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On Oct. 29, 2007, Michael Astrue, the commissioner of the Social Security Administration (SSA), proposed drastically changing the procedural rules for the administrative adjudication of claims for Social Security benefits. 72 Fed. Reg. 61218, et seq. The summary states, “We expect these rules will make the hearings process more efficient and help us reduce the hearings backlog, which has reached historic proportions, thereby benefiting all individuals requesting a hearing.” But an examination of the proposed rules clearly shows that, even by the SSA’s own analysis, the exact opposite is true. The vast majority of cases heard by Social Security administrative law judges (ALJs) involve claims that individuals are disabled within the meaning of the Social Security Act and regulations, so as to be eligible for Social Security Disability Insurance benefits or Supplemental Security Income (SSI). The October notice of proposed rule-making (NPRM) does not purport to change the SSA’s substantive standards for determining disability in any way. So, if the proposed procedural “reforms” would lead to more efficient, speedier adjudications using the current substantive standards, one would expect a short-term increase in benefits paid, as claims move more quickly through the system, after which benefits would level off (subject to other demographic factors, such as the aging of us baby boomers). The NPRM, however, predicts that the new procedures will save the SSA more than $1.5 billion in benefits during the next 10 years. These are not projected savings in administrative costs � which the SSA might legitimately hope to realize from a more efficient process � but rather savings obtained by denying benefits. The SSA does not assert that the current rules somehow result in nondisabled people being wrongfully awarded disability benefits. Rather, by making the administrative hearings and appeals process more difficult, the SSA apparently intends to deny disability benefits to a significant number of disabled people. This may make budgetary sense, but it is hardly sound public policy for operating a social safety net for the most vulnerable members of our society. The NPRM is too complex to detail here, and, to be fair, is not all bad. One bright spot is a proposal to increase the notice of hearings from 20 to 75 days. But the NPRM would allow the SSA, among other things, to ignore probative evidence; require even unrepresented claimants to explain why the decisions they are appealing from are wrong (which is a very complex task even for a lawyer, and could lead to the SSA once again trying to preclude claimants from raising valid issues on appeal); require claimants to file multiple and repetitive claims with the possibility that many would lose their insured status during the process; and charge claimants an as yet undetermined fee for a copy of their own records on administrative appeal. Given the draconian nature of these proposals, it is hardly surprising that they have drawn criticism from many quarters. Multiple ranking members of the House of Representatives, including Michael McNulty, D-N.Y., the chairman of the Social Security subcommittee of the House Ways and Means Committee, sent a letter to Astrue on Dec. 20, describing the proposal as “a substantial and unwarranted reduction of appeal rights for those applying for Social Security and [SSI] benefits, and the Medicare and Medicaid benefits that accompany these programs.” The National Senior Citizens Law Center’s comment concludes that “the proposals would create unnecessary hardship and deprivation for thousands of claimants with documented disabilities, the very individuals the statute was designed to protect.” Similar sentiments have been expressed by the National Organization of Social Security Claimants’ Representatives and hundreds of other groups and individuals. Much of the current delay within the SSA’s hearings and appeals system is caused by budgetary restrictions. Last fiscal year, a corps of approximately 1,000 Social Security ALJs decided an astonishing 550,000 cases, often with less than optimal staff support. The Association of Administrative Law Judges quite reasonably proposes that the SSA needs to add 150 to 200 new ALJs. But this would require funding for new ALJs, support staff and office space. Yet, in the past five years, Congress appropriated $900 million less than the president requested in his status quo budgets for the SSA. Better procedures are needed What needs to be done? The SSA needs to abandon the October proposals; for the most part they are ill-conceived and antagonistic to the spirit, and quite likely the letter, of the Social Security Act. The SSA needs to work with all stake-holders, including the organized bar, to develop new procedures that combine efficiency with fairness. Congress needs to properly fund this critical operation. Finally, if the SSA genuinely believes that its regulatory standards for determining disability do not reflect current medical and vocational knowledge, it should go through Administrative Procedure Act rule-making procedures to amend those standards, rather than try the backdoor method of changing its procedural rules to deny claimants who meet its standards. On Jan, 29, Astrue took the first step in the right direction. In response to concerns expressed by the public and members of Congress, he sent a letter to McNulty announcing that he is “suspending the rulemaking process for several of the provisions that have become controversial.” Astrue has decided to “delay the issuance of a final rule” on restricting the acceptance of probative evidence of disability. Importantly, he acknowledged the difficulties that claimants often encounter in obtaining records from their medical providers. He also expressed the intention to meet with claimants’ organizations to identify provisions in the NPRM that have broad-based support. Astrue is to be congratulated for his recognition, even if belated, of the need to work cooperatively with claimants’ representatives groups to try to find ways to ease the delays in the administrative process that create such hardships for disabled people. It would be a further showing of good faith for him to formally announce the complete abandonment, not just suspension, of the most offensive aspects of the proposed rule-making. Robert E. Rains is a professor of law and the director of the Disability Law Clinic at the Pennsylvania State University Dickinson School of Law in Carlisle, Pa.

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