Federal Managers Association
- FMA SUBMITS WRITTEN TESTIMONY ON SSA HEARINGS BACKLOG - APRIL 27, 2010
Testimony for the Record
Before the United States House of Representatives
Committee on Ways and Means
Subcommittee on Social Security
Subcommittee on Income Security and Family Support
April 27, 2010
Joint Hearing on Eliminating the Social Security Disability Backlog
Written Statement for the Record by
Federal Managers Association
Chairman Tanner, Chairman McDermott, Ranking Member Johnson, Ranking Member Linder, and Members of the House Ways and Means Subcommittees on Social Security and Income Security and Family Support:
On behalf of the Federal Managers Association (FMA) and the 800 managers and supervisors in the Social Security Administration’s Office of Disability Adjudication and Review (ODAR), please allow us to take a moment and thank you for this opportunity to present our views before the Subcommittees. As managers at the Social Security Administration, we are committed to carrying out the mission of our agency in the most efficient and cost effective manner while providing necessary services to millions of Americans.
Established in 1913, the Federal Managers Association is the largest and oldest association of managers and supervisors in the federal government. FMA was originally organized to represent the interests of civil service managers and supervisors in the Department of Defense and has since branched out to include nearly forty different federal departments and agencies including managers and supervisors within the Social Security Administration (SSA). We are a nonprofit, professional, membership-based organization dedicated to advocating excellence in public service and committed to ensuring an efficient and effective federal government. FMA members and their colleagues in the SSA Office of Disability Adjudication and Review are responsible for ensuring the successful administration of Social Security’s disability determination process and providing needed services to American customers.
As you are keenly aware, the Social Security Administration plays a vital role in serving over 160 million American workers and their families. Each month, SSA pays out benefits to 48 million beneficiaries, including over seven million low-income Americans who depend on the agency’s Supplemental Security Income program to stay afloat and over seven million disabled Americans who receive benefit payments through Social Security Disability Insurance. These programs amount to the agency paying out nearly $650 billion in benefits per year. In addition to handling record levels of its primary workloads, the agency issued $250 economic recovery payments to almost 53 million beneficiaries in 2009. On top of that, the agency is expecting over three million people to apply for disability benefits by the end of this year. Despite these growing responsibilities, SSA improved productivity by an average of four percent per year over the last three years.
In the Office of Disability Adjudication and Review, however, there are 695,000 pending requests for a hearing, with a typical request requiring 437 days to process. While SSA and ODAR have made great strides over the last year to reduce the backlog, these delays nonetheless tarnish SSA’s otherwise strong record of service to the American public. At the beginning of 2002, SSA faced 468,262 pending hearing requests. In seven years, that number increased to over 768,000, despite the fact that dispositions reached record levels. As managers in ODAR, we are proud to have reduced the backlog by ten percent since December 2008, when it hit an all-time high of 768,540 cases.
By way of background, when a request for a hearing is received at a local Social Security office, it is automatically propagated into SSA’s computer system by a case intake employee in ODAR who adds ODAR-specific coding such as Administrative Law Judge (ALJ) assignment, site of the hearing and the representative involved. Basic screening is then completed to ensure timeliness of filing, verify procedural issues are met and determine the need for critical or expeditious handling. An acknowledgement is prepared, and in some offices a CD is burned and bar codes are prepared to send to the claimant or representative.
If staffing allows, ALJs or attorneys will screen cases for anything that might qualify it as an “on the record” (OTR) decision. This allows for cases to be decided favorably and paid without a hearing based on the evidence in the file. Such cases are rare, however, and if an OTR is not possible, the electronic record will await preparation for ALJ review. The national average for this period of inactivity is 111 days. In the Dallas region, a file will wait only 34 days on average, but in the Chicago region, the wait averages 158 days. The number of files awaiting preparation for review by an Administrative Law Judge at the close of April 2010 totaled 312,394 cases, a decrease of 118,335 cases since February 2009. We are encouraged by this decrease and the promise it hold, but these delays will continue to exist due to the volume of work coming in and the time it takes to train new staff.
The disproportion of workloads among the regions continues to be a cause for concern and must be addressed. Significant efforts were made to address this situation within the last two years and ongoing attention and fine tuning to make the best effort to balance resources and workloads will ultimately yield the desired results. After years of disproportionate placement of staff, staffing decisions are now made based on need rather than the availability of physical space. This has had a direct impact on ODAR’s ability to drive down the backlog of cases.
