[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
CONTINUING OVERSIGHT OF THE SOCIAL
SECURITY ADMINISTRATION'S MISMANAGEMENT OF FEDERAL DISABILITY PROGRAMS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY POLICY,
HEALTH CARE AND ENTITLEMENTS
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 19, 2013
__________
Serial No. 113-72
__________
Printed for the use of the Committee on Oversight and Government Reform
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Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
_____
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on Energy Policy, Health Care and Entitlements
JAMES LANKFORD, Oklahoma, Chairman
PATRICK T. McHENRY, North Carolina JACKIE SPEIER, California, Ranking
PAUL GOSAR, Arizona Minority Member
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
JASON CHAFFETZ, Utah Columbia
TIM WALBERG, Michigan JIM COOPER, Tennessee
PATRICK MEEHAN, Pennsylvania MATTHEW CARTWRIGHT, Pennsylvania
SCOTT DesJARLAIS, Tennessee TAMMY DUCKWORTH, Illinois
BLAKE FARENTHOLD, Texas DANNY K. DAVIS, Illinois
DOC HASTINGS, Washington TONY CARDENAS, California
ROB WOODALL, Georgia STEVEN A. HORSFORD, Nevada
THOMAS MASSIE, Kentucky MICHELLE LUJAN GRISHAM, New Mexico
C O N T E N T S
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Page
Hearing held on November 19, 2013................................ 1
WITNESSES
Mr. Patrick P. O'Carroll, Jr., Inspector General, Social Security
Administration
Oral Statement............................................... 6
Written Statement............................................ 8
Mr. Glenn E. Sklar, Deputy Commissioner, Disability Adjudication
and Review, Social Security Administration
Oral Statement............................................... 16
Written Statement............................................ 18
Mr. Jasper J. Bede, Regional Chief Administrative Law Judge,
Region III Office of Disability Adjudication and Review, Social
Security Administration, Accompanied by Marianna Lacanfora,
Acting Deputy Commissioner, Office of Retirement and Disability
Policy
Oral Statement............................................... 29
Written Statement............................................ 31
APPENDIX
The Hon. James Lankford, a Member of Congress from the State of
Oklahoma, Opening Statement.................................... 66
The Hon. Jackie Speier, a Member of Congress from the State of
California, Opening Statement.................................. 68
Chart Submitted for the Record by Mr. Sklar...................... 73
CONTINUING OVERSIGHT OF THE SOCIAL SECURITY ADMINISTRATION'S
MISMANAGEMENT OF FEDERAL DISABILITY PROGRAMS
----------
Tuesday, November 19, 2013
House of Representatives,
Subcommittee on Energy Policy, Health Care and
Entitlements,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 10:10 a.m., in
Room 2154, Rayburn House Office Building, Hon. James Lankford
[chairman of the subcommittee] presiding.
Present: Representatives Lankford, Jordan, Walberg,
Farenthold, Speier, Duckworth, Horsford and Lujan Grisham.
Staff Present: Ali Ahmad, Communications Advisor; Brian
Blase, Senior Professional Staff Member; Molly Boyl,
Parliamentarian; Lawrence J. Brady, Staff Director; Daniel
Bucheli, Assistant Clerk; Sharon Casey, Senior Assistant Clerk;
John Cuaderes, Deputy Staff Director; Adam P. Fromm, Director
of Member Services and Committee Operations; Linda Good, Chief
Clerk; Christopher Hixon, Deputy Chief Counsel, Oversight; Mark
D. Marin, Director of Oversight; Emily Martin, Professional
Staff Member; Laura L. Rush, Deputy Chief Clerk; Sharon
Meredith Utz, Professional Staff Member; Jaron Bourke, Minority
Director of Administration; Aryele Bradford, Minority Press
Secretary; Adam Koshkin, Minority Research Assistant; Suzanne
Owen, Minority Senior Policy Advisor; and Brian Quinn, Minority
Counsel.
Mr. Lankford. The committee will come to order.
I want to begin this hearing by stating the oversight
mission statement. We exist to secure two fundamental
principles: First, Americans have the right to know the money
Washington takes from them is well spent; and second, Americans
deserve an efficient, effective government that works for them.
Our duty on the Oversight and Government Reform Committee is to
protect these rights. Our solemn responsibility is to hold
government accountable to taxpayers because taxpayers have the
right to know what they get from their government.
We will work tirelessly in partnership with citizen
watchdogs to deliver the facts to the American people and bring
genuine reform to the Federal bureaucracy. This is the mission
of the Oversight and Government Reform Committee.
Social Security Administration oversees two large Federal
disability programs, Social Security Disability Insurance
Program and the Supplemental Security Income Program, both of
which have grown rapidly over the last 25 years. The growth in
these programs is a significant threat to the truly disabled,
who are often pushed to the back of the line, and who face
large benefit cuts in the future if the program is not reformed
and reformed quickly.
Rapid growth in these programs corresponds to a period of
time when the typical job became less physically intensive, and
the health of Americans nearing retirement improved. The
consensus of expert academics and researchers from across the
political spectrum attribute a large portion the growth of the
program to a slower economy and a more subjective criteria for
entry.
In June, this subcommittee held its first oversight hearing
related to the Social Security Administration's management of
these programs. At that hearing the committee heard testimony
from two former and two current administrative law judges. The
testimony revealed significant problems in the Social Security
appeals process, an avenue by which more 300,000 applicants
typically gain access to the program each year.
One overarching theme of the testimony was that the
agency's push to reduce the backlog had an unintended
consequence of judge putting too many people onto the program
who are able to get back to work. In subsequent months
committee staff received numerous briefings from agency
officials and conducted three transcribed interviews with
Social Security Administration law judges.
The committee has learned that some judges employ shortcuts
and do not consider all the evidence available prior to
reversing a previous decision. It is important to emphasize the
disability cases typically only reach ALJs after applicants
have been denied twice at the local disability determination
level. Moreover, for all practical purposes, an ALJ decision to
allow benefits is an irrevocable commitment of taxpayer funds
since payroll decisions are not appealed, and less than 1
percent of disability beneficiaries ever return to the
workforce.
The committee's most recent transcribed interview is with
regional Chief Administrative Law Judge for Region III, Jasper
Bede. Judge Bede testified that if a judge's reversal rate is
anything over 75 percent to 80 percent, or the judge disposes
of more than 700 cases a year, it raises a red flag that the
judge my be issuing poor-quality decisions. Two other judges
interviewed by the committee testified that judges who decide
over 700 cases a year are not doing a thorough job in
evaluating all the evidence.
The committee obtained Social Security adjudication data
back to 2005. Some simple statistics indicate a substantial
problem. For instance, between 2005 and 2012, more than 930,000
individuals were approved for benefits by a judge with an
approval rate in excess of 80 percent. In fact, more than a
third of the agency's judges have approved more than 80 percent
of applicants in at least 1 year. Between 2005 and 2012, nearly
500,000 individuals were approved for benefits by a judge who
disposed of more than 700 cases in a year.
During his interview Judge Bede singled out seven judges in
Region III. His disposition data was indicative of a problem
with their decisionmaking. But Judge Bede also testified that
he was powerless to do anything with these judges because the
of agency policies and management.
These problems raise three important questions: Did the
agency fail to stop red flag judges because the agency is
focused on processing as many cases as possible? Who has been
held responsible for allowing hundreds of judges to essentially
rubber-stamp people on the program for years? Will the agency
prioritize continuing disability reviews, CDRs, for individuals
who have gained access to the program because of one of these
judges?
In addition to prioritizing medical CDRs for individuals
approved by red flag judges, the agency should immediately
suspend several judges and conduct a review of the decisions
and practices.
While some reforms to correct the broken disability
determination process will need congressional action, there are
many steps the agency can unilaterally take to better protect
American tax dollars and those most in need. Unfortunately the
agency is moving very slowly to adopt needed changes and to
clarify perverse regulations.
The decision grid has not been significantly revised since
the 1970s. Although hearings are nonadversarial, the agency has
not required that claimants and their representatives submit
all evidence, favorable and unfavorable, in advance. Moreover,
it should not take the agency more than 4 months to reply to
questions for the record to this committee as it did for this
last hearing.
I hope today's hearing will provide the committee with some
clarity about the agency's plan to move forward and, quite
frankly, what we in Congress can do to help in the process.
Social Security Disability serves the most vulnerable in
our Nation, and the individuals who are sitting in front of me
have committed their life to protecting those individuals and
helping in any way we can, and we are grateful for your
service. And we are hopeful that this conversation today will
be a conversation on how we can continue to protect those most
vulnerable. But we cannot ignore glaring issues that are
driving the program into insolvency. If we do not aggressively
deal with the fraud, costly mistakes and legislative fixes
required, we will see those in greatest need put in tremendous
risk. I believe it is time to fix the system, and we intend to
work with this administration in a bipartisan way to prioritize
these solutions today.
Mr. Lankford. With that, I would like to recognize the
very-not-feeling-good ranking member from California Mrs.
Speier.
Ms. Speier. Mr. Chairman, thank you. Thank you for holding
this hearing. I thank all the witnesses for participating. And
I want to commend the chairman for not suffering from attention
deficit disorder, which is typically what happens here when you
take an issue on, you have one hearing, and you go away. You're
sticking to it, I'm proud that you are, and as a partner want
to make sure we fix this as well.
Having said that, disability insurance benefits are a
lifeline, a true lifeline, for millions of Americans who can no
longer work in any capacity because of a serious disability.
This is a benefit that American employees pay for, and we need
to remember that, through their FICA taxes. While the number of
applicants and beneficiaries have increased over the past
several years, this was an increase that was projected more
than 20 years ago as a result of my generation of baby boomers
that have become more susceptible to disabilities as they have
aged and the fact that there are an increasing number of women
in the workforce.
Every program needs vigorous oversight and strong policies
in place to prevent waste, fraud and abuse. Again, I commend
the chairman for focusing on this issue. But it is also
important to note that the Social Security Administration has
initiated significant efforts to improve management, oversight
and accountability for the disability adjudication and review
process, particularly since we last met.
For instance, the agency is reviewing the quality of ALJ
decisions to ensure their legal sufficiency, and Appeals
Council reviews ALJ's decisions and provides useful feedback to
individual ALJ's regarding the quality of their decisions and
to the agency regarding its policy guidance.
The recently created Division of Quality conducts reviews
of ALJ award decisions before the benefits go out and conducts
discretionary reviews of denial decisions. These reviews help
ensure the quality of ALJ decisions and allow the agency to do
a focused review of specific issues related to the hearing
process at a hearing office or with a specific ALJ.
In addition, SSA has initiated efforts to address concerns
raised by ALJ's and others regarding some disability
adjudication and review policies. For instance, the SSA has
noticed a proposed rulemaking that will require a claimant to
submit all evidence that relates to their disability claim in a
timely manner. This regulation will enhance the accuracy of
disability determination and address the concerns that some
claimants or their representatives are withholding evidence
that may not be favorable to their claims.
The fact is that the national allowance rates have gone
down since 2008 from 61 percent to 47 percent, its lowest rate
since the 1990s. It's important to ensure that these
determinations are done fairly and thoroughly, but it is
equally important to ensure that ongoing benefits are proper.
And let me emphasize this: Continuing disability reviews,
which are periodic reviews of disability awards to determine if
the beneficiary continues to meet the disability criteria, are
critical--and I underscore that--critical to the integrity of
the system. Unfortunately there are too few of them. These
reviews are highly effective means for reducing overpayments or
identifying fraud.
We know that this system is at a tipping point. We do not
want to see these benefits reduced for those who legitimately
should be receiving Social Security Disability. So if we
actually focus in on CDRs, we can save money and make sure that
those who deserve these benefits receive it. In fact, for every
dollar spent on CDRs yields $9 of program savings. According to
the IG, SSA could have avoided paying $556 million in 2011 if
they just performed medical CDRs in the backlog when they were
due. So it is more than troubling to hear that there is 1.3
million backlog of scheduled CDRs this year.
It borders on outrageous to learn that these benefits are
still being paid to some who have died or who have been
incarcerated. Let's be clear: This is partly Congress' fault.
Funding for the SSA has fallen dramatically in the past 2
fiscal years. It is up to Congress to provide the funding the
agency needs to fulfill its mandate to effectively monitor
program integrity and save taxpayer dollars.
I hope my chair and colleagues would agree that given the
clear cost-benefit analysis provided by the inspector general,
we should ensure that the agency has sufficient funds to
conduct all of its scheduled CDRs and continue other program
improvements that have allowed it to reduce its backlog and
increase efficiencies, while improving program integrity.
But even in the context of overall improvement, there
clearly is still abuse of the system by some bad actors. A
recent investigation conducted by the U.S. Senate Homeland
Security and Government Affairs Committee and the Senate
Permanent Subcommittee on Investigations identified evidence
related to a scheme to defraud SSA in implicating a law firm,
an ALJ in Huntington, West Virginia, and doctors. As Senator
Tom Carper, chairman of the committee, stated, ``While we don't
have any evidence that this is more than an isolated case, one
example of inappropriate action of this nature is one too
many.''
