. Again, my proposal raises the bar for claimants reps, and rewards the ones who do a thorough job. As the pre-hearing memorandum has already been written in such FF cases, why reinvent the wheel by paying a decision writer to basically duplicate work that has already been done by the claimant's rep?
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Post by moopigsdad on Jan 6, 2015 14:08:11 GMT -5
Hannah there is nothing preventing you from writing a pre-hearing brief now and it is usually appreciated by the ALJs. However, to suggest you, as representative, be assigned to write the FF or PF decisions on cases is not going to fly well in this political climate. I have had ALJs tell their writers to use my pre-hearing brief as a template for their written decision, but it is still not the written decision. What do you want to do, put all of the AAs and SAAs out of work? Everyone has a job to do and the representative's job is to advocate for the claimant and probably writing a pre-hearing brief to convince the ALJ, not writing the FF or PF decision for SSA.
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Post by hopefalj on Jan 6, 2015 14:17:07 GMT -5
Voila- 30 minutes later, we have a FF decision in the ODAR compliance officer's drop box. an extra $500 for 30 mins of work? I don't see how that's saving the tax payers any $$, given that the average DW only makes $40/hr. I would be happy to go on a purely production-based system where I'm only assigned FREVs. I'll even do it for $250 per decision. I'll make six figures a year, work less than 8 hours a day, and have 12 weeks of vacation per year. Sign me up! I do agree with hannah that it's unfair that some reps get any sort of fee based on their "representation." There is a huge variance in the quality and knowledge of attorney reps, just like with every other position involved in this process.
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Post by Deleted on Jan 6, 2015 14:25:58 GMT -5
Hannah there is nothing preventing you from writing a pre-hearing brief now and it is usually appreciated by the ALJs. However, to suggest you, as representative, be assigned to write the FF or PF decisions on cases is not going to fly well in this political climate. I have had ALJs tell their writers to use my pre-hearing brief as a template for their written decision, but it is still not the written decision. What do you want to do, put all of the AAs and SAAs out of work? Everyone has a job to do and the representative's job is to advocate for the claimant and probably writing a pre-hearing brief to convince the ALJ, not writing the FF or PF decision for SSA. Would it have to result in lost jobs? Keep the current AAs and SAAs and permit them to focus on PF and UF decisions, and CDRs. Seems there's more than enough work to go around, and it would expedite the processing of written decisions post hearing. Claimants wouldn't have to wait for months to receive a PF or UF from ODAR. It would come in a matter of weeks.
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Post by gary on Jan 6, 2015 14:51:54 GMT -5
The title of this thread is an example of language inflation. It calls a suggestion that Claimants' Reps write draft decisions for ALJ approval a "radical proposal." In the eighteenth century Jonathan Swift's suggestion that children be eaten, which included recipes, was called "a modest proposal."
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Post by hopingforalj on Jan 6, 2015 14:58:40 GMT -5
:DI write briefs for every hearing and actually enjoy my work, I dont think writing a FF would be such a crazy thing, but I do enjoy what i do,
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Post by anotherfed on Jan 6, 2015 15:09:17 GMT -5
I think for hannah22's proposal to work, there would have to be a standard template for the proposed decisions, where only the specifics (name of claimant, disability(ies), relief granted) were left to the discretion of the claimants' rep, and a proposed decision would be required for ALL filings. Then, it would be up to the ALJ's discretion whether to use the proposed decision.
I don't see why there would be an additional fee awarded to the rep. Other courts permit parties to include proposed decisions as part of their filings in the ordinary course of business.
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Post by whyohwhy on Jan 6, 2015 15:29:35 GMT -5
this "radical proposal" was done in many ODAR offices in the early 2000's. The original FIT template was freely available on the representative section of SSA's public website and reps were encouraged to write proposed favorables. It was one of the first initiatives to attempt to reduce the backlog. The idea was abandoned for many of the reasons already indicated in the thread as giving off the wrong appearance.