Cases are generally worked in hearing request date order, but cases deemed critical or in dire need may be given preference. The “workup” of the file involves a support person who reviews and orders the evidence, identifies each exhibit, obtains the jurisdictional documents and provides a brief summary of the evidence in the file. Once the file is completed and the exhibit list is prepared, the case is referred to an ALJ for review and scheduling instructions. It is then scheduled for a hearing based on the individual ALJ instructions. Scheduling requires coordinating the schedules of the ALJ, the claimant, the representative, medical and vocational experts, a reporter and hearing room availability. The claimant and representative must be given a Notice of Hearing at least twenty days in advance of the hearing. These hearings can be done in person or by video in the local hearing office, a permanent remote site or a temporary remote site, such as a hotel or local government office.
After the case is heard, the ALJ can make a decision or order supplemental records and a consultative examination if necessary. Once the ALJ has all the evidence and testimony needed to make a decision, he/she will write instructions for the decision writer. At the end of April, there were 26,680 cases nationally in which an ALJ made a decision but were waiting for an attorney or paralegal to draft the decision. This is a decrease of 6,000 cases over the last year thanks to the hiring of a significant number of attorneys. Ironically, this is one area where SSA has capitalized on the current economic climate and hired well-qualified attorneys to write the decisions in an expedient manner.
When the written decision is completed, it is made available for the ALJ to review, edit, return for redraft if necessary and electronically sign. After it is signed, an alert is sent to the support staff to print, mail and code the case to completion. As it stands, this entire process takes 437 days, on average, to complete.
WHERE WE ARE TODAY
We at FMA appreciate the attention Congress and SSA Commissioner Michael Astrue are placing on examining the reasons for the backlog and addressing remedies to the problem. ODAR began fiscal year 2009 with 456,442 pending cases awaiting preparation for a hearing. At that time, it was likely those cases would wait at least one year before any action was initiated to prepare them for review and hearing in front of an Administrative Law Judge. We are seeing progress in this area. In February 2009, processing times across the nation ranged from a low of 346 days in the Boston region to a high of 616 days in the Chicago region. Thanks to the increase in funding from Congress and SSA’s ability to hire staff, the number of cases awaiting preparation at the close of April was 312,934. Average processing times now range from a high of 520 days in the Chicago region to a low of 348 in the Dallas region, and the national average processing time is now 437 days. It is with pride that we report this progress to you.
Within ODAR, production is measured by the number of dispositions completed per day by an Administrative Law Judge. In FY05 and FY06, this then-record-level figure was 2.2 dispositions per day per ALJ. In FY08, ALJs went even further by averaging 2.3 dispositions per day. Current performance through April is 2.36 dispositions per day, a level of performance that will allow ODAR to meet the 500 disposition per ALJ figure that was requested as a minimum by the Office of the Chief ALJ in October 2008. At the end of April 2010, SSA employed 1,271 ALJs, which would allow ODAR to dispose of 635,500 cases if each ALJ worked 500 cases. The problem with this production level is that it is only good enough to handle the incoming work, not the backlog. For the current fiscal year through April, receipts totaled 401,109, an increase of 44,536 during the same period last year.
Let’s take a closer look at the numbers. Several years ago, SSA leadership determined that a fully productive ALJ could produce a maximum of 2.5 dispositions per day, a level we are only occasionally achieving due to pressure placed on ALJs to perform. With 250 work days, an ALJ should dispose of 625 cases in any given year. We currently employ 1,271 judges, which under this scenario would mean ODAR could dispose of 794,375 cases in a year. Even if ALJs produced only 2.2 dispositions per day, ODAR could dispose of 699,050 cases a year. It is important to note that only 64 percent of ALJs are on pace to dispose of over 500 cases this year, which means we are unlikely to see this type of progress.
The inconsistency among regions and offices in this regard is alarming. In Honolulu, ALJs are averaging 3.68 dispositions per day, while in Miami, ALJs are only disposing 1.27 dispositions per day. The math is clear. Without holding ALJs to a stronger level of production and supplying them with adequate staff to prepare cases, we will never fully eliminate the backlog. The inconsistency among pending cases is also cause for concern. Average pending cases per ALJ range from a low of 440 in the Dallas region to a high of 703 in Denver. Dallas is the only region that averages less than 500 cases per ALJ. Individual offices range from a low of 114 pending cases to a high of 1,336 and three exceed 1,000 cases per ALJ. On a national level, processing times range from 348 days in Dallas to 520 in Chicago. At the end of April, 26,680 decisions have been made by the ALJs but are waiting to be drafted by a decision writer.