I look forward to hearing from our witnesses on how we can
work together to continue this trend of improvement.
Mr. Lankford. Thank you.
Mr. Lankford. Committee members will have 7 days to submit
open statements for the record.
Mr. Lankford. We will now recognize our panel today.
Patrick O'Carroll, Jr. is the inspector general at the Social
Security Administration. Thank you for being here.
Mr. Glenn Sklar is the Deputy Commissioner for Disability
Adjudication and Review for the Social Security Administration.
You have a return engagement for being here, so I appreciate
you being here again.
Judge Jasper Bede is the Regional Chief Administrative Law
Judge for Region III, Office of Disability Adjudication and
Review, Social Security Administration. Thank you for being
here.
Marianna LaCanfora--is that right----
Ms. LaCanfora. That's right.
Mr. Lankford. --is the Acting Deputy Commissioner for
Retirement and Disability Policy of the Social Security
Administration. Ms. LaCanfora is not testifying today as far an
opening statement, but is open to doing questions. So pursuant
to that, as far as answering questions as well, we swear in all
witnesses according to committee rules. If you would please
stand and raise your right hand.
Do you solemnly swear or affirm that the testimony you're
about to give will be the truth, the whole truth, and nothing
but the truth so help you God?
Thank you. You may be seated.
Let the record reflect the witnesses have all answered in
the affirmative.
In order to allow time for discussion, I'm going to ask you
to limit your testimony to 5 minutes. You see a little clock in
front of you. That will tick down from 5 to zero. You will a
little red light that comes on when you get to zero. We would
like to be as close as possible. We will have a little bit
leniency, but we like to have plenty of opportunity for
questions as we go through this.
With that, Mr. O'Carroll, we recognize you first for an
opening statement.
STATEMENT OF PATRICK P. O'CARROLL, JR.
Mr. O'Carroll. Good morning Chairman Lankford, Ranking
Member Speier and members of the subcommittee.
This fiscal year SSA projects that it will pay about $190
billion to 18 million disabled workers, their dependents and to
disabled SSI recipients, and receive about 3 million new
disability claims. Determining who's eligible for benefits and
who continues to be eligible is an overwhelming task. My office
has spent over 18 years conducting audits and investigations
aimed at helping SSA perform this duty as quickly, carefully
and as accurately as possible.
Looking first to those already receiving benefits, my
office has long urged SSA to conduct more continuing disability
reviews, or CDRs, and more SSI redeterminations. We
consistently encourage Congress to fund these critical reviews.
With the return on investment of 9 to 1, appropriations for
these reviews are a sound fiscal policy.
After dedicated funding ended in 2002, CDRs and SSI
redeterminations declined over 60 percent, creating a
significant backlog. While SSA has been conducting more reviews
since 2009, the backlog has nevertheless continued to grow. As
a result, SSA continues to make payments that could be avoided.
For example, according to past audit work, about $3.3
billion in SSI payments could have been avoided in just a 2-
year period, and up to $1.1 billion in disability benefits
could have been avoided in 2011 alone.
The OIG doesn't merely focus on CDRs and redetermination;
we provide sound reasons for funding and conducting them. For
example, in a recent review we found that SSA hadn't conducted
79 percent of childhood CDRs and 10 percent of age 18
redeterminations within the timeframes required by law, with
the cost over 4 years was $1.4 billion.
Payments made because of delayed reviews of current
beneficiaries are troubling because they are largely avoidable,
but payments made to people who should never have been awarded
benefits at all is equally troubling. We focus closely on the
Office of Disability Adjudication and Review and administrative
law judges in our audit work to help SSA ensure that
undeserving applicants do not receive disability benefits.
For example, we recently issued a report on risk factors at
hearing offices, and we found that while ODAR had created 19
separate ranking reports that measured hearing office
performance using individual risk factors, it did not combine
these risk factors to better identify problem areas. As a
result of that, we are conducting an audit that does just that.
We believe the new model that analyzes multiple risk factors
will help to identify outlier offices as well as hearing
offices with best practices that can be emulated.
My written statement identifies more audits planned for
fiscal year 2004 and beyond, all aimed at helping ODAR continue
to improve the timeliness and accuracy of its decisionmaking. I
would be remiss, however, if I did not point out that
disability fraud is the issue my office confronts on a daily
basis.
Individuals committing disability fraud is disturbing
enough, but doctors, lawyers and other third parties who
facilitate fraud for scores or hundreds of beneficiaries is
intolerable. A recent operation in Puerto Rico illustrates how
a handful of facilitators can put many ineligible people on the
disability rolls, and our work in the Commonwealth isn't
finished. Nor is our work elsewhere, as you might have seen in
recent news headlines and stories. While I can't discuss these
open cases, I can tell you they both remain very much active.
Moreover, in July, we launched a disability fraud pilot.
Its sole mission is to identify, investigate and prosecute
doctors, lawyers, interpreters and others who commit large-
scale fraud. Meanwhile our long-standing and highly successful
Cooperative Disability Investigations, or CDI units, continue
to try and identify fraudulent applications before benefits are
ever paid. Since the program was established in 1998, CDI
worked nationwide and has resulted in projected savings of $2.5
billion. I am happy to discuss the CDI program in more detail
today if you have any questions.
Through our audit and investigative work, our disability
fraud pilot and our CDI units, we will keep working with SSA
and the subcommittee to improve the disability programs and to
reduce fraud, waste and abuse. I thank you again for this
opportunity to testify, and I'll be happy to answer any
questions.
Mr. Lankford. Thank you.
[Prepared statement of Mr. O'Carroll follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Lankford. Mr. Sklar.
STATEMENT OF GLENN E. SKLAR
Mr. Sklar. Chairman Lankford, Ranking Member Speier,
members of the subcommittee, my name is Glenn Sklar, and I'm
the Deputy Commissioner for the Office of Disability
Adjudication and Review. In this capacity I oversee SSA's
hearings and appeals operations. It has been my honor to serve
for over 22 years in an agency where our mission affects nearly
every American.
From my start at Social Security as one of the founding
members of Social Security's Office of Inspector General to my
time working as a top executive with the quality component, to
my current role leading the hearings and appeals operation, I
have done my best to balance the demands of delivering high-
quality work in a high-volume, public service environment.
With me today is Jasper Bede, the Regional Chief
Administrative Law Judge in the Philadelphia region, as well as
Marianna LaCanfora, Acting Deputy Commissioner for the Office
of Retirement and Disability Policy.
When I came to the hearings and appeals operation in 2010,
I found an organization that was in transition. In 2007,
Congress made it abundantly clear that we were morally
responsible for getting timely answers to Americans whose lives
hung in the balance. Some claimants were waiting as long as
1,400 days for an answer.
Our hearing operation has made and continues to make
significant and substantial progress in addressing the quality,
accountability and timeliness of our hearing decisions. We have
steadily reduced the average wait time for a hearing decision
from a high of 512 days in fiscal year 2007 to just 375 days in
fiscal year 2013. This progress was made while handling a
staggering 800,000 requests for a hearing annually.
My repeated message for employees is that we're accountable
for providing quality decisions, meaning timely, policy-
compliant, legally sufficient, and factually accurate
decisions. To help our employees to meet that expectation,
we've improved our hiring processes, updated how we train,
developed tools to give judges policy feedback, established a
Division of Quality, and begun collecting and analyzing data,
mountains of data, to truly measure how we were doing.
We have capped the number of cases an ALJ may be assigned
to clearly signal that more than speed matters. Data, not
supposition, show that we have closed loopholes and improved
feedback and consistency. For denial decisions we have seen
increasing concordance between ALJ decisions and the Appeals
Council. We have increasing amounts of data to detect areas of
noncompliance on allowances. We're using that data to provide
better feedback to our decisionmakers.
Our ALJs have qualified decisional independence to enhance
public confidence in the fairness of our process, and to ensure
that ALJs reach their decisions free from pressure to reach a
particular result. ALJs must, however be consistent with the
law and agency policy. In addition, we successfully tested our
authority to manage ALJs and hold them accountable in cases
brought to the Merit Systems Protection Board.
Fortunately, most ALJs want feedback and information that
will help them accomplish the dual responsibilities of
timeliness and quality. To help our ALJs, we are taking a
number of steps such as emphasizing the need for policy
compliance, providing quarterly training on difficult topics
and annual training for a significant percentage of ALJs,
giving ALJs access to realtime data that highlight where they
might be making mistakes and encouraging them to self-correct,
in standardizing the electronic business process and developing
an electronic bench book to help judges work electronically.
We also established a Division of Quality that reviews a
statistically valid sample of favorable determinations for
accuracy and policy compliance before the money goes out the
door. We've reduced the maximum number of cases that we assign
to our ALJs each year to 840 cases per ALJ. And we started
collecting and analyzing data to determine how we can make the
hearings and appeals process better.
Making disability decisions for Social Security is a
challenging and complex task. I am proud of our ALJs to rise to
the challenge every day. Thank you for inviting me here today,
and I stand ready to answer any questions you might have.
Mr. Lankford. Thank you.
[Prepared statement of Mr. Sklar follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Lankford. Mr. Bede.
STATEMENT OF JASPER J. BEDE
Judge Bede. Chairman Lankford, Ranking Member Speier and
members of the subcommittee----
Mr. Lankford. Sorry to interrupt you. Could you pull your
microphone a little closer to you there?
Judge Bede. Is that better?
Okay. Again, Chairman Lankford, Ranking Member Speier and
members of the subcommittee, my name is Jasper J. Bede. I serve
as the Chief Administrative Law Judge for Region III, the
Philadelphia region. I have been in this position with the
Social Security Administration since April of 2006. Prior it
that I served as a hearing office Chief Administrative Law
Judge in the Wilkes Barre, Pennsylvania, hearing office from
2002 to 2006. I was appointed to the position of Administrative
Law Judge in 1999 after working in the Social Security
Administration as an appeals officer, supervisory attorney
advisor, and an attorney advisor. Prior to my service with the
Social Security Administration, I served as an officer in the
United States Army.
Region III includes Delaware, the District of Columbia,
Maryland, Pennsylvania, Virginia and West Virginia. The
population we serve in Region III is a reflection of the wider
population of the United States. We serve clients from farm
laborers and coal miners to medical researchers and software
designers. Many of the claimants who appear before our judges
have unskilled work backgrounds and less than a high school
education; however, we also see claimants who have achieved the
highest level of education and worked in the most skilled
professions.
Region III has 18 hearing offices, 150 administrative law
judges, and approximately currently 742 support staff. Our
pending caseload is now over 99,000 cases, and in fiscal year
2013, we closed 80,753 cases with an average processing time of
407 days.
Region III ranks as first in the Nation in quality
measures, with an average 87.7 percent Appeals Council agree
rate, and we also have the first- and second-ranked hearing
offices in the Nation in our Johnstown, Pennsylvania, and Seven
Fields, Pennsylvania, hearing office.
As the Chief ALJ Region III, my job is to make our offices
best serve the claimants and contribute to ODAR's mission of
providing timely and quality service to the public. I
frequently visit hearing offices in my region, and I emphasize
our goals of providing timely, policy-compliant decisions. I
set up one-on-one meetings with our new ALJs, any new ALJs in
my region, and I make myself available to all staff.
With regard to the ALJs, if I learn of an issue, I work
with the hearing office Chief Administrative Law Judge to
discuss the issues and assist the affected administrative law
judge. If informal discussions with the ALJ do not correct the
problem, I may counsel the ALJ or issue a formal reprimand. For
more serious issues I can request that the Chief ALJ initiate
proceedings with the Merit Systems Protection Board.
Thank you for the opportunity to be here today, and I would
be happy to answer any questions that you may have.
Mr. Lankford. Thank you.
[Prepared statement of Judge Bede follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Lankford. We're going to do several rounds of
questioning today. So our goal is that everyone will have about
5 minutes to be able to jump in a round of questions, and after
that's concluded, we'll open it up to a broader conversation
for all of us.
Mr. Sklar, there is no question you walked into a
situation; your leadership, we're grateful for your background,
your experience. I've spoken to several people in multiple
different regions across SSA, and they all have great respect
for you. That's a good word. So I'm grateful that you're there
and in that position, but you're in this position to be a
leader for this system, and we need a leader for the system.
You see it full well. You've already taken actions for some of
these things.
So the push that we're going to go have today is not
personal to you at all. This predates you and your leadership
by far, and there are issues that we need to deal with on this.
We have several things that are all coming down on us. One
is we've had a bottleneck of getting into the system, which is
a flood of people that have applied through both a generational
shift and I would say also an openness that it appears it's
easy to get on, and so even more people are trying to jump into
the system to test it and find out how easy it is to be able to
get on. And the second part of this is the CDR reviews, those
reviews coming in. So we've got two bottlenecks on either side
of this, and we're getting an awful lot of people into the
middle of it, and we have to be able to process this.
I want to talk a couple of these things on it. Judge Bede,
you had several high-performing, let's say, judges that are
in--that were in your district on it. Judge Bridges, who, when
we run the numbers on it--we just looked at the testimony that
you gave to us--75 to 80 percent. If they are doing a reversal
rate that high, that should raise some sort of a red flag, do
you agree with that, if you got an 80 percent reversal rate as
a judge, of reversing the two previous decisions?
