U.S. GOVERNMENT PRINTING OFFICE

67–603 CC WASHINGTON : 2000

SOCIAL SECURITY NOTICES

HEARING

BEFORE THE

SUBCOMMITTEE ON SOCIAL SECURITY

OF THE

COMMITTEE ON WAYS AND MEANS

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

SEPTEMBER 26, 2000

Serial 106–65

Printed for the use of the Committee on Ways and Means

(

ii

COMMITTEE ON WAYS AND MEANS

BILL ARCHER, Texas, Chairman

PHILIP M. CRANE, Illinois

BILL THOMAS, California

E. CLAY SHAW, JR., Florida

NANCY L. JOHNSON, Connecticut

AMO HOUGHTON, New York

WALLY HERGER, California

JIM MCCRERY, Louisiana

DAVE CAMP, Michigan

JIM RAMSTAD, Minnesota

JIM NUSSLE, Iowa

SAM JOHNSON, Texas

JENNIFER DUNN, Washington

MAC COLLINS, Georgia

ROB PORTMAN, Ohio

PHILIP S. ENGLISH, Pennsylvania

WES WATKINS, Oklahoma

J.D. HAYWORTH, Arizona

JERRY WELLER, Illinois

KENNY HULSHOF, Missouri

SCOTT MCINNIS, Colorado

RON LEWIS, Kentucky

MARK FOLEY, Florida

CHARLES B. RANGEL, New York

FORTNEY PETE STARK, California

ROBERT T. MATSUI, California

WILLIAM J. COYNE, Pennsylvania

SANDER M. LEVIN, Michigan

BENJAMIN L. CARDIN, Maryland

JIM MCDERMOTT, Washington

GERALD D. KLECZKA, Wisconsin

JOHN LEWIS, Georgia

RICHARD E. NEAL, Massachusetts

MICHAEL R. MCNULTY, New York

WILLIAM J. JEFFERSON, Louisiana

JOHN S. TANNER, Tennessee

XAVIER BECERRA, California

KAREN L. THURMAN, Florida

LLOYD DOGGETT, Texas

A.L. SINGLETON, Chief of Staff

JANICE MAYS, Minority Chief Counsel

SUBCOMMITTEE ON SOCIAL SECURITY

E. CLAY SHAW, JR., Florida, Chairman

SAM JOHNSON, Texas

MAC COLLINS, Georgia

ROB PORTMAN, Ohio

J.D. HAYWORTH, Arizona

JERRY WELLER, Illinois

KENNY HULSHOF, Missouri

JIM MCCRERY, Louisiana

ROBERT T. MATSUI, California

SANDER M. LEVIN, Michigan

JOHN S. TANNER, Tennessee

LLOYD DOGGETT, Texas

BENJAMIN L. CARDIN, Maryland

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records

of the Committee on Ways and Means are also published in electronic form. The printed

hearing record remains the official version. Because electronic submissions are used to

prepare both printed and electronic versions of the hearing record, the process of converting

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process

is further refined.

iii

C O N T E N T S

Page

Advisory of September 19, 2000, announcing the hearing ................................... 2

WITNESSES

Social Security Administration, Hon. William A. Halter, Deputy Commissioner ..................................................................................................................... 6

U.S. General Accounting Office, Barbara D. Bovbjerg, Associate Director,

Education, Workforce, and Income Security Issues; Health, Education, and

Human Services Division, accompanied by Kay Brown, Assistant Director ... 13

SUBMISSIONS FOR THE RECORD

Bilingual Services Working Group: Disability Law Center, Inc., Boston, MA,

Linda L. Landry; National Senior Citizens Law Center, Los Angeles, CA,

Gerald McIntyre; Northwest Justice Project, Seattle, WA, Gillian Dutton;

Greater Upstate Law Project, Rochester, NY, Edwin Soto-Lopez; and Cedar,

New York, NY, Christopher Bowes; joint letter ................................................ 50

Center for Disability Advocacy Rights, Inc., New York, NY, Christopher

James Bowes, letter and attachment ................................................................. 52

Matsui, Hon. Robert T., a Representative in Congress from the State of

California, statement ........................................................................................... 4