We at FMA believe it is imperative that both the agency and Congress recognize the reality of the ALJ production level. It is the key to the solution. By acknowledging what has been defined as acceptable and using it to compute the number of potential dispositions, we can accurately foresee where we can go in terms of working down the backlog. From there, we can compute what resources we need to achieve an appropriate pending case level. With an inconsistent yet average disposition level of 2.2 – 2.5 per day, we will not be able to reduce the backlog without more judges and staff to support them.
In FY08 and FY09, SSA hired 190 Administrative Law Judges, and in FY10 the agency plans to hire an additional 226 judges. However, judges are also retiring at an alarming rate. As we have noted many times before, ALJs alone will not solve the problem. To this end, the agency has hired over 1,000 support staff in FY09 and plans to hire 1,300 this fiscal year. We recognize that the Commissioner is trying to address the backlog by adding these judges; however, additional ALJs without the supporting clerical staff to prepare cases in a timely manner will not solve the problem.
The accepted average staff to ALJ ratio is roughly four and one half production staff per ALJ. However, this only ensures productivity necessary to handle incoming work, not the backlog. For offices with heavy backlogs, the four and one half to one standard is inadequate. Quality and composition of staff also impacts productivity. Additionally, senior management and administrative employees should not be included in these figures, as they are not the employees performing the production work on hearing requests. In the past, distribution of judges and staff was often based on physical space and not an office’s caseload. The Atlanta and Chicago offices are indicative of this problem, as they have a heavy caseload, but also a low ALJ disposition rate. We are pleased to note that this is starting to change and that the heaviest backlogged offices are now receiving more staff. Putting additional resources in these areas will help dramatically.
As mentioned, adequate clerical support is necessary to prepare cases for hearing, as well as staff to write a disposition after the ALJ has made his/her decision. Hearing offices around the country are beginning to see an increase in staff across the board, but it still falls short of what is necessary to handle the over 57,000 new cases the Office of Disability Adjudication and Review receives each month (an increase of 6,000 cases per month from this time last year). At the beginning of FY09, ODAR faced 166,838 cases that would reach 850 days by the close of FY09. We are pleased to report that by the close of this year, a negligible number of cases will be over 825 days old (currently 6,805 cases are over 850 days).
Unfortunately, training staff can take upwards of a year. As the first six months of FY09 and the first three months of FY10 were funded by a continuing resolution (CR), it is unlikely that we will see much impact from the current influx until later this year. The untimely passage of budgets is further tying our hands from producing the necessary results. While we are grateful Congress is beginning to recognize the needs of the agency, this feast or famine approach is hindering the agency’s productivity.
With the aging Baby Boom population, as well as the ongoing economic downturn, it is reasonable to assume that receipts will continue to out-pace dispositions. In fact, ODAR received almost five percent more cases than anticipated in FY09 and ended the year with 14,069 more cases than at the close of FY07. Additionally, in FY09, ODAR received 30,000 more cases than in FY08. When the economy slows, disability claims increase. As the requests for hearings continue to rise, more is demanded from ODAR staff on all levels, and we do not expect this to change anytime soon. The bottom line remains that the hearing offices lack sufficient staff to process the work on hand, but we are moving in the right direction.
The solutions to the backlog problem start with timely budgets and adequate staffing levels which will allow us to address the pending cases. As of last month, just over 695,000 requests for a hearing were pending. However, it is worth noting that the agency can reasonably process roughly 450,000 cases during a given fiscal year. As such, the actual “backlog” at this point is around 250,000 cases.
COMMISSIONER’S PLAN TO ELIMINATE THE BACKLOG OF HEARINGS
SSA has undertaken 37 initiatives to achieve each of the four aspects of Commissioner Astrue’s plan to eliminate the backlog. The Commissioner should be applauded for his commitment to delivering a level of service acceptable to the American public, and as managers and supervisors in ODAR, we are dedicated to working with the Commissioner to reach his goals. A commitment from Congress is also necessary if we are to succeed in providing a level of service deserving of the American people we serve.