Judge Bede. Well, without being specific to Judge Bridges
or any other administrative law judge, if we have reversal
rates that high currently, that would raise some questions. It
would be an indicator, but it wouldn't necessarily indicate,
establish that the decisions being made are wrong. Each case
has to be looked at individually. And it is possible to sit on
the bench and find 45 people in a row are disabled and 2 weeks
later find 25 people in a row are not disabled.
Mr. Lankford. Right.
Judge Bede. It's each individual case.
But a very high production rate with a very high reversal
rate or a very low reversal rate does raise some questions.
Mr. Lankford. Our observation, obviously, is they've
already been denied twice. We've had two folks that have gone
through their files, that have looked through, that are on the
State level trying to evaluate it. And they go through this
third process, and if they are reversing 80 percent of the time
previous, there is either a problem on the previous side, or
there's a problem on the judge's side, but that seems like a
very high percentage.
Judge Bede. Since you chose a Pennsylvania judge----
Mr. Lankford. I can----
Judge Bede. No, I want to indicate----
Mr. Lankford. Let me just say this----
Judge Bede. Because in Pennsylvania they would only be
denied once.
Mr. Lankford. Okay. That's good to know actually. But on
several of these, when I go through it, we ran just from 2005
on, a typical case, once they're approved, is about $300,000 in
lifetime benefits. And so we just tried to run through the
actual cost of this. This is not a scientific number, this is a
ballpark number.
So Judge Bridges basically since 2005 has approved about
$4.5 billion in benefits; Judge Daughtry, 2005 to 2011, I see
$2.5 billion; Judge Taylor, $2.5 billion. So we are dealing
with very serious dollars on it. Not all of those are
incorrect, I'm not trying to accuse that, but there are
significant amounts. If we looked at all judges nationwide that
did an 80 percent approval rating or higher, if we just took
maybe even the 10 or 15, almost 20 percent for some that are
above 80 percent, there's still about $100 billion that we have
questions on to say this is a very high approval rating. And so
a lot of our questions are just going to process through how is
this happening either early in the process that they're being
denied when they shouldn't be, and so it's become more
difficult for someone who is truly disabled to get into the
system, or how is it there's such a high reversal of that?
Mr. Sklar, do you want to jump in on that at all just for
perspective?
Mr. Sklar. Just to add a little bit of perspective, I would
draw your attention to my written testimony, and there is a
chart there, and I think you've seen that chart before. It may
look a little bit different in that there's even fewer outliers
on that chart than the last time I was before this committee. I
think it is a fairly dramatic retrenchment----
Mr. Lankford. But there has been a significant change in
the last couple of years, and we're grateful for that, just the
attention to be paid to it.
Mr. Sklar. I think so. If you look at the global level,
some of the practices we put in place are really starting to
have an impact. Even looking at this eye chart, you notice the
case cap coming into effect and biting down. It's about a 50
percent reduction on the number of cases that at one particular
ALJ was handling.
It's tough. It's a very large system. It has variability
bill in it; it's meant to. Judges have qualified decisional
independence drawing off a congressional statute, the
Administrative Procedures Act. So you do the best you can with
the system you have and try to put in rational ideas in light
of some of the constraints we have.
Mr. Lankford. Okay. Yield to the ranking member.
Ms. Speier. Thank you, Mr. Chairman.
Along the same lines let me ask you, Mr. O'Carroll, do
these appear to alarm you when you have those kinds of approval
rates or reversals of decisions made in the States? And if they
do, what steps should be taken to determine whether or not the
quality of the decision has been accurate?
Mr. O'Carroll. Ranking Member Speier, on those, again,
probably where we started down the road with these was in 2008
we did an audit where we took a look at the hearing offices and
the rates of the different offices on it. At that time there we
were taking pretty much a look at the bell curve of it and
where the vast majority of, you know, decisions were being
made, the numbers that were being done on it. And, again, we
were trying to give management information to ODAR that they
could use in terms of what are the outliers on it. And, again,
when you're starting to take a look at the outliers that are
doing a lot of approvals or a lot of denials, in both cases we
wanted the quality reviews for ODAR to be taking a look at them
for a couple of reasons.
Ms. Speier. I have limited time, and I've a lot of
questions to ask you. What should the quality review encompass?
Mr. O'Carroll. Well, that should be taking a look at the
encompassing on it. They can't target, that's the other issue,
because of judicial independence. You can't just say that we're
going to take a look at every one of the hearings of this judge
because they're at that level.
What they can be doing is they can be taking a look at
trends, they can be taking a look at high numbers or whatever
and giving advice back. And we've asked them do it, and they
are doing it now. There's a quality review section that we work
with at times to be--again, to find more information on the
outliers.
Ms. Speier. All right. So you approve of the quality review
that's going on right now?
Mr. O'Carroll. Yes, I do.
Ms. Speier. Anything more that should be happening in that
regard?
Mr. O'Carroll. Yes. We're telling them that there's about
19 things that they take a look at on terms of decisions, and
what we're saying to them is that they ought to narrow it down
to maybe 4 or 5 major ones on it and then be taking a look at
that as, again, to help on picking out outliers, because as it
is now, it is like a large scoreboard. We're telling them to
take a fewer number of them and take a look at those specific
things.
Ms. Speier. Would you provide that to the committee?
Mr. O'Carroll. Yes, I will.
Ms. Speier. All right. You referenced Puerto Rico. How did
that come into focus for you? Was there a whistleblower, or was
it just something you just at some point decided to review?
Mr. O'Carroll. I think Puerto Rice is a good example of,
you know, government at its finest. What happened was with
Puerto Rico--two things happened really. One was is that noted
in the DDS in Puerto Rico, the disability determination center
there started noticing that they were getting the same type of
diagnoses coming in on all the different people applying for
benefits at the time coming from this one specific doctor. They
brought it to our attention, we started taking a look at it,
and pretty much at the same time period the press was taking a
look at which offices were doing very high--which States were
coming up with very high allowances of disability, and that
resulted in some media attention that was going on at the same
time.
Ms. Speier. So let me ask you this: When there has been, as
you pointed out, billions of dollars of payments made
inappropriately, when we then go back to try and get repayment
or refund, what percentage of those individuals are in a
capacity to refund, and do we put liens on their property? What
do we do to get the money back that they had received
inappropriately?
Mr. O'Carroll. Well, there's a number of ways on it. One is
that if it's criminal, we'll make it a decision of the court to
pay it back. If it's civil, and we go in civil monetary
penalties, if the person has resources, we'll fine them, and
we'll be asking for fines on top of whatever was paid
incorrectly. SSA will then establish an overpayment on it, and
that overpayment will be paid back if they have the resources
on it, or if they don't have the resources on it, if they ever
get any benefits in the future, it will be taken away from any
future benefits on it. As you can probably tell, Congresswoman,
a lot of the resources on these people here----
Ms. Speier. Is limited, right?
Mr. O'Carroll. It is limited.
Ms. Speier. So the likelihood of getting repayment is not
very good. So I guess I'm trying to look at ways of
discouraging the fraudulent applicant from even coming forward.
Mr. O'Carroll. We agree.
Ms. Speier. Whether it is a notice to them on the
application that if, in fact, it is found that you are
fraudulent in your actions here, that these are the kinds of
things that you will be subject to, something to kind of scare
them into not moving forward. And I'd love your thoughts on
that at a later point.
Mr. O'Carroll. Okay, because we believe, as with Puerto
Rico, it's a good deterrent on it, and also our belief is to
stop it before they go out in terms of what we have at the CDI
units that I'll talk about later to stop it before benefits----
Ms. Speier. So the CDR, there's this huge backlog. How much
money would we have to set aside so that these CDRs could be
appropriately handled and save us $9 for every $1 we spend?
Mr. O'Carroll. I'd have to get back to you on the exact
amount that what it is. What we're asking for is them to be
doing more than 500,000 CDRs a year. We would like that to be
doubled, and that would then have a better effect.
Ms. Speier. Maybe in an subsequent conversation we can ask
Mr. Sklar.
Mr. Lankford. I will just do that right now, if that's okay
with you.
Mr. Sklar, do you know the number on that.
Ms. LaCanfora. If I might respond?
Mr. Lankford. We've brought a technical expert with you.
Thank you.
Ms. LaCanfora. So in the fiscal year 2014 President's
budget, we have a request. We call it the Program Integrity
Administrative Expense Proposal, and we are asking for $1.2
billion. If we were to get that money, we would be able to do
just over 1 million medical CDRs.
Ms. Speier. And you project what kind of savings from that?
Ms. LaCanfora. Oh, that I don't have off the top of my
head, but I can get you that.
Ms. Speier. Well, if it's $9 for every $1, we can basically
make that case.
Ms. LaCanfora. Yes.
Mr. O'Carroll. It could be even be more than that.
Mr. Lankford. Your recommendation on this is 500,000; you-
all's request is a million.
Mr. O'Carroll. No, I had said double.
Mr. Lankford. Okay.
Ms. LaCanfora. So this year we did almost 500,000, so----
Mr. Lankford. Okay, got it. So it's an additional 500,000
then.
Mr. O'Carroll. Yes, Mr. Chairman.
Mr. Lankford. Thank you.
I yield to Mr. Farenthold.
Mr. Farenthold. Thank you very much. And I would like to
follow up on the CDRs for a second as well. You said there's a
huge backlog. Did I miss the number? Do we have the number that
we need to be doing?
Mr. O'Carroll. Yes, Congressman, 1.3 million is what the
backlog is right now.
Mr. Farenthold. I just want to make sure I copied that
correctly.
Now, Mr. O'Carroll, let me ask you this: So as you go
through the CDRs, you're finding folks who have either gotten
better--but, I mean, how many of these are fraudulent claims to
begin with that you're looking at? I mean, is the money better
spent looking at it after the fact, or is the money better
spent kicking up the initial evaluation?
Mr. O'Carroll. Very good question. What we feel is that,
one, once they get on, it's very difficult to know whether they
were disabled at the time that they got on, with the idea of
the CDRs is to catch--not catch, but to identify them if they
have improved.
Mr. Farenthold. I'm good with ``catch,'' because if you're
filing a fraudulent claim, you're ripping off the American
people. I'm okay with ``catch.''
Mr. O'Carroll. Okay, good.
The other one, I guess, is it's easier--rather than letting
the animal or the horses out of the barn and trying to catch
them, our thought is to keep them in the barn or to keep people
from getting the benefits in the beginning if they are not
entitled. And that's one of the reasons why we try to have our
cooperative disability units where if a person comes in
reporting to have a disability on it, and the disability
examiners find that this doesn't really, you know, track
correctly on it, they refer it to this unit, and then this unit
will be taking a look at either--a couple of things. One is the
different types of records out there. So, for example, if a
person is coming in saying they are extremely sight impaired,
and we take a look and run information on motor vehicles and
find out they have a commercial driver's license, I guess
that's what we'd call a clue.
Mr. Farenthold. Right.
Mr. O'Carroll. Other ones that we look at is results--it's
sort of interesting. We are now going to social media where a
person comes in and says that they're incapable of walking or
being in crowds. And we take a look at their Facebook page, and
it shows them in a band or a social group that's out there
working all the time where we have pictures of them, you know,
doing other things.
Mr. Farenthold. Let's get back to the fraud in general. We
talked about going and getting the money paid back and getting
fines. Are the penalties a sufficient deterrent, or do we need
to be looking at kicking up the penalties as well?
Mr. O'Carroll. Congressman, I would say that the penalties
that are out there now for people committing fraud against the
government are good. They are a good deterrent on it. The
problem with it is getting the prosecutions for it. In our
cases what we're finding is it's very difficult to be able to
show that much of a loss to government that a U.S. attorney's
office would be interested in putting into all the resources to
take a person to trial.
Mr. Farenthold. What about penalties for enablers; that
would be doctors or lawyers that continue to prosecute or
authorize or document these claims?
Mr. O'Carroll. The penalties are there. They're strict.
I've got to tell you on one good example that we're having,
which has gotten a lot of publicity, is within Puerto Rico
where we had a bunch of doctors and others, nonattorney reps
and reps that were bringing people on. The U.S. Attorney's
Office there--I was down there and met with the U.S. attorney
on it. She assures us that, one, the penalties will be strict,
that they're going to be enforced, and that there should be
jail time involved. So I think that we're going to have a very
good signal that is sent on that when they use the laws to
enforce it.
Mr. Farenthold. Again, some disabilities are temporary in
nature can improve with medical treatment or technology,
improve to where that disability is not as disabling, I guess,
if you will. Do you think there are adequate incentives within
the system for a person to work whatever programs, say, their
physical therapist gives them, or to continue treatment for
whatever mental disorder, or is there a sense, well, I'm on
this for good, I'm just going to--I don't have to work, I'm
getting a check in the mail?
Mr. O'Carroll. Well, let's put it this way: I would prefer
the latter not be the word that's out there on the street. And
what we're hoping to do is to send a signal that if you have
improved, you shouldn't be getting the benefit, and what we're
trying to do with that.
