Mr. BURKE. Would you like to comment on that, Mr. Kross? Mr. Chairman, the level of experience and requirements are the same. The vouchered inquiries, which are the basis of determining level and quality of professional experience as opposed to quantity was an identical copy of the voucher used that went to lawyers and judges used for the ALJ inquiry. The panels that involved oral interviews of SSI applicants all involved a representative of the ABA section of administrative law who had a one-third vote in determining whether we were qualified to be SSI applicants. And, Mr. Chairman, I don't want to get involved in quibbling over levels of experience, 4 years as against seven. I submit again that there is overwhelming consideration here that makes this unique from any other instance that we have had in Government or have today, and that is, Mr. Chairman, that all the qualifying experience in related fields of private practice in the world are not as important as the level of qualifying experience that come from holding hearings within the system that are identical and on legal issues that are the same, and writing decisions and performing as the ALJ does, and, Mr. Chairman, I suggest that the Commissioner of the Social Security Administration and the Director of the Bureau of Appeals in effect say to the Congress that, "We have a corps of people whom we know from watching them doing the work are qualified and we want to use them to handle title II cases," that, I think, answers the question. Mr. BURKE. This committee is faced with a real problem, and we are not concerned solely with helping the law judges or the hearing examiners with their nitty gritty problems. What we are faced with is reality, and we are facing the people of our district. Mr. Watson understands, and when we go around and we hear these people that have applications in for disability and are running into delays of 15 and 18 months-some of these are real basket cases. We have to act. So, I am hoping that the head of the Civil Service and Mr. Cardwell will get to the table together. We want to have a high quality of decisions, but we also don't want to make people wait 18 months or 2 years for their case to be acted upon-they should not have to wait that long. I can appreciate what you are saying, and what Mr. Watson is saying, but we are confronted with a real problem here, and we are dealing with people. I am not a lawyer, but I think the trouble with attorneys sometimes is that they get bogged down in their own confusion, and sometimes you need a layman in there to kind of straighten things out, and we are going to have some laymen who are going to have something to say about this. Mr. FAUVER. Mr. Chairman, if I may address the question of backlog, this backlog issue makes me think of a fellow in his dining room, and he sees the plaster coming down, because one of the children left the tap on in the bathtub. He runs upstairs with a mop. Instead, he is supposed to go upstairs and turn off the water and take a good look at what is happening to the house. First, I would like to say, Mr. Chairman, that if the Social Security Administration is not going to follow recommendations that studies really indicate are viable recommendations, the committee will really have to consider whether legislative action is necessary. If I may, I would like to introduce into the record recommendations that the Federal Administrative Law Judges Conference made back in 1973. If I may just introduce these, Mr. Chairman, these are the recommendations of the Federal Administrative Law Judges Conference to the Civil Service Utilization Study on Administrative Law Judges, and at pages 34 and 35, we made our recommendations then, and they concluded that the administrative law judge should be given remand authority, because the judges cannot do the investigation work of 10,000 State employees. We really recommended that. We recommended face-to-face conferences at the State level. [The recommendations referred to follow:] IV. SOCIAL SECURITY ADMINISTRATION HEARINGS AND APPEALS PROCEDURES On July 11, 1973, Judge Frank B. Borowiec, President of the Association of Administrative Law Judges in the Department of Health, Education, and Welfare, presented a statement to the Civil Service Commission Study Group on Utilization of Administrative Law Judges. After careful review of this important statement, and deliberations on further ways to improve the utilization of APA judges in Social Security proceedings, we recommend the following changes in SSA hearings and appeals procedures: 1. The administrative law judge should be given the authority, by statute or regulation, to remand cases to the appropriate Bureau or other office, at his discretion, when he determines that: (A) the case file reflects an inadequate and incomplete development of the case, or (B) there is significant new evidence not previously considered. The order of remand should specify the development, with or without further consideration, required by the judge. 2. The Social Security Administration should reinstate the SARIS program with provision for face-to-face conference with the claimant at the Reconsideration Stage. 