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permitted to withhold in-grade pay increases. Finally, examiner removal is placed in the agency's hands to be decided by a Secretary appointee.

The problem of insulating the Bureau of Hearings and Appeals (BHA) from the Social Security Administration itself has sometimes been difficult and BHA attempts at supervising the procedural and substantive aspects of ALJ performance have on occasion been resisted by them and their organizations. For example, what are the proper limits on agency attempts to control the productivity of their hearing officers? Current statistics shows a rather dramatic variation in the number of cases that individual ALJ's decide on an annual basis. The question then arises, how does the BHA deal with this situation if at all under the APA, and how might it deal with the situations if such hearing were not under the APA?

The independence of hearing examiners and their immunity from ordinary agency personnel controls has been found as inhibiting to Federal administrators in the past. Then Assistant Attorney General Robert Dixon, now a professor of law at Washington University, has recently articulated these complaints. In writing on the broad policy issues of whether the APA should govern beneficiary type hearings, Dixon noted that "due process" does not require a complete divorce from agency control. He then stated that "it is now becoming clear in any event that the APA and especially its concept of life-tenure judges substantially immune from any effective Executive control is not well adapted to the newer situations of welfare adjudication. Insofar as standards are most difficult to formulate and consistently apply in 'need' and 'disability' areas and similar situations, a virtual life-tenure low-level cadre of highly independent claims determiners reviewable only by the regular judiciary may in the ultimate sense boomerang, and be undemocratic as well as unequal and inconsistent in operation." (Views of Office of Legal Counsel on kind of hearing officers required under SSI program, memorandum October 5, 1973).

Applicability of APA to SSI cases

An interpretation by the Civil Service Commission, opposed initially but finally very reluctantly accepted by the Department of Health, Education, and Welfare, of Public Law 92-603 which instituted the SSI program declared that SSI hearings are not under the Administrative Procedure Act. The "incredible series of developments" leading to the CSC opinion, the legislative background of the 1972 provisions, and the policy and administrative ramifications of the CSC action are outlined in detail in the Committee Staff Report (pages 55-78).

On November 16, 1972, HEW requested the Commission to establish registers of qualified administrative law judges to serve as SSI hearing officers. The Office of Administrative Law Judges of the Civil Service Commission declined to do so saying that the APA did not apply to SSI. The dispute raged on for almost a year and on October 12, 1973 Secretary of Health, Education, and Welfare Weinberger appealed to the Chairman of the CSC in the strongest terms citing "a crisis *** in HEW's preparations to implement the new supplemental security income program ** *"On October 30, 1973, upon recommendation of the Commission's Deputy Executive Director, Chairman Hampton dispatched a letter to Secretary Weinberger saying the Commission was ready to establish ALJ's positions for SSI and to initiate a recruitment program. At this stage representatives of three ALJ organizations-the Conference of Administrative Law Judges, the Federal Administrative Law Judges Conference, and the ALJ Committee of the Federal Bar Association-protested the Chairman's decision and demanded a reconsideration by the full Commission and an opportunity to be heard. This hearing took place on December 3, 1973. Judge Ohlbaum of the NLRB presented representative views of those ALJ's who opposed having the APA apply to SSI. The minutes of the meeting show that:

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He said the Federal Government has two kinds of ALJs: those in the "model agencies" such as NLRB, FCC, FTC, etc., who are full APA instruments in that under APA they make decisions awarding large sums of money, radio and TM licenses, rights-of-way, etc. Then, he said, there is the "other kind"—namely the ALJs under the SSA program whose cases are vastly different from those handled in the model agencies. He said the SSA ALJs review files and rule on the record unless the claimant submits a request for a hearing. A key distinction, he said, is that under SSA, the Government is never represented. He said it was a mistake long ago when the decision was made that hearings would be presided over by ALJS and that SSI ALJ authorization would further compound the "classification

error."

Deputy Social Security Commissioner Arthur Hess was the principal spokesman for HEW and for the coverage of SSI under the APA. The minutes of the meeting summarize his views as follows:

He agreed that the law is ambivalent and that the manner of handling SSI claimant hearings is "profoundly a matter of policy." He urged the full Commission to adhere to the earlier agreement to go the APA route with ALJs presiding. To do otherwise, he said, would be to deny essential rights to claimants.

Commissioner Hess urged that full APA procedures be applied under SSI as under SSA-that the Department and the Commission should not create artificial distinctions between types of due process accorded claimants under the two programs. Sometimes a claimant will have a claim filed under both programs and separate adjudicatory processes would be administratively unsound and confusing to the claimant. Also, HEW wants SSI under APA in order to assign the entire corps of ALJs freely wherever the workload peaks. If a separate system is installed under SSI, then the SSA ALJS may not be interchangeable with the SSI hearing officers-and vice versa.