By the same token--and I got to say as we monitor that, the
SSA takes a look at what are the risks--not the risks, what are
the success rates of different types of illnesses, et cetera,
and then those are the ones that we're saying should be brought
in for the CDRs.
Mr. Farenthold. Listen, I don't think any of us here want
to deny benefits to somebody who needs benefits. We need to
make sure that there's adequate resources to provide benefits
for everyone who needs it, while still encouraging people to
live a good and fulfilling life. I find that I'm a whole lot
happier when I'm actually out doing something and not sitting
at home.
I yield back. Thank you.
Mr. Lankford. Ms. Duckworth.
Ms. Duckworth. Thank you, Mr. Chairman.
The Social Security Disability Insurance and Security
Income program provide a critical lifeline that allows nearly
12 million severely disabled Americans the opportunity to live
dignified lives. The benefits that they earn through this
program are very modest, about $1,000, $1,100 a month, barely
above the--at the poverty level. And they generally represent
the majority of the income for the recipient.
But knowing this, I want to make sure that people who don't
deserve it are not getting it. So, Mr. O'Connor--Mr. O'Carroll,
I'm sorry, in your audit your office identified some issues
regarding the termination of disability benefits following a
CDS cessation determination. So even for the 500,000 that are
being conducted and decisions are being made, if the decision
is that--to remove the person from the--to terminate the
benefits, I'd like to talk about how we go about doing that.
And if you could talk a little bit about your recommendation
for enhancing the ability of the processing system to perform
automated terminations and the like. Since we do have a
backlog, and we're not doing quite enough, and when we finally
do have a determination, are we actually following through?
Mr. O'Carroll. What we're finding on that, Congresswoman
Duckworth, is about--in our audit we found about 30 percent of
the time that a person was identified as having improved and
should have been ceased in terms of getting their benefits,
that they weren't enacted. And we found I think it was about
half of that, 16 percent, in the SSI side of the house.
We made recommendations to SSA to automate that so they
could get the word out immediately. And one of the things that
we found when we did the audit at that time was that many times
once the disability review was done, it was put on a piece of
paper, put on the front of the folder for that individual on
it, and then when it got refiled or whatever it was, the
termination notice slipped off, was not found or whatever, and
it never was enacted. As a result of that, we told SSA that it
would make much more sense to automate this so that when the
person is turned off when the record is pulled up, that it'll
show that they were declined, and that it would be done much
more quickly. That we recommended to SSA, it was part of our--
they agreed with us on it, and they said that they'll implement
it with resources allowing.
Ms. Duckworth. It hasn't been implemented?
Mr. O'Carroll. I think I'll turn to SSA on that one.
Mr. Lankford. I'm going to ask you to turn your microphone
on.
Ms. LaCanfora. My apologies.
There's a two-part process that we've undertaken, and we
appreciate the work that the inspector general did. It was very
helpful for us. And the first part of our process is that
although the termination of a continuing disability review is
not automated, we are doing what we call runs. So in other
words, we go into the system annually, and we look for those
cases in the same way that the IG did when they identified the
ones that weren't getting terminated. So we have been doing
that now for a couple of years, and we will continue to do that
to make sure that there are none slipping through the cracks.
So that's part one.
Part two, which is our longer-term plan, is to fully
automate the process. It's a little bit more complicated than
meets the eye, but we do intend to do that. In the meantime we
will do the annual run or the sweep to make sure we don't have
cases falling through the cracks.
Ms. Duckworth. So if we're looking at about 16 percent are
not actually being carried through, roughly, Mr. O'Carroll, is
that 16 percent of the 500,000?
Mr. O'Carroll. That's 16 percent of SSI.
Ms. Duckworth. Of SSI.
Mr. O'Carroll. And DI, the disability side, is a much
higher percent. It's almost 30 percent weren't. And that was
also, too--I got to say not at all, and I guess a delayed one,
about 3 months at least.
Ms. Duckworth. Okay. Ms. LaCanfora, how much--when you're
going through manually and doing this review, are you catching
the 16 percent on SSI and the 30 percent on the disability? The
IG is saying that that's what they're seeing.
Ms. LaCanfora. Yes. We didn't corroborate their numbers,
because their numbers obviously were a sample that they took,
and then they projected those numbers against the entire
universe. We are not, you know, tracking the percentages per
se, but we are making sure that we capture them. So we're using
sampling criteria to look at any case where the DDS has or the
ALJ has decided that that person is no longer disabled and
making sure that that decision is carried all the way through
to our payment records in every case.
Ms. Duckworth. What's your projection for stage 2? How long
is that going to take to implement, to go fully automated?
Ms. LaCanfora. I'm very encouraged by the discussions that
we've been having in the agency and our ability to do that, so
while I don't have a timeline, I'm hopeful that it will not be
far off.
Ms. Duckworth. Five years, two years, ten years?
Ms. LaCanfora. Two or less.
Ms. Duckworth. Thank you.
Mr. O'Carroll, in your testimony you said that the IG's has
long placed a high priority on allegations of third-party
facilitator fraud. What other initiatives are taking place to
root out third-party facilitator fraud?
Mr. O'Carroll. Congresswoman, that's sort of--one of our
thoughts when we came up with Puerto Rico and some other places
on it where it looked like outsiders were facilitating people
getting onto the rolls, what we decided to do was take sort of
a hybrid of what we use with our CDI units where we have local
law enforcement as well as our agents involved, and what we've
started to do was to start using automated records going
through trying to look for any type of association, looking for
the boilerplate diagnoses, other issues on it.
We've got pilots going in the California region and the
Chicago region right now, and what we're doing with it is that
we're identifying anybody who's bringing large amounts of
people onto the rolls and making sure that all of their ways of
doing it is legal, and that it's not bending the rules or
whatever on it. So we've got a team which we have an
administrative law judge that's assigned from ODAR working with
our investigators on it, and we're trying to look for any
anomalies in terms of people coming on. Like I say, we've been
doing that pilot for about 8 months now, and we've got about
four different major investigations going because of it.
Ms. Duckworth. Thank you, Mr. Chairman.
Mr. Lankford. Thank you.
Mr. Horsford, before I recognize you on that, just to let
you know, when Mr. Horsford concludes, I'm going to open this
up for colloquy for all of us to be able to engage in a
conversation with our witnesses. So we're going to shift from a
5-minute time period to just an open colloquy. So if you want
to participate in that, you're obviously welcome to do that as
well.
Mr. Horsford, you are recognized for 5 minutes.
Mr. Horsford. Thank you, Mr. Chairman. I would like to
thank you for your opening comments to Mr. Sklar that this is
in no way personal, and actually, in fact, under his
leadership, there have been major improvements on the
administration side of the aisle, improvements that we need to
keep making progress towards.
But unfortunately, there also seems to be some
misrepresentation of some of the facts that are being presented
today. And so I want to kind of just allow the opportunity for
some of our witnesses to bring forward all of the information
that the committee should consider.
Mr. Sklar and Judge--is it Bede?
Judge Bede. Bede. Close enough.
Mr. Horsford. Apologize for that.
Does the allowance rate of the judges the majority
identifies today say anything conclusive about whether or not
the judges correctly applied the law and agency guidance to the
applications for disability benefits that came before them?
Mr. O'Carroll. I'll take it first, and then I'll let Judge
Bede jump in.
I will say the allowance rate right now is probably at a
40-year historic low, so that's just an observation, and we've
been very consistent in pushing the policy compliance message.
I believe the judges are really responding well not just to
training, but to automated tools, to feedback. They've shown a
willingness to listen, and I'm really impressed.
So, Judge Bede, other thoughts?
Judge Bede. No, I would agree with that and also indicate
that the mere fact that a case has been seen twice by the State
agencies and yet is reversed by the administrative law judge
does not mean that either one of them was wrong. At the time
the DDS, the Disability Determinations Service, ruled on the
case, it may clearly have been that the claimant was not
disabled. By the time it gets to an administrative law judge,
time has passed, the record has been augmented, the claimant's
condition may have deteriorated. And so what was once a clear
affirmation that the claimant was not disabled becomes a clear
reversal that the claimant is now disabled. So the figures
themselves may lead you to feel that you have to look behind
the facts, but they don't establish any correctness or
incorrectness.
Mr. Horsford. So the allowance rate alone doesn't say
anything about the quality of the decisions?
Judge Bede. Absolutely.
Mr. Lankford. Would the gentleman yield for one moment?
Would that include a judge that approves 99.4 percent of all
cases, because we have some judges like that as well? Should
that raise a red flag?
Judge Bede. Well, it should raise a red flag, but it does
not mean that any particular case was wrongly decided.
Mr. Lankford. I do understand that on that, but there is
some signal with that as well to say there may be an issue here
at some point.
Judge Bede. Absolutely.
Mr. Lankford. I yield back. I apologize.
Mr. Horsford. I think the issue, Mr. Chairman, becomes the
fact that we're not providing all of the cases, and it's my
understanding that the Appeals Council's job is to actually
perform the reviews of judges' decisions and collect
information on the quality of those decisions; is that correct,
Mr. Sklar?
Mr. O'Carroll. Yes, that's correct. And just to provide a
little bit of perspective, I know we spent a lot a time talking
about fraud and antifraud measures this morning, but for
perspective it is important to recognize that the fraud
incidence rate in this program is really quite low, typically
less than 1 percent, and our overhead cost runs about 2
percent.
So it is a well-run program. I know in any system you can
always do better, and that's why we're here. We're glad the
committee is having this hearing, and we welcome the feedback.
Mr. Horsford. Mr. Sklar, in the presentation of the charts
earlier, did the majority ever ask you for statistics on the
quality of judges--the decisions before they put up the chart
on the allowance rate of certain judges?
Mr. Sklar. I'm not aware of that particular request, no.
Mr. Horsford. And so how is it, then, that we were able to
then just see a certain select few decisions by judges rather
than taking into account the decisions of a larger percentage
that reflect all the work of the administration?
Mr. Sklar. I think it's a fair point. Again, it's a very
large corps. There are over 1,500 judges, and I'm sure there
are judges on the low end of the spectrum as well we could have
put up on the screen with allowance rates around 10 percent.
Mr. Horsford. So can you provide that information to the
committee?
Mr. Horsford. And, Mr. Chairman, can we have as a part of
this conversation--I know this is the second hearing that
you've held on this issue, but I think it will be worthwhile
for the committee to see both the high and the low range and
the full scope rather than just highlighting, you know, 142,
which represent about 10 percent of all the judges' decisions
rather than, you know, the full scope and the range.
Mr. Lankford. I would have no issue trying to provide that
to both sides, and we try to be very fair to be able to provide
everybody all the data on it. Our issue on it is, there are
truly disabled people, that we're about 2-1/2 years away from
insolvency in this program, that can be hurt on this if we
don't find a way to be able to resolve this issue soon. And I
do not want the truly disabled to be hurt in this process while
some people, whatever small number that may be that we are
aware of we're not catching.
And in the ALJ process, if we're not able to do reviews, if
there is a judge that's out there that is not held to account
and there's not a good process to hold someone to account in
that, we need to find a way to do that. All of us have
accountability, all of us, and so there should be clear lines
of accountability that when there's a problem we address it
whether it's low or high, either way.
Ms. Speier. Could I just ask a follow-up question? You
referenced, Mr. Sklar, that the actual fraud rate is very low,
less than actually the administrative costs, which is important
to keep in mind. But is that fraud rate low in part because we
don't have the resources to do the CDRs? And that's a question
really to you and to Mr. O'Carroll.
Mr. O'Carroll. I guess the first one, the only thing, that
I always get put in the position on this one, the agency says
that it's less than 1 percent for the amount of fraud, is our
concern on it is, is when you have billions of dollars going
out every day, 1 percent is a very high number, and to any
taxpayer any dollar that's misspent is a high number to it.
So our feeling on it is, is that, yes, we're taking a look
at--when you take a look at improper payments and you go across
the board for improper payments, the improper payment level for
SSA is less than 1 percent. That's improper payments, and
that's ones that shouldn't go out. And of that, a portion of it
or a large portion of it is fraudulent, which is what we're
taking a look at. And our feeling on it is, is any antifraud
methods that you can be doing to discourage fraud or good CDRs,
as you brought up, is one.
If we did more CDRs on it, it would have two effects. One,
we would identify people that are being put on--or that are
getting on the rolls that shouldn't be put on the rolls, which
would identify the fraud, and the other part of the CDRs is as
a deterrent, just so that you know that when you are getting
better, if it's a 50/50 whether you're going to come in and say
that you're better and ask to be removed from it, it lets
everybody know that the agency is going to be checking back to
see if you got better. And I think that's something that we all
hope for is, is that we give you benefits and that you get
better.
Mr. Lankford. Just to clarify before I move to Ms. Lujan
Grisham, we are going to recognize you for 5 as well, the 1
percent number, that is improper payments, in other words we
sent a payment to someone that they either shouldn't have
received that or they're deceased now or whatever it may be.
That's not a statement of we have 1 percent of people that if
we were to go out and test in the field with CDRs, we only have
1 percent of the folks that are receiving disability that
shouldn't receive disability. Is that clear?
