2023 Q1 NADR Newsletter

FROM THE PRESIDENT

Note from the President: Q1 2023

As usual, it’s been another busy time for NADR!

On November 9, the NADR Legislative Committee met with senior SSA staff to discuss many of the issues that are most important to our members. Please see page 4 for a summary of that meeting.

On December 15, we met with OHO staff to discuss the continued modification of the CSU. SSA previously announced they are moving the actual scheduling back to the local hearing offices, but the big update is they are ready to go live with the online submission portal in February 2023. Please watch your emails for more information as we get it.

As announced earlier, NADR and NOSSCR have been working together the last few months on several projects that will benefit representatives and claimants alike. The biggest of which is eliminating the 5-month waiting period for SSDI claims. Other joint projects are free medical records for every disability claimant (and representative) and permanent use of electronic signatures. Stay tunes for updates!

On November 1, 2022, NADR rolled out the Delayed Fees Project submission process. Getting this project going has been a yearlong process and in its first few months, it has seen a lot of success. Several fees that you have submitted have already been paid and many more are on the way to resolution. To date, we’ve submitted 358 fees that were over 9 months post approval and 194 of them have already been paid. To put it in more perspective, $1,164,518.08 has been reported and $719,189.13 has been paid to advocates. If you have fees over 9 months old and are tired of banging your head against the wall, download the submission spreadsheet from the

NADR Website and submit it to Feeissues@NADR.org.

Speaking of fees, the new fee cap is finally here! If you haven’t updated your fee agreement to reflect the new cap of $7,200, please do so now. If you are using the 1693 Fee Agreement and haven’t downloaded the newest one, you can find it here Fee Agreement for Representation before the Social Security Administration (ssa.gov)

Our next in person event is the NADR Annual Law Conference in Denver, CO April 2-5, 2023. In the meantime, take advantage of our other monthly educational opportunities between NADR Connect, NADR Mastermind and our Webinar Series.

Here’s to a happy New Year and I look forward to seeing everyone in Denver!

Michael Wener, ADR NADR President

NEWS FROM NADR/SSA MEETINGS

I. Scheduling of Hearings to return to Local OHO’s!

On 11/9/22 the NADR Legislative Committee met with several SSA officials, who told us that SSA is planning to return scheduling to local hearings offices and eventually phase out the Regional Centralized Scheduling Centers. No exact time for the change was given, but testing of systems and procedures is underway. The RCSC’s will continue to enhance communication among regions. A National Hearing Center system will allow for centralized submissions of availability by reps.

II. File Exhibiting Problems Addressed:

On 11/9/22 the NADR Legislative Committee addressed the problem of late exhibited files and unexhibited files (and poorly exhibited files) with SSA officials. The response was that they are aware of the problems and are working to fix them. Returning to in person hearings has created a backlog of files that need re-exhibited, and it will get better. Meanwhile, if you need to refer to evidence that is not yet exhibited, (e.g. – Pre-Hearing Brief), you can refer to it by name, rather than exhibit number. Upon NADR’s questioning, officials pointed out that reps can petition to withdraw from cases if new evidence shows up that changes your relationship with the claimant or situation.

III. DDS backlogs and wait times. Payment Center phone response.

In a recent meeting with SSA officials, NADR raised the issue of increasingly long adjudication times for Initial Claim and Reconsideration decisions. SSA acknowledged the problems and spoke of staffing shortages. A large number of employees left the State agencies before, during and since the pandemic. The process for DDS is to work on “oldest cases first”, which causes newer cases to subsequently age as well. They are using Program Integrity funds to focus on CDR’s. SSA says that Fiscal Year 2023 hiring will focus on “front line” employees, (which includes state Disability Examiners) but training and mentoring is a lengthy process. In a subsequent briefing, SSA reported they are asking the Administration and Congress for a $1.4 billion increase in FY ’23 funding, above ’22 funding, for staffing increases and other items necessary to address these problems. NADR will be asking the membership to urge their elected officials in Congress to support raising SSA funding. Without more funds, delays and declines in service will get worse.

Among the problems that need to be addressed is getting through to -- and getting responses from -- Program Service Centers about delays in adjudication and payment. A temporary measure to move some PC staff to answering Teleservice (800#) calls, resulted in delays and backlogs in normal PC operations. Even after many adjudicators return to normal operations, backlogs remain. SSA is aware of and working on the problem. Again, staffing (thus funding) increases are required.

IT upgrades are also a component of the phone call problems. Both PC’s and FO’s are using 15 – 20 year old platforms and systems, and a large part of IT upgrades intended to address these problems is a planned transition to newer, more efficient systems. Meanwhile, claimants and reps should avoid calling early in the day and early in the week, when call volumes peak.