3. Social Security proceedings which are required by law to be conducted before judges appointed and qualified pursuant to section 3105, Title 5, United States Code, should be adversary type proceedings. 4. Standards for agency review should be adopted to conform to those recommended for all agencies in Part II, above. 5. Publication, in permanent, publicly available form, of all decisions of APA judges and any decisions in review thereof. Mr. FAUVER. Mr. Chairman, I have in my briefcase today, and I imagine our staff has them, the form letters that these claimants get, and as you know, the claimant goes to the district office, he has the briefest of interviews, and when he leaves, that file goes down to a State office. The decisionmakers come to a decision, and enter a decision in the file, but the claimant doesn't get the decision. He gets a form letter. He doesn't know why he doesn't qualify. Then it goes to reconsideration. The decisionmakers don't see the claimant. It is no wonder that we have an army of litigants heading toward Arlington. From what I see of the hearings thus far, we may be proceeding on the basis of a false dichotomy here, and that is, efficiency versus justice, and I don't think that you have to sacrifice justice for efficiency. I have undertaken to interview a number of administrative law judges in the HEW Association, and I would just like to summarize 59-762 O 75 15 it. It won't take long. Proposals that they have made that have never been undertaken by the Social Security Administration which we feel would cut the backlog down, and you won't have to hire one more judge. This is the basis of years of experience. They say they should have authority to make oral decisions in granting allowances. Under the present system, Mr. Chairman, the Appeals Council does not review allowances, and the judge, nonetheless, has to render a written decision giving conclusions and determinations. The judges offer their suggestions to me. The ones I have talked to ask, "Why can't we dictate our decision on the record, and then just give a printed form, send it to Baltimore, and put the claimant right on the pension payment right then?" They say it will cut in half the time they spend in all the allowances cases. They also ask for remand authority. Now, there has been a misnomer in these hearings, Mr. Chairman. I believe that Mr. Cardwell referred to the experiment with an informal remand system. My inquiry of the judges indicates that they use, but actually the system at Social Security rather than an informal remand, is an automatic recall right. The difference would be this, Mr. Chairman. If at the reconsideration level the employee is denied the claim for disability allowance, under this informal remand system, all it means is the agency can keep the case from going to the judge. That is, it can recall the file back to redevelop evidence. That is a long shot, I submit, from remand. Remand would mean if a judge finds a case file is inadequate, it has not been properly developed, he will send it back and direct they do the proper job. This is the way it works with the Federal courts when they remand to a Federal agency. I would suggest that the experiment now being undertaken by SSA, that what they call an informal remand is a misnomer, that, in fact, there is no remand authority in these judges. Going next to the question of the face-to-face conference, I think there is an error, Mr. Chairman, in the record of this subcommittee. If I can touch on that, I am not going to get into the details, other than to suggest that the SARIS experience of face-to-face conferences with these claimants actually shows a 25-percent reduction in requests for hearings. The administration, I think, has misconstrued the statistics, and they felt there was no practical differences in requests for hearings, so why bother with it. We suggest that the average American will follow what he can understand. The present system, Mr. Chairman, is that these 107,000 people who are now trying to get a hearing have never been told why they were not disabled, and we think opening the communications between Government and the taxpayer is one of the core problems of this case. Another area is that under H.R. 8018, for example, the State agencies would be required not only to have a face-to-face conference with the claimant, he never knows who shot John, or whatever. The Government should give him a decision stating the relevant facts and the reasons for the decision. Also, we understand from the HEW judges that they don't need more judges over there. What they need is staff. There are many refer ences, Mr. Chairman, in this record to the great variation in the production of these ALJ's, but those production figures, the ones that I have seen, never showed the unit members' production rate, and that is, Mr. Chairman, some of these judges have a higher unit than others. If a man has five assistants, certainly he will turn out more decisions than someone who just has two. The judges over there tell me if they can work on the two-team system rather than the one team, presently most of them would have a hearing assistant and a secretary. They tell me that if they had two units, that is, one hearing assistant and a secretary, and another unit of hearing assistant and secretary, they could double