Mr. O'Carroll. Correct, Chairman.
Mr. Lankford. Okay.
Ms. Speier. So it could be higher?
Mr. O'Carroll. Yes.
Mr. Lankford. Ms. Lujan Grisham.
Ms. Lujan Grisham. Mr. Chairman, thank you very much.
And, panelists, thank you very much for being here today.
We all agree, we want a zero percent, if that would ever be
a realistic number, we want there to be no bad actors and we
don't want any mistakes. We don't want constituents who are
trying to receive disability benefits who don't qualify, and we
don't want folks in the administration making mistakes. And
anything that we do in this committee, anything that you do
that improves the opportunity for these programs is meaningful.
And I appreciate the chairman's statement that, you know, we
want to make sure that we do everything we can to have a
benefits program that's available for future and current folks
who are waiting for these disability benefits.
But I would point out a couple of things, and one is that
folks on disability, you know, can be stabilized, we hope, and
some things improve, but they're permanently disabled, they
don't get better. It's kind of like the Medicaid program for
persons with developmental disabilities, and across the country
we require a level of care review every year, and as far as I
know, you cannot cure Down Syndrome. So you have that every
year unless there was a pretty significant misdiagnosis early
on.
People live longer. These programs are going to be more and
more expensive. And it is something that we are going to have
to think about as future policymakers, about what we spend,
clearly, and how we do that, and what we can do to prevent
disabilities and maybe get beyond a growth rate that we see in
this country. And coming from a State where we have some of the
highest disability populations, and just disabilities due to
accidents from alcohol, significant issues that we could
certainly as a State work harder to do a betterjob. And of
course, you know, I worry as much as anyone about the fact that
not only do you take a long time--thank you for improving that
to a year. In my poverty law days it took 3 years to get
somebody's disability application approved, and then I would
have to explain to them how they didn't get any health care
benefits for 2 years but had been deemed disabled and sick.
So it's still a tough, since the Medicare benefit is 24
months later after the disability determination, it's a program
that's got some interesting--you get sicker before you get
better, but then we're worried about how much money we're
spending and what the efficacy is. And I could spend 3 more
minutes before you ever get to anything about what you're doing
currently about a program that we just don't do these programs
right. We're still learning how to make them fair and
judicious, effective, and keep out fraud on all ends for these
programs.
So I just wanted to say I appreciate those efforts. I think
they're important. And like everybody here, I expect government
programs to work, and I want to ferret out folks who are taking
advantage at any level, both providers, judges, and the
administration, and constituents, and however they're taking
advantage.
Given that you have had lots of questions about the judges'
actions and what you're doing in your quality review process,
I'm going to talk a little bit more about the error rate, and I
don't think given what I've heard today or read that the
approval rates don't demonstrate whether the benefits are
correctly or incorrectly denied.
So it's my understanding, then, Mr. Sklar, that the
Division of Quality reviews a random sample then of the ALJ
decisions to award benefits. Am I correct about that, that it's
all random?
Mr. Sklar. Yes.
Ms. Lujan Grisham. And then based on that random review,
how often do we identify that the benefits are incorrectly
awarded?
Mr. Sklar. Again, I could supply that information for the
record. It's pretty technical, and I don't want to take you
down the wrong path. But we are using that data to inform
future policies and to give feedback to the judges. We give it
to them in real time, and we're seeing significant behavioral
changes on behalf of the judges.
Ms. Lujan Grisham. I would really be interested if it's all
right with the committee and the chairman that we continue to
get that information because then it really goes to, as you do
those random reviews, you're seeing a change of behavior, I
would be interested in what that indicates, what we think that
indicates so that as we're looking at resources for the CDR and
related programs that there's a partnership about what really
makes a difference. Because as you then go to the appeals
portion, how often then does the appeals council reverse those
judges' decisions? Do we have that data?
Mr. Sklar. So just one quick comment. There also is a
second type of review done by the Division of Quality. We also
do focused reviews. Those are after the money has gone out.
They're closed case reviews. But in that instance you actually
can be a little bit more targeted, you can look at individual
ALJs, you can look at individual hearing offices or
representatives or a combination of representatives and judges
working together. Whatever you want to look at you can look at,
and we do pick areas where we think it will be productive.
Ms. Lujan Grisham. That would be great. So, again, with the
committee's approval, I would love more information about the
focused reviews, and instead of asking--and this has been
helpful. I also believe that there's a certain number of people
who don't know that they should appeal, poor advocacy advice,
poor legal advice, disability prevents them, particularly if
it's a mental health disability, can't get it done. Is there a
process to take a look at how many people should have been
approved those disability benefits but are never in a position
to actually do the appeal?
Mr. Sklar. From time to time we do take a look at
unappealed cases. We can try to get you whatever data we have.
That actually might fall more under the purview of our policy
folks as well, but we'll put together what we can on appeal
cases.
Ms. Lujan Grisham. I would love that. I would love,
frankly,--I've only got a couple--I think I'm over--as much
information about what we could do and how we could do this
better so that folks get those benefits when they need them.
We're spending less then on the care and services that they
need, but that income gives them an opportunity to access the
healthcare system and related supports, including housing as an
example, and that this whole process is streamlined and
effective so that we're making the best decisions about
preserving it for future beneficiaries.
Thank you, Mr. Chairman.
Mr. Lankford. Thank you.
Ms. Lujan Grisham. I yield back.
Mr. Lankford. We will get into some of those conversations
right after I recognize Mr. Walberg.
Mr. Walberg. Thank you, Mr. Chairman.
And thanks to the panel for being here. Sorry I missed much
of it being in another committee hearing. But I did have some
questions, especially flowing from our last opportunity on this
issue.
Mr. O'Carroll, what are the actual savings, I would be
interested to know, associated with CDRs or redeterminations?
Mr. O'Carroll. Congressman, what we found with CDRs, it's
about a 9-1 return on investment, and with the SSI or the
redeterminations it's about a 5-1. However, last year when we
went back and----
Mr. Walberg. For each dollar spent, there's $9 gained.
Mr. O'Carroll. Yeah.
Mr. Walberg. Or $5 gained in the case of----
Mr. O'Carroll. Yes, Congressman. We figure it's about
$1,000 to do a CDR, and then when you start taking a look at
for every CDR that a person is turned down or is off the rolls,
it's a significant savings on it. So that's where we're
figuring the 9-1.
However, we went back, and that's over a long period of
time. Last year, I guess in 20--yeah, last year, we took a look
at it again, just to see in a 1-year period what the return on
investment of it was, and at that time it went up to 13-1. So
it's a very, very, you know, cost-effective way of doing it,
these CDRs, it's a good investment.
Mr. Walberg. What recommendations then have been made and
what has SSA done to address the CDR backlog?
Mr. O'Carroll. Well, recommendations--and I'll let SSA
answer what they've done on it--our recommendation was to do
more of them to reduce the backlog because when you figure for
every year that the backlog remains where it's at, it's over a
billion dollars that could have been saved by reducing the
backlog on it. So we're telling SSA, one, to stay current,
which would be not to increase the backlog on it. And they've
been doing a fairly good job of staying current on it. So the
backlog hasn't been growing. In fact, it was staying flat. Last
year it went up a little bit. It went up about 100,000 last
year on it. So our recommendation to SSA is to put more
resources towards CDRs so that, one, they're staying current,
and, two, they reduce the backlog on it.
Mr. Walberg. Do you feel they've been doing that, putting
more resources to it?
Mr. O'Carroll. I think they have been doing more on it. I
don't know whether they've done--I think, to my liking, they
should be doing more. But I've got to say is over the last few
years that their, you know, integrity work that they have been
doing is increasing. It's staying, as I said, current, which is
very good, so the backlog hasn't grown.
So, one, I guess the best thing I can say is we encourage
them to do more. We're asking probably also, too, is we're in
agreement with them, if money is earmarked or designated in the
appropriation to be done on the CDRs, they will do it. And
whenever they are given extra money to do CDRs, they are done.
So I guess the thing that I could take away from this is,
is that we encourage an integrity fund be established that
forces them to do CDRs, and that way any other competing
resource issues that they have won't reflect on it, and they
will do the CDRs and do it.
Mr. Walberg. Okay. Before I go to Mr. Sklar, how many
taxpayer dollars would be saved per year if SSA performed CDRs
on time?
Mr. O'Carroll. What we're saying right now is, is between 1
to 2 billion dollars is saved every year by reducing the CDRs
and doing them all on time.
Ms. LaCanfora. May I offer a number as well that might help
to answer your question? And this was an answer to a question
that Ranking Member Speier posed earlier in terms of the return
on investment. So Mr. O'Carroll said that the return on
investment is $9 saved for every $1 spent. And another number
that you may find handy is that in this fiscal year, fiscal
year 2012, we're asking for $1.2 billion to be able to do CDRs,
and if we get that money we could do just over 1 million CDRs.
And if you include the amount of Medicare and Medicaid savings
that we would get if we spent that money, it would amount to
$40 billion over 10 years in savings.
Mr. Walberg. Okay, thank you.
Mr. Sklar, will the agency prioritize erasing the 1.3
million backlog of CDRs.
Mr. Sklar. Actually I'll defer to my counterpart.
Ms. LaCanfora. We share your interest in getting current
with CDRs. We think it's one of the most critical
responsibilities that we have.
Mr. Walberg. With those type of dollars, I would hope so.
Ms. LaCanfora. That's right. And we have shifted resources.
To your question earlier about have we committed and have we
made progress, in every year since 2007, with one small
exception, we have increased both the number of medical CDRs
and SSI nonmedical redeterminations. Right now we're at an all-
time high, over a million SSI nondisability redeterminations
performed in the last fiscal year.
So what we're asking for from the Congress is the adequate
funding to be able to continue along those lines. And in terms
of shifting resources, we have done that. I think this
committee knows that we close our field offices to the public 8
hours a week. We close at noon on Wednesdays, we close an hour
earlier every day than we used to. And we did that specifically
so that we could focus more attention on program integrity work
instead of dealing directly with the public, taking claims.
Mr. Walberg. Thank you.
Mr. Lankford. For those that are here on the dais that have
not been in one of these conversations before, what I'm going
to do is I am just going to open it up to open conversation,
not do a limited 5-minute time period. We are going to try to
run through a bunch of questions, and that allows interaction
both here on the dais and with the witnesses as well. We have a
lot of issues that I want to make sure that we get covered.
It's sometimes difficult to do in a structured 5-minute time
period.
And what we have talked about briefly as we started this
hearing, and what I spoke with you about before the hearing
started as well is it's one thing to talk about the problems,
we've got to talk about solutions. And so what I would like to
do is run through some of the things that have been proposed,
either the IG has proposed or we have heard from Senate
committees or other House committees here, or, Mr. Sklar, you
actually laid some of these things out in the past, and to be
able to run through what are the ideas of how do we fix this,
where do we go.
And so I would like to just start kind of peppering through
this, and we're able to interact at a new level. If you have
another statement that you want to jump in on, we'll jump in as
we go.
Let me ask the first question on it. As far as the limited
dollars, more dollars should be invested in the CDR side of it
or the CDI side of it or is it just at both ends? Which one
gets us a greater bang for the buck, actually doing more
investigation before they get in at the beginning or more
investigations once they're actually in the system?
Mr. O'Carroll. Boy, that's a tough question. I've got to
say on both of them, what we've asked for with the integrity
fund is considering both of them, because also the other issue,
what gets it a little more complicated is, is when CDIs are
done, and if as a result of doing--I'm sorry, when a CDR is
done, if as a result of it there's something either
questionable, suspicious, or anything that needs some follow-up
investigation on it, that's where the CDI units come in handy.
And we found by working with judges and ODAR, if there's a
question that comes up in an appeal, the CDI units are equipped
to be able to go out and be able to validate or find more
information on it. So I've got to say they're both linked very
closely together, and if there was anything in terms of
guidance from an integrity fund I would like them both to be
considered.
Mr. Lankford. Is it the assumption, if you're talking about
the $1.2 billion, is the assumption that it's for both or is
that just CDRs?
Ms. LaCanfora. That's strictly medical CDRs.
Ms. Speier. So what's a CDI then?
Mr. O'Carroll. A CDI unit is basically what we're taking a
look on. The bottom line is it's about $100,000 per CDI unit,
and that's----
Mr. Lankford. And they'll do how many cases with that?
Mr. O'Carroll. And of that we have 26 CDI units in 21
States at the moment on it. We would like to expand it into all
the States. And what happens with that on it is, is the IG
supports the investigator in it, SSA supports the location as
well as the local investigators on it, the DDS employees, and
the MSS or Social Security employees. So most of the expense
goes to SSA.
Mr. Sklar. If I could just jump in on this, too, I'm a bit
of a compromised witness on this one in that I helped set these
up about 15 years ago. I think they're a tremendous value.
They're front-end fraud detection. We've had a lot of
discussions on the podium about how much to get back after the
money has gone out the door, and we all know not that much.
Mr. Lankford. Right.
Mr. Sklar. We do the best we can. We have collection tools.