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Post by moopigsdad on Jan 6, 2015 15:34:53 GMT -5
Hannah there is nothing preventing you from writing a pre-hearing brief now and it is usually appreciated by the ALJs. However, to suggest you, as representative, be assigned to write the FF or PF decisions on cases is not going to fly well in this political climate. I have had ALJs tell their writers to use my pre-hearing brief as a template for their written decision, but it is still not the written decision. What do you want to do, put all of the AAs and SAAs out of work? Everyone has a job to do and the representative's job is to advocate for the claimant and probably writing a pre-hearing brief to convince the ALJ, not writing the FF or PF decision for SSA. Would it have to result in lost jobs? Keep the current AAs and SAAs and permit them to focus on PF and UF decisions, and CDRs. Seems there's more than enough work to go around, and it would expedite the processing of written decisions post hearing. Claimants wouldn't have to wait for months to receive a PF or UF from ODAR. It would come in a matter of weeks. You must remember that the Federal Government works slowly. It is not meant to work fast as a bureaucracy. You would overload the effectuation units of SSA that ensure payments are made as they would be unable to keep up with the quicker turnaround. Also, the Treasury would find it difficult to meet the demands of paying everyone much quicker than presently for retroactive and continuing payments. You forget we are dealing with an entrenched system that doesn't like change. While it is a good idea, it is not going to happen. The same reason why Congress cannot come to terms with a budget every year without a lot of arm twisting. You are looking at it from a common sense perspective and when dealing with bureaucracy nothing works using common sense. Things work at a snail's pace and without change. It's about entrenchment of the system. I don't think you are wrong in your suggestion, I am just saying it will not occur.
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Post by JudgeRatty on Jan 6, 2015 15:47:00 GMT -5
this "radical proposal" was done in many ODAR offices in the early 2000's. The original FIT template was freely available on the representative section of SSA's public website and reps were encouraged to write proposed favorables. It was one of the first initiatives to attempt to reduce the backlog. The idea was abandoned for many of the reasons already indicated in the thread as giving off the wrong appearance. I used this a few times when I was a rep but there was only one ALJ in our office who would use the draft. At the time, we printed out the draft and brought it in for the ALJ to sign if so desired. Of course, paper cases were the norm then. It was very rare. After all the WV and other recent issues and the political climate as mentioned, not such a good idea now. Then bench decisions were in vogue, but those seem to be less and less frequent.
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Post by Propmaster on Jan 6, 2015 16:27:45 GMT -5
Wow, I cannot believe no one has mentioned this. This was not only done in the 2000s, it was very common for years before that. There is a status for cases in the case management system used by ODAR called "DANT" which stands for "Decision ANd Typing" by the representative. When I started representing claimants we called these DANTs (naturally enough) and we did hundreds of them for a variety of ALJs in the 90s. And at that time, there were no templates (although we made our own) and we had to deliver them on paper for the ALJ to read and disc for the clerks to adapt into the decision.
Some judges would use them to help get an urgent decision out quicker (there was a 90-day writing backlog around then), some would use it for complicated cases they worried their staff couldn't handle (like a munchausen case), some used it as a 'punishment' for reps who hadn't done enough yet on a case. FIT for Reps was a thing you could download on the SSA website - it was a real thing that lots of ALJs in lots of ODARs did for a long time. It absolutely helped productivity. Reps got no extra money for doing it, but you were glad to 1) know the outcome, 2) make sure the decision would stand up on own motion review, and 3) make the ALJ/ODAR happy.
I think it stopped when they made FIT with dynamic tabbing and they could not translate the format over to the rep version. For a while they had a proposed decision checklist following FIT format by which reps could suggest what the ALJ should fill out when doing instructions (or writing the draft), but I think that was not as useful and went away.
So, basically, it is a good idea, but it is not practical anymore because ODAR is very invested in the ability to make decisions uniform.
EDIT: I looked it up, and the DANT status code has been reassigned for another use, but that's what it used to mean.
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Post by Propmaster on Jan 6, 2015 16:32:51 GMT -5
Yes, the idea COULD work, but I think it would be an uphill battle at the present. I'm pretty sure a lot of the claimant reps (not all, Lord no) could write perfectly acceptable decisions. That would free up decision writers so that they could simply focus on writing crummy denials (ok, sorry, that was gratuitous). If I were representing claimants, I think I just might come to the hearing with a decision already prepared on disc to give to the judge. I wonder if I might not get more FF decisions that way? I know there's probably too much of a demand on the rep's time to always do this. But if there were time ... I could also see reps hiring associates on a contingency basis. You write me a winning decision and brief for the judge, and I'll give you 1/3 of the fee. Both of these things you imagine were and are true. With certain ALJs with a penchant for fully favorables and an affinity to DANTs, we would bring drafts on disc just in case - it's no different than preparing an outline of the case for the hearing anyway. And there are brief-writers who will draft briefs for SSA cases. Mostly Appeals Council appeals, but some will do ALJ briefs (less likely contingent), and some contingent drafters will still charge an hourly fee than can be less than 1/3 of the total fee.
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