*

In summary, he urged the Commissioners to endorse HEW's determination to accord a lowly private citizen-a welfare recipientthe same rights as the Government accords a powerful corporation in contested matters: namely, the right to appear before an administrative law judge under the full rights and protection of the Administrative Procedure Act.

Then on December 14, 1973, the decision of the full Commission which reversed the Chairman's action of October 30 was sent to HEW declaring that the APA was not applicable to SSI and that the Secretary should go ahead under his own appointing authority to appoint SSI hearing examiners at GS-13 and an appropriate number of supervisory examiners at GS-14.

It is the opinion of the staff that APA coverage was originally intended by the Congress and that the CSC opinion was not only erroneous as a matter of legal interpretation but it also has exacerbated the appeals crisis. The Public Assistance Subcommittee has reported out H.R. 8911, 94th Congress, a bill which would amend the hearings and review provisions of SSI so that they are on all fours 5 with those for social security, including the adoption of the substantial evidence rule for judicial review. Moreover, the legislation would give the Secretary of Health, Education, and Welfare authority to make temporary appointments (which cannot extend later than December 31, 1978), of hearing examiners who do not meet the requirement of the appointment section

The 30 day period for an individual to appeal is retained for SSI: social security's period is 6 months.

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of the APA (5 U.S.C. 3105). These hearing officers would have to be admitted to the bar and have at least 5 years experience in the adjudication or consideration of Social Security Act claims or have engaged in the general practice of law for at least 5 years.

Unlike the current SSI examiners, they would also be authorized to conduct hearings under social security (title II) and medicare (title XVIII). This will create a common corps of examiners and enable the Bureau of Hearings and Appeals to effectively utilize all its resources. Currently, the approximately 100 SSI examiners cannot hear social security cases and inasmuch as almost half of the disability cases are concurrent cases (applications under both social security and SSI) this has made it much more difficult for the Bureau of Hearings and Appeals to manage the backlog of cases. The legislation will also do away with the anomolous situation whereby disability adjudications of equal difficulty under the same definition and procedures are made by hearing officers two grades below those who are authorized to do social security cases.

Measures to Reduce the Backlog

1. Remand to State Agency

An obvious solution to the appeals backlog is the remand of cases back to the State agency for, in theory at least, their speedy disposition. This has been going on with a two-stage effort. First, social security regional office personnel have examined backlogged hearing cases in "development centers" or in ALJ offices to identify cases which might be reversed by the State agency. Roughly, 12,000 cases were remanded this year and about half of them were reversed using this procedure. Second, under a new procedure just getting underway, district office personnel will examine files of individuals who request a hearing and route those that possibly can be reversed back to the State agency rather than to BHA development centers or ALJ offices. This latter process may involve in the neighborhood of 60,000 cases. Through August 27, 1975, about 2,000 such cases have been again reviewed by the agencies with 5.9 percent being reversed on the record transmitted from the district office and another 11.6 percent reversed after further record development. Thus, about 82 percent of these remanded cases where a decision has been made have been sent back to the BHA hearing process as still denied but half of these have had more documentation added to the file.

The advantages to the claimant who is awarded a benefit without waiting through the hearing backlog is clear. The effects on claimants who still are denied benefits are not so clear. Will the re-reconsideration mean a longer waiting period before a hearing is ultimately held? The so-called mandatory reconsideration itself is not a procedure set forth in the statute but in the regulations and there are those who have criticized it as exhausting the individual in "exhausting his administrative remedies."

There are also some administrative ramifications of these remand procedures. State agencies have had to take on workloads they were not budgeted for and presumably this affected their processing of initial determinations. Presumably these steps were taken because State agency workloads were such that they were in a better position to process the cases than the ALJs. This is a matter of dispute and representatives of the State agencies protested the lack of notice on the remand operation. Also, there is a question of how effective it is to have a State agency look at the same case three times within what could be a relatively short period of time-is this paper-shuffling rather than disability adjudication? Change of condition is often the determinant. of a case reversal but if the adjudication is on the same record is the process being advanced very much? These questions will be taken up with administration witnesses and the panel of State agency administrators who will be before the committee on October 3.