But ultimately you're getting pennies back on the dollar. You
have to catch it at the front end. And it's the type of cases,
the complex fraud conspiracies that Mr. O'Carroll's office has
been working on and we try to support that you can use a CDI
unit to get at the front. So I would be a strong advocate. I've
never understood why we don't have a CDI unit in every State.
Mr. Lankford. How do we fix that? Give me just a for
instance here. When you've got a Judge Daugherty who is 99
percent approval, all the issues that come up, you've got to
look at the focused review of the judge and how do we even get
into this process, but a CDI should have caught this early on
or some kind of process to say we have a problem here. So it's
either a focused review of the judges or it's some kind of
investigation at the beginning of it to determine same doctors,
same judge, same process, all run out of a few trailers in West
Virginia, maybe there's a problem here; yes, there is. And
obviously the IG is able to identify that and start working
through the process. That's part of what my question is, how do
we get it on the front end?
Mr. Sklar. This is actually the infrastructure to get in on
the front end. I've always been confused why we haven't been
funded to have one in every State. I think it's very important.
Ms. Speier. Okay, but to that point, Mr. Bede, you're in
charge in West Virginia, correct?
Judge Bede. I am not currently involved in the operation of
the Huntington, West Virginia, office.
Ms. Speier. But you were?
Judge Bede. I was, until the Wall Street Journal article.
Ms. Speier. Okay. So in hindsight now, do you feel that
there should be some role for a person like you in each office
to review the work of judges to see if there is any kind of
collaboration going on? Did you miss that?
Judge Bede. Well, I'm not in West Virginia, and in the
local office there could be, if it becomes clear to other
people--in this office apparently one judge was doing this, and
it was not, at least at first, clear to other people in the
office. So if he isn't going to report it----
Ms. Speier. Well, he's clearly not going to report it,
right?
Judge Bede. Right.
Ms. Speier. I mean, He's part of the cabal?
Judge Bede. It makes it very difficult.
Ms. Speier. So I guess I'm trying to understand, is
everyone so autonomous that there's no oversight of any of
these judges?
Judge Bede. Well, no, that's not the case. There is
certainly oversight. But what we're saying is that we cannot
tell a judge how to decide a case.
Ms. Speier. No, but we're not asking that.
Judge Bede. Right. No, I recognize that. But once it's
decided, it falls into the purview of the Office of Appellate
Operations. I don't have the staff or--well, I just don't have
the staff to look at every judge's decision every day.
Mr. Lankford. Do you have the authority to step in, though?
If you have a suspicion that that there's a problem, who has
the authority to step in?
Judge Bede. Yes, if I have a suspicion or if a suspicion is
raised that there are unsavory activities, then we would look
at that, and we would probably refer it to the Inspector
General's office, and obviously keep our--the Chief Judge's
office and the Deputy Commissioner's office in the loop as
well.
And that's what we have done in other cases, and none of
them as significant as this, but there have been other doctors
who no longer have licenses, reports----
Ms. Speier. Some of those things are really obvious.
Judge Bede. --medical reports that are the same for----
Ms. Speier. I mean, if someone's dead or someone doesn't
have the ability to practice medicine anymore, those are
gimmes. This is where there's a concerted effort, a cabal to,
you know, rig the system.
So, Mr. O'Carroll, you have a comment to make here?
Mr. O'Carroll. Thanks. One of the comments that I made
amongst our own Office of Inspector General is, is I don't want
to have to be reading about another hearing office or anything
else in the newspaper on it. I would rather us identify it in
advance. And so as a result of that, we have a group working
with Glenn Sklar's office on it on trying to look for outliers
or try to find, again, somebody, any type of connections
between lawyers and judges or anything elsewhere where we're
taking a look at doctor providers that are all doing this
thing.
So, anyway, I've got to assure you is, is that we're doing
everything we can to be working with the office of ODAR to
identify any anomalies out there and try to stop them before
they happen. And I've got to say Huntington got by us in regard
to--there's a lot of issues on it that came out at the last
hearing on it and different things about it is, is that we're
trying to find what--I guess what went wrong and what we can
use to identify it. That's why we have our pilot right now on
disability fraud.
Mr. Lankford. All right. Go ahead.
Mr. Sklar. I'm sorry, if I may. Just one comment. One thing
that is really quite different. We have a very well developed
electronic recordkeeping system now. We're collecting reams and
reams of data. And in many ways I would call it big data at
this point where we're going in and looking for patterns and
anomalies and really leveraging modern technologies. We have
experienced programmatic people, economists, statisticians
plowing through the data to try to find the next problem.
So I think if you look back, Puerto Rico is a good example
of where we caught it, 4-1/2 years ago the employees in the
Puerto Rico DDS found it and they turned it over to Mr.
O'Carroll's office.
Ms. Speier. Four years ago, though.
Mr. Sklar. Well, it does take a really long time to put
together a complex conspiracy case, and they had surveillance,
and they needed to--there was a lot of work that needed to be
done. We actually supported them many steps of the way. But
Huntington was a little bit different.
Ms. Speier. Well, how long has your big data been
operational?
Mr. Sklar. I would say for the last 2 or 3 years, and quite
frankly----
Ms. Speier. So you should have found Huntington. I guess
I'm trying to----
Mr. Sklar. Yeah.
Ms. Speier. I'm not trying to----
Mr. Sklar. Yeah.
Ms. Speier. No one is trying to beat anyone up here. We are
trying to find out what we have to do to make sure that there
aren't more Huntingtons in our future. And we do know one
thing: If there is a void, people find a way to fill it. If
there's a void in terms of finding the Huntingtons, there are
going to be Huntingtons all over this country, because there
just happen to be folks out there that are going to try to rip
off the system. It's just the reality.
And, Mr. Chairman, I just asked my staff to research this,
and I think this is very helpful to this discussion. When the
Affordable Care Act passed one of the things that was included
in it was money for Medicare fraud over 10 years, $350 million
over 10 years, so it's $35 million a year. In the 3 years that
it's been operational, so a total of $100 million that has been
spent, they have already recovered $10.7 billion in fraud. So
we know that those folks are out there, and they're going to
prey on the Medicare system, they will prey on the social
security disability system. They will prey on any worker's comp
systems.
They are professional rip-off artists, and it's our job to
shut them down and be smarter than them in terms of shutting
the door before they even get to open it. So you've got to
provide us more kind of help in what we need to craft so that
you can get your job done and so that we don't ever have to
beat you up.
Mr. Lankford. I fully agree on that.
Let me walk through a couple of things as well, and other
members should feel free to be able to jump in on issues here.
On the claimant representatives, the duty of candor, issue to
clear regulations requiring claimant representatives to submit
all relevant evidence in advance. Are we in agreement? I know
you mentioned before on this, Mr. Sklar, that this is a pilot
in some areas. How is that moving? Where do we go from here?
Mr. Sklar. Things are moving pretty rapidly. We had a
wonderful study done by the Administrative Conference of the
United States. We took that study very seriously, we have had
serious discussions back at Social Security. And I can't say
very much about it, but let's just say something has moved from
Social Security to the Office of Management and Budget in that
regard.
Mr. Lankford. Okay. Is that something we can talk about
more off line?
Mr. Sklar. Yes.
Mr. Lankford. Okay.
Mr. Walberg. Could I just jump in on that same issue, the
duty of candor? Who represents the taxpayer in the hearing
process? As I understand it, both sides aren't represented? Who
represents the taxpayer?
Judge Bede. Well, as an administrative law judge, there is
a duty to represent, to protect the taxpayer as well as to
ensure that the claimant gets a fair hearing, and all of our
administrative law judges are aware of that and take it very
seriously, possibly with the exception of a few judges who
allow all of their cases. But it is part of the job of the
administrative law judge to ensure that benefits are not
awarded frivolously and that the government is--the trust fund
is protected.
Mr. Walberg. But it seems to me, advise me if I'm off base,
but if the hearings are nonadversarial, why does only one side
have representation? Are we missing something, especially when
we're talking about the load, the backlog, and all the rest
that goes on, are we missing something in not having direct
representation for both sides?
Judge Bede. I personally don't think that having the
government represented would add a whole lot to the process. I
don't know if Commissioner Sklar----
Mr. Sklar. If I could just chime in really quickly on the
history. This was set up, this program was set up quite some
time ago as a nonadversarial program, and it has been enshrined
in Supreme Court case law as such. We did try a brief array in
the 1980s with a government rep project and were ultimately
shut down by a combination of the Federal courts and outrage in
Congress.
Since that time we have made a lot of changes. We've
actually beefed up the staffing behind the judges. For example,
we do have clerks that marshal the evidence and exhibit the
file and get everything ready, we do have decision writers
behind the ALJs, we have senior attorneys they can turn to if
they have a tough policy decision and they want to work up the
file. So it's not just the ALJ by himself or herself anymore.
There's literally four or five people standing behind every
administrative law judge.
Mr. Lankford. Can I ask you a question on that
specifically? Are those, all those support folks around there,
are they assigned to a specific judge or they're still working
with the pool? Because part of the conversation we had with the
judges was they didn't know which technical person was going to
be assigned to them. Just that relationship between the judge
and their assistant doesn't seem to actually happen in this
particular setting. I know there are some issues we talked
about before, them being union and supervising and all those
kind of dynamics, but is there a need to get decision writers
and technicians assigned to specific ALJs, that they form that
rhythm and know what's going on, or is it your opinion that
should not happen, they should continue to be a pool?
Mr. Sklar. Actually it's somewhat interesting. We have both
models running right now.
Mr. Lankford. Okay.
Mr. Sklar. In the traditional hearing office model it is a
pool model, and for various reasons you've mentioned previously
they don't directly supervise the staff. On the other hand, we
have the national hearing centers, there are five of them
nationally, they are all video units, they do only video cases,
and they supervise their law clerks. And quite frankly, the
judges love the model and the law clerks really seem to like
the model a lot.
Mr. Lankford. Is that something that could be multiplied
out that you're finding efficiency in or just preference?
Mr. Sklar. Again, it's something that certainly could be
expanded, and we've looked at it. But we do run into labor
issues with that as well.
Ms. Duckworth. Mr. Chairman, I wanted to add on to this.
I'm a little confused because I want to make sure that we
understood, I have a better understanding, on what resources
you need. Some of these things seems like these are models and
pilots you're putting into place so that you have the
capability to do it, and then there are some issues that have
to do with funding as a resource, which is the 2014 budget
looking at the money so that you can do the CDRs, over 1.2
million CDRs.
Are there other things that you need from us to help you?
For example, Mr. O'Carroll, you talked about the MIRS, the
Medical Improvement Review Standards, and how someone who is
incorrectly put onto, has been determined as being disabled,
actually SSA has a hard time taking them off the rolls because
those standards are there. Is that fix a legislative fix or is
that an SSA fix?
Mr. O'Carroll. That one would be, I guess, a little bit of
both. One is, is that by law, once they've been found, you
know, as disabled on it, it's impossible to go back and review
it again, which is the whole issue of the improvement on it. If
you're incorrectly diagnosed, there's no way you're going to be
able to show improvement. So that's a little bit, one, by law,
they're entitled to it, and two is by SSA, you know,
instructions. But the agency----
Ms. Duckworth. So if one of these doctors that's
collaborating says that this person is disabled but they're not
disabled and they're put on to the rolls, we don't have a way
to take them off or MIRS makes it that much more difficult to
take them off?
Mr. O'Carroll. We can take them off. The exception on it is
fraud, and if we can show there was fraud in the fact that they
were put on it, yes, we can take them off. Good example on that
was in Puerto Rico we have identified 71 people that doctors
have put on erroneously on it. We can take them off and did
take them off immediately because it was fraud involved.
Ms. Duckworth. But incompetence is not an excuse?
Mr. O'Carroll. No.
Ms. Duckworth. Okay.
Ms. LaCanfora.
Mr. O'Carroll. And the other one, though, again, I guess on
this one here what we're talking is, is that you were asking
what resources are necessary. I just want to go on record here
is, is that, one, we talked about the CDI units and how
effective they are and the return on investment on it, and I
agree, and that's very, very important.
Another one that I've got to say is, is that, you know, in
our case here we've got, you know, our auditors, as we saw with
all this information that we've been able to give you in terms
of the medical improvements and the CDRs, et cetera, is because
of our audit work, and then in terms of trying to prevent
anything as an example of, you know, Puerto Rico or any places
where there's a systemic attack against SSA, our investigators
are there doing whatever they can.
But I've got to tell you, our resources are very limited.
Over the last few years we've had about a 10 percent reduction
in staff, simply because we've stayed at level funding on it.
As every cost goes up, 90 percent of my costs are really just
on salary and, you know, and office, brick and mortar. So all I
can do really is just keep subtracting staff in order to make
our bills.
So, anyway, when you're asking what you can do to help us
is, one of those things is for us to be able to get a set
budget where we can, you know, be able to at least go back up
to our allotment of investigators and auditors to be able to
look into stuff like this.
Ms. Duckworth. Ms. LaCanfora, you wanted to say something.
Ms. LaCanfora. I just want to take a very quick opportunity
to attempt also to answer the question about what you can do
for us, because I think it's twofold. One is adequate and
sustained funding, not just the program integrity funding to do
the CDRs, but adequate and sustained funding for the entire
administrative budget. We have been operating for the past 3
years a billion dollars below the President's budget request.