The first point on the Commissioner’s plan is to accelerate the review of cases likely or certain to be approved, otherwise know as Compassionate Allowances. This concept has been introduced in a variety of iterations over the years. The idea is admirable; however, we expect that this will have little impact on ODAR’s pending cases, as many of these are issued at the initial and reconsideration levels. Improve Hearing Office Performance
The Commissioner also laid out a number of initiatives designed to Improve Hearing Office Performance, the second of his four-pronged approach. As previously noted, there are roughly 6,800 cases that are over 850 days and we are on track to eliminate this unacceptable level of service by the close of the year. Additionally, giving adjudication powers to attorney advisors has the benefit of adding to dispositions; however, it redirects the work of these very skilled attorneys from reviewing and advising ALJs on the most difficult cases and makes them unavailable for decision writing. In many instances, these employees are not replaced with others to do their original tasks and those tasks go uncompleted or are redirected to others who are already overburdened. Improving Hearing Office Performance will never be achieved without additional staff.
Increase Adjudicative Capacity
The third aspect of the Commissioner’s plan is to Increase Adjudicative Capacity through Streamlined Folder Assembly. The introduction of four National Hearing Centers (NHCs) has the potential to greatly expand the agency’s capacity to redirect the resources where the cases are. It is our understanding that installing video centers in heavily impacted parts of the country so that the claimant can go to a video center in order to have his/her case heard by the NHC or other Hearing Office via video is the goal. We believe the potential for delivery of service with this process is huge.
However, we once again caution that in order to hear these cases, we still need staff to prepare, schedule and draft decisions. Without adequate staff support, the NHCs will have no cases to hear. In FY08, the NHCs scheduled 6,534 video hearings, but were able to hear only 5,081 of those cases. In FY09, the NHCs scheduled 10,798 hearings and held 8,592, which indicates progress is being made. In order to continue making a dent in the backlog, several thousand more cases will have to be heard at the NHCs.
Along the same lines, additional video equipment has the potential to expand the number of video hearings. In fact, in some impacted areas, we understand that stand alone video sites are being built that will allow assistance to be provided from around the country. However, we must not forget that without adequate staff to prepare cases, additional electronic capacity is a moot point. Furthermore, regulations allow the claimants and their representatives to opt out of the process and our business process also allows the ALJs to opt out. The practice only works when you have parties that will use it.
Under this section of the Commissioner’s plan is an expectation in place regarding the productivity of ALJs. As mentioned earlier, a productive, trained ALJ should reasonably be able to dispose of 500 – 700 cases a year. Not surprisingly, ALJs completed 14,733 more decisions in FY08 than in FY07. Additionally, ALJs disposed of over 73,000 more cases in FY09 than in FY08. This trend will continue if ALJs are held accountable by agency leadership for their level of production.
Increasing Efficiency with Automation and Business Processes
Increasing Efficiency with Automation and Business Processes is the final aspect of the Commissioner’s plan. There are a large number of initiatives under this goal. The greatest percentage of case files are now in the electronic folder format. Increasing our electronic capabilities will allow us to balance workloads more efficiently. Although many cultural and training challenges remain, we believe this will ultimately provide for an efficient process.
The temporary service area realignments went a long way to adjusting some of the imbalances in the workloads. We believe that the electronic nature of our cases provides us with significant opportunities to expand this concept to individual work categories. Any office with excess writing or pulling capacity should have that capacity redirected to offices with significant backlogs. No office should be allowed to process their work in an average of under 300 days when there over 30 offices with processing times above 600 days. We must find an efficient way to better balance and redistribute the work.
The Electronic Records Express (ERE) initiative also has significant promise and a pilot project is currently underway. While representatives have the ability to submit records using this process, currently they do not have access to the files via a secure Web site. This requires the local office to provide CDs with the evidence which we believe results in significant duplicate submissions since they cannot confirm what evidence is on file.
Many reports are available to provide enhanced management information and management training has been improved. These initiatives are certainly supported by FMA, as management of the workload is enhanced by trained employees equipped with adequate tools; however, the critical issue once again is the lack of adequate staff to do the work. Furthermore, management is not allowed to hold employees accountable for production standards, making ongoing performance measures a challenge.
The main hindrance to the successful implementation of this initiative is that there is no requirement for ALJs to use the various processes put in place. Everything laid out in this initiative is optional. It is inefficient to mandate procedures for support staff but allow the judges to use other methods.
WHERE DO WE GO FROM HERE?
To enable SSA to meet the goals set forth in Commissioner Astrue’s plan to eliminate the hearing backlog by 2013, Congress must approve a sufficient level of funding for the agency. Between 2001 and 2007, Congress appropriated, on average, $150 million less than the President requested each year. The value of this differential is equivalent to processing an additional 177,000 initial claims and 454,000 hearings. In the ten years prior to fiscal year 2008, Congress appropriated nearly $1.3 billion less than the President requested. Without a doubt, this has had a devastating effect on the services provided to the American public, as evidenced by the situation we are in today.