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2. Face-to-Face Contact with Claimant on Reconsideration

Many of the commentators who have studied the system in recent years and have noted that the rising reversal rates of social security hearing officers have laid heavy emphasis on the fact that the hearing is the first time that an adjudicator has face-to-face contact with the claimant. An interesting study entitled "State Agency Reconsideration Interview Study" (SARIS) was carried out by the Social Security Administration in 1971 to determine if a personal interview between the claimant and disability examiner at the State agency reconsideration level would result in more complete development of cases, better claimant acceptance of the decision, and a subsequent reduction in the number of appeals. Although the experiment was marred by different procedures used by the five State agencies participating and certain biases in the selection of the cases, the results did show a rather significant increase in the allowances rate for the cases with a personal interview and lower reversal rate on appeal for this type of case. On the other hand, almost as high a percentage of the interviewed cases requested a hearing as those who were not interviewed. The following table gives a breakdown of the 1,255 randomly sampled cases which had been through the regular reconsideration procedures and whose initial denial was ready to be affirmed by the State agency:

The Social Security Administration rejected this procedure on a “nationwide, mandatory basis" although it stated that "most States are now using the telephone to contact reconsideration claimants where there is a question unanswered or it appears that additional sources may exist." The administrative implications of such a system were described by SAA as follows:

Most optimistically, a State agency examiner might review the file and interview four claimants each day, provided these claimants could be scheduled for their interview at a central location. If travel to several locations were necessary, this figure would be correspondingly lower. Projections as a result of SARIS show that a minimum of 254 additional exam ner-years would be necessary for each 100,000 reconsideration interviews to conduct interviews only in the metropolitan areas. Should States conduct the interviews Statewide, this projection might be increased by as much as 50 percent because of travel time and other time-consuming factors.

Since the publication in 1974 of the Committee Staff Report where considerable attention was directed to SARIS and the issue of face-to-face contact, generally, the Social Security Administration has done some rethinking in this area and initiated a new study. This 16-State study which encompasses about 30 percent of their reconsideration workload has been endorsed by the Report of the Disability Claims Process Task Force (Boyd report). This internal study stated "We had previously recommended a test of this procedure, and suggest only that success be measured by whether the system results in significant improvement in correct decisions, rather than whether it reduces the incidence of hearings." As opposed to SARIS the new process will be conducted

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statewide rather than primarily in metropolitan areas. There wi'l be no exclusions because of the type of disability involved as under SARIS. In addition, the State agency examiner will attempt to contact the claimant over the phone immediately upon receipt and review of the folder, if there is insufficient evidence for a reversal, rather than waiting till the end-of-line interview for the first contact. Greater latitude will be given the examiner as to when the face-toface interview should take place. While most will take place after the telephone developmental interview and following all necessary development on the case, the personal interview could be held immediately after the telephone call where, in the judgment of the state agency examiner or the claimant, an immediate interview is desirable. In either case, the claimant would receive at least one telephone call and, at least in denial cases, one face-to-face interview with a trained disability examiner during the reconsideration process. Moreover, the face-to-face interview, regardless of when held, will be developmental in naturean evidentiary hearing, rather than a denial interview as SARIS was supposed to be.

In the questionnaire sent to the State agencies by the staff it is indicated that an overwhelming number of them are in favor of a face-to-face conference at the reconsideration level. Only two States did not like the idea of such a procedure. One State agency believed that face-to-face contact would undermine the objectivity of decisionmaking while the other did not want to see such procedures unless the disability determination units are federalized. A majority of the State agencies believed that appeals would be reduced by such a procedure but a few States thought they might be increased. The latter reasoned that many claimants do not appeal through ignorance and that when the process is explained face-to-face more of them will appeal. ("Staff Survey of State Disability Agencies Under Social Security and SSI Programs," pp. 15-16, 174-186.)

Quality of Adjudication

Although the current hearings were called primarily because of complaints of delays in the appeals process, the issue of the quality of adjudication must be considered. Over recent years the number of cases reversed on appeals has been increasing and the Social Security Administration has stated that it is playing a growing role in the actuarial deficiency in the disability insurance program. SSA states "While this higher rate of increase in the appeals process does not, of course, completely explain the increases (in allowances) in recent years, we feel that these increases do contribute substantially to the total increase." As is shown in table 9 the ALJ reversal rate was just under 20 percent n 1960 but now stands at around 50 percent.

In this situation the incentive to seek a hearing seems substantial and one has to wonder whether some of the less aggressive individuals who do not appeal are any less disabled than some who prevail at the hearing level.

There is also a rather significant variation in the reversal rate by ALJ's which a number of commentators believe indicates a weakness in the system. Edwin Yourman writes:

Variations in ALJ decisions for which no explanation has been found other than differences in individual ALJ judgment and evaluation indicate the necessity of innovative action to improve adjudication quality. The decisions (not including Black Lung) of 418 ALJ's for most of the first half of calendar year 1974 show that about 27 percent of the ALJ's had an allowance rate between the 51st and 60th percentiles; almost half had an allowance rate between the 46th and 65th percentiles. Thus, slightly more than half of the ALJ's had allowance rates outside this 20 percentile spread: 32 percent allowed fewer than 46 percent of their cases and 21 percent allowed more than 65 percent of their cases.

Heavier work loads and efforts to increase individual ALJ production place more strain on the quality of adjudication. Thus