NEWS FROM NADR/SSA MEETINGS

IV. Return to In Person Service

The NADR Legislative Committee asked officials of SSA’s Operations office about service delivery to claimants and representatives. SSA says that the pandemic caused a huge shift in service delivery methods. Initial claims went from 50% online and phone to 97% online and phone during Covid changes, with numbers continuing at higher than pre-pandemic levels even after in-office service has been resuming. Upon questioning, SSA acknowledged that they are working to increase in-person service and improve phone service. They have also introduced a “Quick Service” process in FO’s, to move fast interviews through more efficiently.

V. Don’t Forget Fee Increases

NADR Legislative Committee and SSA OHO officers met to discuss current and upcoming changes and reminders. The SSA-1693 will be updated on 11/30/22 to reflect the new $7,200 max fee cap. Officials urge reps who use their own fee agreements to make sure the new cap is expressed in the agreement, and point out that correct wording of the “escalator clause” will help prevent problems in the meantime. Review the language on the 1693 to make sure your agreements work to your maximum advantage. Officials also point out that the max fee petition limit, (the limit local officials can approve at fee petition) is increasing from $10K to $12K in December. Maybe consider (the limit fee authorizers at the initial, Recon and local ALJ levels can approve at fee petition).

VI. Goodbye D.O.T.

SSA confirms that it continues to work with the Bureau of Labor Statistics toward refining and implementing the new ORS (Occupational Requirements Survey) system to eventually replace the Dictionary of Occupational Titles. NADR has maintained an ORS task force for several years on this transformative endeavor, and has met often with both SSA and BLS officials for input and updates. Progress continues, and SSA hopes for a phase of implementation “within a year”. The NADR task force will stand ready to comment on any proposed regulatory changes through the Notice of Proposed Rule Making process.

VII. New Technology at SSA

Aside from improvements to phone systems, SSA officials tout progress on several technological improvement areas.

E-sig systems should be ready to test or begin implementing “within a few months”. More universal implementation of the electronic signature process depends on building the systems changes needed to implement them.

Online SSI claims are in the “discovery” phase, including ways to streamline the application. The goal is to have some form of SSI application available within a year. Meanwhile, DON’T FORGET THE NEW electronic protective filing procedure. This can be a critical tool to use in protecting the interests of your clients. More information and the tool can be found HERE.

NEWS FROM NADR/SSA MEETINGS

Online CDR’s. Systems changes are underway to convert the Continuing Disability Review process to a fully online procedure. Design and testing continue and SSA officials tell NADR’s Legislative Committee that implementation is hoped for soon. The paper form SSA-454 is also being changed and proposals will be announced shortly.

Entities for direct fee payment/Entities as reps.

SSA is working on systems changes to allow direct pay to entities, as opposed to individual employees of the entity, when desired and properly requested. After systems are built and tested, a NPRM will be issued to implement the process. NADR’s Legislative Committee stands ready to comment on any NPRM put forward.

Closely related, but different, is the issue of allowing an entity to represent claimants, rather than individuals. SSA officials point out that this change is also under consideration, but is different from payment to entities, and would come later than the change in payment policy.

VIII. Listing Changes

NADR has already submitted comments on the NPRM to change cardiac listings. Primarily, our concerns center on SSA’s use of data and literature that was more than ten years old when considering their changes. Changes in medical procedures have increased exponentially during that time period, including fewer and shorter inpatient hospitalizations. We will keep you advised of any changes to or implementation of the new regulations.

Meanwhile, in a meeting with SSA officials, NADR’s LC was advised that Digestive and Skin Disorder Listings are in line for updates soon, and NPRM’s will be forthcoming.

NADR ANNUAL CONFERENCE

Have you ever had a client who was a loose cannon at a hearing? One lawyer did and it resulted in an inquiry letter from OGC. The client told the lawyer during hearing prep that he didn’t like having to answer the same questions over and over for Social Security. “Why in the F*** couldn’t they just have something where I could click something if there were no changes in who the doctors were, past work etc?”

He told the attorney he would refuse to answer any questions for the judge if he had already provided the answers.

At the hearing the judge asked him to state his social security number and he had his first tantrum telling the judge he already knew it because it was on the notice of hearing he received.

The judge then asked about past work and he said, “What kind of f****** idiot are you? I have filled out six different forms with that information and it is the same every time. This is bull*** if you are unable to read what I have already filled out.”

The attorney interjected and asked if there had been any change in his work since the claim was filed, and he said no.