Recognizing the needs of SSA, Congress appropriated $150 million above the President’s request for FY08 in an effort to bring down the backlog. Congress should be applauded for its commitment to serving the American people in this capacity. In fact, it is this increase which allowed the agency to hire the additional 190 ALJs. Imagine what we could have accomplished with adequate staff to provide support to the additional ALJs.
Unfortunately, for the first six months of FY09, we operated under a continuing resolution and as a result, ODAR had to endure hiring and overtime limitations. Continuing resolutions have become the norm rather than the exception and it is significantly hindering our ability to get the job done. With the passage of the FY09 Omnibus Appropriations bill (P.L. 111-8), these restrictions were lifted. The bill included $126.5 million above President Bush’s FY09 request, which was already six percent over the FY08 appropriation. This allowed the agency to move forward in hiring staff.
However, hiring and training staff takes time and consequently, we will not see the benefits of this funding increase until later in FY10. In order for funds to be properly spent, budgets must be implemented by October 1st every year. We simply can no longer afford to pass budgets halfway through the fiscal year, essentially tying the hands of our already beleaguered organization.
In addition to the increase in FY09 funding, the economic stimulus bill (P.L. 111-5) provided necessary and timely funds to SSA in order to improve its service delivery. It is crucial SSA allocate these funds to the areas that need them the most. Of the $1 billion provided to SSA in the stimulus, the agency hired roughly 7,500 employees with $500 million of the funds. The remaining $500 million will replace the National Computer Center to ensure the new facility is functional prior to the time the current center is no longer operational. We encourage the agency to ensure the new hires are placed where the agency needs them the most – in field offices and as clericals in hearing offices. In his first budget to Congress, President Obama requested $11.6 billion for SSA’s administrative expenses in FY10. This is an increase of $1.1 billion or ten percent over the current fiscal year. Without a doubt, these funds directly impacted the service delivery of the agency. We applaud the President for his commitment to solving the backlog problem and we thank Congress for appropriating nearly the full request.
In order to continue our ongoing efforts to reduce the backlog, Congress should at a minimum pass the President’s 2011 budget request of $12.4 billion for SSA’s Limitation on Administrative Expenses account before the start of the fiscal year. Under his budget, the agency would be able to process tens of thousands of more hearings. It is estimated that forty percent of SSA’s employees will retire by 2014. With full funding for FY11, the agency estimates it will hire 70 ALJs and maintain at least a 4.5:1 ALJ to staff ratio. Processing times will also decrease with the funds, as the agency hopes to open 25 new hearing offices and an additional National Hearing Center. The ultimate goal is to reduce the backlog by 50,000 cases next fiscal year.
In addition to having an immediate impact on the current backlog, underfunding the Social Security Administration will negatively impact every service area of the agency. SSA today has nearly twice the number of beneficiaries it had in 1972. Never has hiring sufficient staff been more crucial. Reversing this trend is a necessary step to reduce the backlog.
While the President’s budget will not allow us to eliminate the backlog immediately, it will bring us closer to the agency’s goal of eliminating the backlog by 2013. We must reiterate that if we are forced to endure another continuing resolution, service delivery will suffer.
While the President’s budget request for FY11 is a start, it is certainly not a cure all solution. Throwing money at the problem will not fully resolve it without a well-trained, dedicated staff of federal employees willing to avert a crisis in the coming years. It is imperative we bolster our current workforce with additional qualified support staff, strengthened under the leadership of Commissioner Astrue. Fully funding the President’s request will enable us to do so.
SSA continues to maximize its use of scarce resources to provide the best possible service to the American public. The challenges faced by the managers and supervisors are not short term; they are a demographic reality. The same citizens putting stress on the Social Security trust fund because they are approaching retirement are also entering their most disability-prone years. ODAR is struggling to handle the current workload and will be hard pressed to manage the anticipated increase in hearing requests without additional staff. Ultimately, this is a numbers game. Should Congress define what it considers to be an adequate level of service, we believe the agency can determine what we need to get there. None of the initiatives outlined, whether alone or combined, is the silver bullet that will eliminate the backlog. We either have to slow the cases from coming in at the front end, which would require significant changes in legislation, or we have to provide more capacity on the back end. The challenge is yours.
We are the men and women who work with disabled Americans everyday. We see people of all ages come in and out of our offices seeking the services they depend on for survival from the Social Security Administration. We are committed to serving a community of Americans in need, but we need you to provide us with the necessary resources to help them. Thank you for your time and consideration of our views.