Since 2010 we have lost 12,000 employees across the Social
Security Administration, making it increasingly difficult for
us to just do the basic work that we're tasked to do, let alone
trying to solve some of the more systemic problems.
And number two, I would just like to encourage the
committee to continue highlighting the issues you've been
highlighting because I can speak from a policy standpoint, we
have a lot of irons in the fire, so to speak, we have a lot of
areas in the policy realm where we're looking to improve upon
current processes, and we can talk about some of those. But I
think it's, you know, to the credit of the committee that
you've prompted us to continue to think about these things and
work hard to, you know, fill gaps where they exist.
Ms. Speier. What about the appeal of a decision by the ALJ?
The only appeal right now is an automatic appeal if it's
denied. What happens--on the one hand Mr. Bede says, well, the
ALJ is representing the taxpayer and the injured worker or the
injured individual, but I don't think you can represent both
sides adequately, frankly. I think that's a mischaracterization
of what an ALJ can really do. So there is no appeal process.
The question is, should there be on behalf of the taxpayer?
Mr. Sklar. So just to clarify, with the new Division of
Quality we do look at roughly five to seven thousand unappealed
fully favorable cases each year, and that's new, and that adds
some balance. We were looking at hundreds of thousands of
denials. They were appeals from people who lost. But on the
cases that were paid, nobody was looking at those cases in any
systematic way in a large number.
So now we're doing that. It's a statistically valid sample
that can help us drive policy changes. We also feed back the
data to the individual judges. But to be clear, it's still only
five to seven thousand cases when we're running an operation
that's moving 800,000 cases annually. So----
Ms. Speier. And just by doing that doesn't mean that that
individual doesn't get the benefits either.
Mr. Sklar. Well, actually, sometimes their lawyers are very
upset because, yes, you would, indeed, intercept the benefits
in those live cases.
Ms. Speier. You do?
Mr. Sklar. Yes. So that authority exists, but we're only
funded to do a certain number of these items or we can only
afford to do a certain number of these cases.
Ms. Speier. So of the five to seven thousand cases that you
have intercepted, so to speak, how many of them were the
benefits actually not provided in the end?
Mr. Sklar. I can supply that for the record for sure. We
have that data.
Mr. Lankford. Okay. Can I ask how you picked that five to
seven thousand? Was it just a random sampling or were you
targeting certain----
Mr. Sklar. So that's a really good question, because under
a 1998 regulation we are not allowed to target, we are not
allowed to target judges, we are not allowed to target hearing
offices.
Mr. Lankford. So let me review. Huntington, West Virginia,
when that's happening and you see these very high numbers,
you're not allowed to go back in, in targeted review on that?
Mr. Sklar. That's exactly right, not on live cases.
Mr. Lankford. We've got to fix that.
Mr. Sklar. And to be clear, we did sample some of those
cases, but it was a relatively small sample, and they began to
ask the right questions. If they were looking at dozens of
these cases, I'm pretty confident they would have gotten to the
right place.
Ms. Speier. So your hands are actually tied?
Mr. Sklar. To a certain extent. I just want to be
abundantly clear, though, we can look at closed cases anytime
we want, but then the money's gone. So you can look at closed
cases for any reason, you can target cases where a judge has
paid at exorbitantly high levels, low levels, where they have
put out huge numbers of dispositions, tiny numbers of
dispositions, you can target for any number of factors, but you
cannot do it on live cases pursuant to a regulation that's been
in place since the late 1990s.
Ms. Speier. To that point, if you're doing all this data
collection now that's much more sophisticated and you can see
trends, then to not be able then to drill down is
counterintuitive.
Mr. Sklar. I just want to be precise, though. We can drill
down on cases where the money has gone out the door, closed
cases. We cannot drill down on live cases before the money goes
out.
Mr. Lankford. Well, what about targeted reviews of an ALJ
or of a group of ALJs or questions on that? What can be done on
that and what is being done on that?
Mr. Sklar. We do do focused reviews. Again, they're on
closed cases where the money has gone out the door already, but
that is helpful at times, you can see what's happening. And we
will typically feed that back to the line managers if there's a
problem, and they will have those conversations.
Mr. Lankford. And is there a way to be able to discipline a
judge or to be able to confront them and say this is it? Or it
has the appearance at least of several years ago that when
judges were high producing, they were sent more cases. They
would seem to affirm them to say, okay, you're reversing a lot
of cases, you're dealing with a lot of cases, let's send you
more. That's not true anymore, it appears?
Mr. Sklar. Correct.
Mr. Lankford. And grateful for that. But how do we handle
this as far as when we see there is an issue, some sort of
discipline so that there is the accountability that's built
into it?
Mr. Sklar. Yeah. First, we're going to try with voluntary
compliance, we are going to give them a chance to get better,
and most do, and most are very agreeable. They're surprised.
They've been doing this for 20 years and nobody has given them
feedback. So we're happy to give them that feedback. We
actually set up a tool called How Am I Doing? It's an
electronic tool. They can actually look at their remands coming
back. So we think that is helping to change behavior.
But in instances where folks refuse to comply, and
occasionally you'll actually have an ALJ who says, I refuse to
follow the policy, then you're into a whole nother realm. And
there are procedures for conduct and performance violations,
and we do use those procedures.
Mr. Lankford. How often?
Mr. Sklar. They do take a long time.
Mr. Lankford. How often?
Mr. Sklar. In my written testimony I've talked about 20
cases where a judge has either been terminated or left
voluntarily.
Mr. Lankford. We mentioned before as well that the CDR
review, in going through the process of that, there's a term
that I discovered I was not familiar with, but the more that I
read and the more people I talked to in different parts of the
country in DDS offices and such I heard this term for CDRs that
was used behind the scenes of, not then, not now. I don't know
if you've heard that before, but it's the perception of they
weren't disabled before, they're still not disabled now, but
there's nothing we can do about it because we can't show that
they've had medical improvement because they really shouldn't
have been disabled in the first place, and now we're stuck.
It seems that there's a standard to get on disability that
they can't have any involvement in any vocation in the United
States right now, that they can't significantly function in our
economy. If they somehow get past that, then there's a
different standard, if they have medical improvement or not. Am
I reading that correctly, that once you're in it, it's medical
improvement, not whether you can engage in the economy, but
going into it there's a standard that you have to be able to
engage in the economy?
Ms. LaCanfora. You have summarized that pretty well. And so
this is one of the issues that we're looking at really closely,
because the law does require that a person show medical
improvement in order for us to terminate benefits. There is,
though, one exception to that, the exception that Mr. O'Carroll
mentioned----
Mr. Lankford. Right, fraud.
Ms. LaCanfora. --if it's clearly fraud. But in addition to
that there's what we call the error exception, which is if we
believe that an error was made initially, not necessarily
fraudulent behavior, but it was just a bad decision, we do have
the legal authority to go back and revisit that decision and
terminate benefits.
Now, what you're hearing when you go around the country is
the fact that adjudicators are not really doing that often.
Mr. Lankford. Right.
Ms. LaCanfora. It's a very infrequently used provision. And
what we're doing now is we're taking a sample of cases and
we're doing a comprehensive review to try to understand why
it's not being used. Is it a training issue? Is it a clarity of
policy issue? Do we need to amend the regulations so that they
give more teeth, let's say, to the process?
We're not entirely sure how to make better use of that
error exception, but we think we do need to do that. So the
comprehensive case review we have underway now will help us
to--help to inform our next steps in terms of whether we need
to go the rulemaking process, the training route, or a
combination of those.
Mr. Lankford. But you have the authority right now to do
that as far as the error possibility, to say we believe there
was an error made in a previous case. You already have that
authority? That's not something you need from us?
Ms. LaCanfora. We do, but understand that it's quite
complicated, and we can't, for example, substitute judgments,
okay? The regulations are very clear on that. So you can't say,
oh, gee, I just think Judge Bede did a bad job and I'm going to
substitute my judgment for his. So one of the reasons I think
that adjudicators are reluctant to use it is because it's a
very complicated rubric that you have to go through in order to
use the error exception.
Ms. Speier. So what would you recommend then?
Ms. LaCanfora. So, again, we're doing a comprehensive case
review because we want to look at real cases and figure out
where we should have used this exception, why we didn't, and
then we're going to move toward probably a multipronged
approach, but we may need to amend our regulations to make them
more clear so that adjudicators can use them more readily.
Ms. Speier. I guess what I'm asking, though, it sounds like
the error exception is not being used. You're going to review
that and see why it's not being used. But the truth is it's not
being used. So if that's the case, then we need to provide you
with a tool that allows you to more simply and easily address
cases where they should never have received the benefit in the
first place.
Ms. LaCanfora. I'm not saying that at this point we need
legislative change. I think we may be able to make better use
of the error exception through our regulatory process.
Ms. Speier. Okay.
Mr. Sklar. If I could bring a little bit of light on
something we're trying to do at both the DDS level and at the
hearings level, we are trying to get our adjudicators to better
rationalize, memorialize, and explain why they allowed
somebody, and that's really, really important, because without
a really good rationale it becomes almost impossible when a CDR
comes up to take that person off the rolls if, indeed, they've
shown medical improvement, because you're going against
nothing. You have to show medical improvement from a certain
baseline.
So we've done a couple things in this regard. We've
introduced an electronic tool, the Electronic Case Analysis
Tool, at the DDS level, the State agency level, where they
actually have to memorialize and rationalize their decisions.
And quite frankly I think it's been exceptionally helpful both
in the CDR realm and even more helpful for the judges, because
now the judges know why the case was denied at the lower level.
So if you ask me, one of the reasons why the allowance rate
is going down at the hearings level, I think they're actually
looking at why the DDS denied the case. There's now a rationale
and pretty thoughtfully done. We're actually trying to get the
judges a similar type of tool, an Electronic Bench Book, so
that they have a policy-compliant electronic tool to
rationalize, memorialize their case as well. Of course they
have decision writers, but we think it's really nice if they
can get some of the work and some of the policy-compliant
instructions to the writers in this tool.
Ms. Speier. In the West Virginia case, without, you know,
harming the actual case itself, was the bench in that West
Virginia city, Huntington, I guess it is, did any of them come
forward? I mean, do judges know about the work of other judges?
Mr. O'Carroll. That's a tough one that I've got to be
really cautious on because it's an open investigation. So I
can't really talk in terms of the witnesses on it. But I've got
to say, there was a culture in that office that became pretty
apparent in terms of a number of, you know, people in it raised
concerns over time, and a lot of alarm bells, you know, had
gone off and just weren't addressed.
Ms. Speier. So why didn't any of them become
whistleblowers? Or, I mean, is there a bounty hunting
opportunity for people that come forward in a situation like
that? I mean, it sounds like there were people that recognized
there was a problem, and then the management declined. And
those are my words, not yours, so I'm not putting them in your
mouth. I'm a big believer in allowing whistleblowers protection
and compensation when they come forward.
Mr. O'Carroll. We agree completely on that. In fact, one of
my jobs as the Inspector General is, is the protection of
whistleblowers, to encourage them to come forward, to protect
them after they do come forward, and if there is any form of
retaliation to, you know, to prosecute management for doing it.
So, yes, we send a signal out there, you know, for
whistleblowers to come forward, we will protect them, and there
has been examples of it. You know, as becomes apparent with any
of these situations on it is, is that in retrospect when you're
looking back on it, you're seeing a lot of, you know, signals
that should have been addressed where people came forward with
issues. I've got to say when we look back on it, they're not
always--even though you're a whistleblower and you're
complaining, it may not be as specific as we want it. And what
we found is a lot of times there's interoffice issues that are
going on with their time and attendance and it's not
necessarily fraud or some issue like that. So that's where they
get overlooked. And that's why we're trying now to, you know,
to, one, send the signal out there, is if there is an issue on
it, bring it forward, and we will investigate it.
Mr. Sklar. Just one quick comment, too. My personal
opinion, the best line of defense is your front line, and we've
really spent an inordinate amount of time trying to reaffirm
the need to speak up. And having spent 8 years in the Inspector
General's office before taking this job, I've really been very
active in that regard, and we've seen our referrals to Mr.
O'Carroll's office shoot up quite, quite dramatically.
So I do think a lot of it is messaging. I do think a lot of
it is making it safe for your employees to come forward, they
feel like they won't get in trouble, they won't get second
guessed. And we have really put a premium on making sure that
if any hint of retaliation or reprisal, that's not okay.
Ms. Speier. Are they eligible for the award system that
exists in the Federal Government when you call attention to a
cost or a savings?
Mr. O'Carroll. Yes, they are.
Mr. Lankford. Let me ask Mr. Sklar something that's not
politically challenging or difficult, let's do something simple
like revising the grid.
So the grid, my understanding was, several years ago tried
to go through revision, and Members of Congress and multiple
outside special interest groups screamed so loud about it that
the whole thing was scuttled. And we're still stuck with a grid
from the 1970s where it talks about elevator operators and such
as, you know, meaningful jobs that are out there, and more
sedentary jobs like computers that is the top area for the jobs
now are not listed on there because it just wasn't a major job
during that time period. Age issues, everything else becomes a
big issue. How do we do this? We talked about it a little bit
before about getting a study on this and getting going. How do
we get this fixed?