the production. These are some of the ideas that would cut back the backload, without hiring one more judge. If you didn't have to hire one more judge, you wouldn't have to get to whether 8911 would be passed or not. Mr. BURKE. We will take your suggestions up and look them over carefully. The staff will look them over. Our next witness is Ernest P. Davis, Jr., chairman, Benefit Review Board, Policemen's Benevolent Association, Yardville, N.J. STATEMENT OF ERNEST P. DAVIS, JR., CHAIRMAN, BENEFIT REVIEW BOARD, POLICEMEN'S BENEVOLENT ASSOCIATION, YARDVILLE, N.J. Mr. DAVIS. We, the claimants thank you for the opportunity to present our side of a most serious matter. Wage and contract negotiations are going on throughout the country, as you know. We feel that it is our job as negotiators to obtain the best benefits possible for our members. We also feel that it is our duty to go about this in a way that is characteristic only of our American way-open forum-public testimony at public hearings, for this opportunity, again we thank you. For the record, my name is Ernest P. Davis, Jr., chairman, Benefits Review Board, Policemen's Benevolent Association, Local 105, Yardville, N.J. (See attachment I.) The major points of the Administrative Procedure Act (APA) were to satisfy the political will for reform, to improve and strengthen the administrative process and to preserve the basic limits upon judicial review of administrative action. The American Bar Association fought for the proposition that "the decisions of controversies must be brought back into the judicial system." Nonetheless, the APA was passed (1946). However, review continued. CONTROVERSIES 1949: The report of the Task Force on Regulatory Commissions of the first Hoover Commission led to recommendations, but no drastic changes in adjudication, rulemaking, or related activities. 1955: The report of the President's Conference on Administrative Procedure, which had been appointed in 1953 to inquire into the narrow subject of "unnecessary delay, expense and volume of records in some adjudication and rulemaking proceedings" was said to be noncontroversial, but mild and helpful. 1955: The report of the second Hoover Commission task force was of the view of consistent distrust of the agencies; many of the recommendations were extreme and some of them, admittedly, seemed ill considered. Yet the Hoover Commission refused to adopt the sweeping recommendations of the task force. Only three of its members gave unqualified support to the recommendations to amend the APA. 1957: At least 32 States had adopted a model administrative procedure act. The point being made that from the time of enactment, 1946, to a followup period, 1957, controversy had surrounded the APÁ. Reaction had been swift and sure from sides both pro and con. The APA has for the most part survived intact, since enactment, because, in my opinion, recognition of judicial review and administrative procedures are essential to our society. There is controversy and reaction today in these hearings by both sides of the appeals question. However, we must not lose sight of an accepted foundation of each sides' argument-that of the recognition of unnecessary delay, expense and volume of records in some adjudicatory and rulemaking proceedings. The disagreement being as to the person or persons causing the delay and to whom and where the blame therein lies. SCOPE OF THE APPEAL We appeal to you, that the Social Security Administration through the APA discourages claimants and thwarts inquiries. CASE IN POINT Our case began with a telephone call by me to a State of New Jersey pension official, see attachment II, protesting the payment of the FICA tax. This resulted in his denial of a formal written appeal, see attachment III. A review of attachment III and the laws cited prompted claimants to review the APA, section 218 of the Social Security Act, and New Jersey Statutes Annotated, 43:22–1 and the following *** An appointment with the local social security office was then arranged. Thereupon, the oral argument was presented, but not in the manner prescribed by APA, section 7, (c)-evidence at hearings. This section in part says that every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence as may be required for a full and true disclosure of the facts. Representatives of the State of New Jersey never showed up at the hearing. We could and tried to show: New Jersey Statutes Annotated, 43:21-1 and the following, appeared in conflict with a Federal procedure. Namely, setcion 218(d) (2) of the act, "*** periodic benefits under such a retirement system at such time will not be impaired as a result of making the agreement. ***" Claimants had been members of a pension plan where FICA_tax payment was not required; then forced to join another plan where FICA tax payment was required; then permitted to join still another plan where FICA tax payment was required. By joining any of the plans our benefit rights would be impaired. Section 218 (d) (3) of the act requires a certain procedure if social security coverage is to be extended to a group. The previously cited New Jersey statute would appear to be the authority used by the State of New Jersey to circumvent this procedure. No copies of any contract, |