The judge then asked him what doctors he was seeing, and all hell broke loose. He let the judge know he was a “f****** a****** for wasting his time, the lawyer’s time and the expert’s time by asking stupid questions…” that he already had the answers too. He made a couple of threats about how the judge didn’t deserve to be paid because of his incompetence.

The judge ended the hearing and issued a show cause for why he should hold a supplemental hearing. The lawyer filed an answer citing the claimant’s mental problems. The judge denied the claim and filed a complaint against the lawyer.

In my response, I wrote that this attorney had never experienced a claimant such as this one previously.

He has now changed his procedures for claimants who may be difficult. He will include a statement in his pre-hearing memo about the problems his

client is having. Whenever possible he will get a statement from the attending physician about why his client is having these problems. If any answers such as this occur at the hearing he will interrupt and try to calm the client down by asking a question such as, “Are you still seeing all of the doctors you put on the form? You aren’t seeing any others, are you?” I assured the OGC attorney that my client would be prepared in the future.

Are you prepared should your client have an outburst? Have you warned them never to have one? Getting your client ready to respond to the AU should begin early in your representation. When they ramble, remind them to start practicing for their hearing by giving short answers. When they are angry, remind them to practice for the hearing by being calm. That case should have been an easy win if the client was properly prepared.

James Mitchell Brown has represented almost 100 representatives when they receive complaints from the Office of General Counsel. He can be reached at jim@attorneyconsultant.com.

Committee Chairpersons present bills to the full chamber for a vote

Congressional Committees

To manage the volume and complexity, the House and the Senate divides its work between standing committees, special or select committees, and joint committees. These committees are further divided into subcommittees. Of all the measures sent to committees, only a small percentage are considered.

The Committees Structure

The US Congress is made up of two chambers:

The House of Representatives The Senate

Members of the House of Reps. can submit bills to Committees for review.

Committee Chairpersons present bills to the full chamber for a vote

Members of the Senate can submit bills to Committees for review.

conference committees

House and the Senate need to reconcile different versions of the same bill

The Congress

Standing

Sub-Committees

The path of a bill to become law is through committee

Most House and Senate committees also establish subcommittees –subpanels of the full committee where members can further focus on specific elements of the policy area

Bills begin and end their lives in COMMITTEES, whether they are passed into law or not. Hearings from interest groups and agency bureaucrats are held at the committee and subcommittee level, and committee members play key roles in floor debate about the bills that they foster.

The extent to which subcommittees play a formal role in policymaking – for example, by holding hearings or marking-up legislation prior to full committee consideration – varies by chamber and by committee tradition and practice. Whatever role a full committee allows its subcommittees to play, subcommittees cannot report legislation to the chamber; only full committees may do so.

House of Representatives Committees & SSA

The House of Representatives has two committees that regulate the SSA

Ways and Means

Appropriations the chief tax-writing committee in the House of Representatives

responsible for funding the federal government’s vital activities to keep the United States safe, strong, and moving forward

Subcommittee (6) –Social Security Subcommittee (12) – Labor, Health & Human Services, Education & Related Agencies

committee consideration – varies by chamber and by committee tradition and practice. Whatever role a full committee allows its subcommittees to play, subcommittees cannot report legislation to the chamber; only full committees may do so.

House of Representatives Committees & SSA

The House of Representatives has two committees that regulate the SSA

Ways and Means Appropriations

the chief tax-writing committee in the House of Representatives

Subcommittee (6) –Social Security

responsible for funding the federal government’s vital activities to keep the United States safe, strong, and moving forward

Subcommittee (12) – Labor, Health & Human Services, Education & Related Agencies

Jurisdiction (3 departments & 15 Related Agencies) – Social Security Administration

The Senate Committees & SSA

The Senate has two committees that regulate the SSA

Finance

concerns itself with matters relating to: taxation and other revenue measures generally, and those relating to the insular possessions and other health and human services programs financed by a specific tax or trust fund; and national social security

Subcommittee

(6) – Social Security, Pensions, & Family Policy

Jurisdiction (3 departments & 15 Related Agencies) – Social Security Administration

The Senate Committees & SSA

The Senate has two committees that regulate the SSA

Finance

Subcommittee (6) – Social Security, Pensions, & Family Policy

Appropriations

its role is defined by the U.S. Constitution, which requires "appropriations made by law" prior to the expenditure of any money from the Treasury

Subcommittee

(12) – Labor, Health & Human Services, Education, & Related Agencies

Jurisdictions (148) – Social Security Administration

concerns itself with matters relating to: taxation and other revenue measures generally, and those relating to the insular possessions and other health and human services programs financed by a specific tax or trust fund; and national social security SOURCES: https://www.usa.gov/

Current Titles

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