Ms. LaCanfora. Okay. So a great question and a fair
characterization of the situation. We have two separate work
efforts related underway. One is that we are updating right now
the Dictionary of Occupational Titles, which is that book with
the 12,000 jobs in it that you referenced. It hasn't been
updated for decades. We have a contract right now with the
Bureau of Labor Statistics, an interagency agreement, and we
have a great relationship with them. It's been in place since
2010. We've already done three phases of data collection out
across the country using field economists that go into real
businesses and collect data about how jobs are done across the
country. That process is moving along. It's a multi year
initiative because it's very complicated.
Mr. Lankford. Right.
Ms. LaCanfora. The book that we end up with has to be
legally defensible.
Mr. Lankford. Done when? When's your target date for
completion?
Ms. LaCanfora. 2016 is our hope.
Mr. Lankford. Just in time for a new President to scuttle
it, but that's a whole different issue.
Ms. LaCanfora. But understand, for the undertaking the
timeframe is very quick.
Mr. Lankford. It's huge.
Ms. LaCanfora. It really is, and that's a target.
Mr. Lankford. But then it has still got to go through all
the rulemaking and all the fight and everything else or you're
seeing it complete by then?
Ms. LaCanfora. We are hoping for something usable. It might
be a phased rollout, a phased implementation. But we are not
even sure we are going to need to modify regulations. I mean, I
can't make any promises, but we're trying to update it in a way
that it doesn't require dramatic redesign of program rules.
Mr. Lankford. Okay, so that's one aspect of the employment
side, but we've still got age, we've still got everything else.
Ms. LaCanfora. Okay. So the other stuff, which really falls
into the category of the grid, okay, which is, you know, I look
at it as a chart that you use where you incorporate the factors
that we're statutorily required to consider--age, education,
residual functional capacity, which is the ability to do work.
We take those factors into consideration, and the interplay of
those factors are considered. And then we basically use this
grid or this chart to determine, then, what your finding of
disability is, disabled or not.
And you're right that we haven't updated that in a long
time. Right now we're taking a very careful look at that
because the reason we were unsuccessful in the past is because
the changes that we made were not evidence based. And that's
what we learned from that experience, that in order to make a
change to the disability programs which are going to have
rippling effects for millions of people's lives and potentially
have, you know, billions of dollars of implications one way or
another, it's got to be evidence based, it's got to be sound.
So what we're doing now is we're revisiting the grid issue
and working with the Disability Research Consortium, and this
is a group of highly skilled economists around the country that
are working with us to look at those factors that we have to
statutorily consider--age, education, work experience--and how
other disability systems use those factors in the government
and outside of the government, and they're going to give us
some sort of an environmental scan and some advice on how we
might want to change our rules. So by getting that evidence
base or that research base beneath us, we think we will be in
much better position to make sound changes in the grid rules.
Mr. Lankford. And what's your timing on that part of it?
Ms. LaCanfora. The Disability Research Consortium work
should be finished in the middle of fiscal year 2014, July,
June or July of fiscal year 2014, and then depending on what
they come back with we will be shaping our next steps.
Mr. Lankford. So we're talking about the middle of next
year we'll have some sort of proposal that's out there, and
then it's a matter of a couple years to get it out or you've
got data in from them by middle of next year and then it's to
start putting the proposal together?
Ms. LaCanfora. So we have data, but we are simultaneously--
you know, we know where the vulnerabilities are, so we're
trying to simultaneously work with the Disability Research
Consortium and in house to be prepared to do what I think will
end up being rulemaking, hopefully in fiscal year 2014.
Mr. Lankford. Under 18 and over 18 at the same time or just
all adult focused?
Ms. LaCanfora. We're right now focused on adults.
Mr. Lankford. Okay.
Ms. Speier. Can we talk about the under 18 group, because
I've never seen them actually defined that way before. And I
would just like to understand it better. Why are persons under
the age of 18 eligible for disability benefits when they
probably haven't worked 40 quarters for starters, right?
Ms. LaCanfora. So we're talking about the two different
programs that you mentioned in some of the opening remarks. The
Social Security Disability Insurance program is the insurance
program for those people who have worked and earned sufficient
quarters of coverage to get benefits. The program under which
disabled children become entitled is the SSI or the
Supplemental Security Income program, which is a needs-based
program for disabled children and doesn't require any work
having been done.
Ms. Speier. Are there any problems in that program?
Mr. Lankford. Yes.
Ms. LaCanfora. Well, let me just say, we think that there's
always room for improvement for sure. And we have a partnership
right now with the Institute of Medicine, and they're looking
very carefully at our childhood disability program. We actually
have a consensus committee that they have put together with
medical experts that are going to help us take a really close
look at the SSI childhood program and identify ways for
improvement.
Ms. Speier. Mr. O'Carroll?
Mr. O'Carroll. Yeah, one of the things, in fact I was
thinking about it before when we were talking about
overpayments and I was talking about the overpayment being in
the 1 percent range, that was in relation to the disability
side of SSA. In relation to the SSI side, just as the chairman
just echoed, in terms of the issues with SSI are much higher.
That's in about the 6 percent range on it. And a lot of that's
because it's self-reported income on the people that are
benefits for it.
As Ms. LaCanfora just explained is, is that it's a needs-
based program, and a lot of times, you know, it's based on what
a person says what their income is, is whether or not they're
eligible for the program. And what we're finding now along
those lines is, and I applaud SSA for doing it, is there's a
lot of electronic financial information out there that can be
used to run people against to see when they're claiming that
they're indigent to see if they do have resources. And SSA has
been making great strides in terms of using financial
intelligence to be able to identify people on it. But the SSI
program does have a much higher overpayment rate.
Ms. Speier. But for the disabled children, is there----
Mr. O'Carroll. And the children part of it is, is one of
those, because what happens with the children is oftentimes
with children they do improve, you know, in terms of their own
medical information on it. And we're asking SSA to do more
continue or redeterminations on children. And then again at age
18, that's before they get into the adult portion of it,
they're mandated to be doing redeterminations on those to
decide before they become an adult whether they're going to be
on the benefits for the rest of their life, and that's an
important one, and that's oftentimes neglected.
Mr. Lankford. This is my big issue with when we have
anything that smacks towards an error or fraud in SSI. We have
a child 10, 11 years old that is labeled as disabled. If the
redetermination process doesn't go well, they carry over into
adulthood, all the potential of that kid is sapped away. They
are told from when they're 10 years old, you are disabled, you
cannot, and are set aside.
I ran into a young man about 2 years ago in his early
twenties that had Social Security questions for me, and I asked
him why he's asking me that. It was very unusual for someone in
their twenties to ask me about Social Security, and I just
asked him flat out if he was on SSDI. And he hesitated and said
yes. And I said, may I ask what for? Because I had this great
conversation, we're in this large event, he had been
socializing with those people, and he said, well, I'm ADHD.
And my first thought was, and I said to him, we need to
help you get a job, because we're losing you. We're losing all
that you could produce and all that you could do.
So the questions that I have on this is when I went and
pulled the under 18 numbers, and I see the rise in two
different areas, number one being ADHD, number two being speech
language pathology and speech language delay as far as the top
two reasons that are rising for those, both of those, there are
a lot of issues and questions about how long. For instance,
ADHD, is that they qualify without medication or they qualify
with? Because if someone has medication on it and they meet
these different markers without, but they go on medication,
obviously often they're very functional in a social environment
and are very engaged, but if they're off that medication
they're not. Do we know how that is done?
Ms. Speier. Mr. Chairman, I have personal experience with
ADHD with a child, and I think that this would be ripe for a
hearing on just looking at children under the age of 18 who are
eligible for SSI because of ADHD. And let's really drill down
on this. I'm stunned to hear this, really stunned.
Mr. Lankford. Can you give us just an answer whether it's
before or after medication for that?
Ms. LaCanfora. Sure. So we require that anybody, whether
it's ADHD or any other course, so any other disabling
impairment, that the individual comply with the course of
treatment that the physician is prescribing. If they are not
complying with a course of treatment and therefore the
condition is deteriorating, then that's grounds for us to deny
the claim.
I would also add----
Mr. Lankford. But I'm saying do they meet the standard and
the criteria that's being set after medication or before
medication?
Ms. LaCanfora. After compliance with the course of
treatment.
Ms. Speier. So sometimes it's behavioral, sometimes it's
pharmaceutical drugs that are prescribed.
Judge Bede. In these cases there's also the issue of
obviously SSI people are low income, and there may be no
treatment because there's none available to the child.
Ms. Speier. Well, there should be now under the Affordable
Care Act.
Judge Bede. Yes, under the Affordable Care Act there is
now. But in the past they would be put on benefits and would
then be entitled to Medicaid. They would get treatment, and
they would improve, and leave the rolls.
Mr. Lankford. Then what?
Judge Bede. They would lose their medical care and would
deteriorate. And we would see that on not a lot, but we would
see that occasionally.
Mr. Lankford. Same thing for speech delay, because when you
get into speech delay or articulation issues, that becomes a
socialization issue on it. But to have a child that has a
difficult time with articulation or a delay in articulation,
that's a completely different issue. To see the rise of the
speech--now, language is a different issue, that's mental
processing, but the speech side was very surprising to me.
Judge Bede. And it also very often responds to speech
therapy.
But personally I have not seen a lot of those cases. I take
your word that if they show up in the statistics. And I don't
know whether that's been allowed at the State agency level or
at the hearing level, but I have not noticed a significant
problem with allowing children with developmental delays.
Ms. Speier. Mr. O'Carroll, have you looked at this issue,
and is it more prevalent in some States than others?
Mr. O'Carroll. I'll tell you, we haven't done work on it.
It's on our work plan to be looking at it. Amongst other things
there were a large, I guess, regional concern on it in, I
think, the Massachusetts, where it got a lot of media attention
and everything else within the last year. So it's on our radar
screen as--you know, as an issue to be taking a look at, but we
haven't done any work.
Ms. LaCanfora. May I just also add, I just want to
reiterate very briefly we are right now under contract with the
Institute of Medicine, the National Academies of Science. They
are the premier authority in this area, and they are looking
very specifically at the childhood program and some of these
issues. And that is under way as we speak and will be done in 1
year.
Mr. Lankford. So we're 1 year away from that one. Is that 1
year away from data or from a proposal?
Ms. LaCanfora. From their recommendations to us.
Mr. Lankford. Okay. I know we're hitting the noon hour
here, and I'm very aware of everyone's stomach and that you all
have been seated for 2 hours. I'm very aware of that and want
to be able to honor it.
What I'd like to do on it--do you have any additional
questions or comments? What I'd like to be able to do is follow
up with Mr. Sklar if we can. Maybe Mr. O'Carroll can join us on
this, we'll have to just see on the timing on it, and whoever
you'd like to invite to be able to join in.
I have a long list of all the reforms that have been laid
out and the ideas that are out there. What I'd like to do is
try to figure out what are the things that you all are already
working on? As I've already mentioned, this is already in
process. What's our time period for completion on these? What
is the legislative need that the ranking member and I need to
work on; to say where do we need to push on this, whether that
be funding, whether that be a change in the law or the statute?
What is it that is needed from you to be able to make progress
on this? And what of it is management-related, quite frankly;
to say where is it you need greater oversight or a push; to say
if there's an anomaly out there, how do we deal with that?
So if there's an obvious, you look after the fact to
Huntington, West Virginia, and to say, okay, it's obvious once
you look at it after the fact, how do we get some of those
things to ping up earlier and get some of the review process to
be able to come through?
As Mr. O'Carroll has already said, we never want it to
happen again, but we're going to have people that are going to
try to run the system on it. It did not take us but a moment to
sit down at the computer and just to type in Social Security
Disability, and what came up first was an ocean of law firms
telling you how to game the system; if you'll use this term,
this is what you need to submit into it, that becomes the first
thing that you get when you search on Social Security
Disability. You have people after you that are trying to game
the system. That is their bread and butter to do it.
We need to protect in any way that we can to help guard the
taxpayer and individuals and, most importantly in this process,
those vulnerable disabled individuals that will take a hit 2-1/
2 years from now and will have even more instability in their
life if we don't do something for this.
So I appreciate your work on it. I'd like to have some
offline conversations on some of these to see if we can't form
a list of to-dos, what we can do, what you can do; is that
fair?
Other questions or comments?
Ms. Speier. Mr. Chairman, let me just say this has been, I
think, one of our best hearings, and we can really work
together to make the system work better, and that's really our
charge to do that. And I think it's very clear that unless we
have more money to do the CDRs and to fund Mr. O'Carroll's
operation, we're not going to succeed.
So it's really important for us to do the responsible thing
here, and I will work hand in glove with you to make it
accountable, but also to give them the resources so they can
make sure the right people are getting these benefits.
Thank you.
Mr. Lankford. Thank you for your time and for being here
today. We'll follow up and continue on through the process.
This hearing is adjourned.
[Whereupon, at 12:10 p.m., the subcommittee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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