National Alliance for the Mentally Ill, Arlington, VA, Gerald R. Tarutis,

statement .............................................................................................................. 54

Robert, Charles, Robert, Lerner & Robert, New York, NY, statement and

attachments .......................................................................................................... 56

Tyler, Johnson M., South Brooklyn Legal Services, Brooklyn, NY, letter and

attachments .......................................................................................................... 62

Vollmer, Peter, Vollmer & Tanck, Uniondale, NY, letter ..................................... 66

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SOCIAL SECURITY NOTICES

SEPTEMBER 26, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON WAYS AND MEANS,

SUBCOMMITTEE ON SOCIAL SECURITY,

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:07 a.m., in

room B–318, Rayburn House Office Building, Hon. E. Clay Shaw,

Jr. (Chairman of the Subcommittee) presiding.

[The advisory announcing the hearing follows:]

2

ADVISORY

FROM THE COMMITTEE ON WAYS AND MEANS

SUBCOMMITTEE ON SOCIAL SECURITY

FOR IMMEDIATE RELEASE CONTACT: (202) 225–9263

September 19, 2000

No. SS–23

Shaw Announces Hearing on Social Security

Notices

Congressman E. Clay Shaw, Jr., (R–FL), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced that the Subcommittee

will hold a hearing on Social Security notices. The hearing will take place on Tuesday, September 26, 2000, in room B–318 Rayburn House Office Building, beginning

at 10:00 a.m.

Oral testimony at this hearing will be heard from invited witnesses only. Witnesses will include representatives from the U.S. General Accounting Office (GAO)

and the Social Security Administration (SSA). However, any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by the Committee and for inclusion in the printed record of the hearing.

BACKGROUND:

Social Security programs (Old-Age, Survivors, and Disability Insurance and Supplemental Security Income) provide monthly cash benefits to about 50 million beneficiaries. SSA mails millions of letters each year to applicants and recipients about

its decisions to award, change, or deny benefits. In many cases these letters contain

vital information needed by recipients and their families to make important medical,

financial, and personal decisions.

Yet, in 1994, GAO found that SSA’s letters were often difficult to understand,

lacked essential details, presented information in an illogical order, and required

complex analysis to understand how benefit adjustments had been made. Chairman

Shaw has asked GAO to assess SSA’s progress in improving its letters. These findings will be presented at the hearing.

In announcing the hearing, Chairman Shaw stated: ‘‘One of SSA’s goals is to deliver customer-responsive world-class service. Such service must ensure that these

life-changing notices are accurate and easy to understand. We need to know if agency notices provide intelligible information for today’s customers and if not, how this

can be corrected before workloads at the agency substantially increase with the upcoming retirement wave of the baby boomers. Providing quality notices should be

one of the agency’s top priorities.

FOCUS OF THE HEARING:

The hearing will focus on the quality of SSA’s notices and the status of SSA’s actions to address notice improvement.

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

Any person or organization wishing to submit a written statement for the printed

record of the hearing should submit six (6) single-spaced copies of their statement,

along with an IBM compatible 3.5-inch diskette in WordPerfect or MS Word format,

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with their name, address, and hearing date noted on alabel, by the close of business,

Tuesday, October 10, 2000, to A.L. Singleton, Chief of Staff, Committee on Ways

and Means, U.S. House of Representatives, 1102 Longworth House Office Building,

Washington, D.C. 20515. If those filing written statements wish to have their statements distributed to thepress and interested public at the hearing, they may deliver

200 additional copies for this purpose to the Subcommittee on Social Security office,

room B–316 Rayburn House Office Building, by close of business the day before the

hearing.

FORMATTING REQUIREMENTS:

Each statement presented for printing to the Committee by a witness, any written statement

or exhibit submitted for the printed record or any written comments in response to a request

for written comments must conform to the guidelines listed below. Any statement or exhibit not

in compliance with these guidelines will not be printed, but will be maintained in the Committee

files for review and use by the Committee.

1. All statements and any accompanying exhibits for printing must be submitted on an IBM

compatible 3.5-inch diskette in WordPerfect or MS Word format, typed in single space and may

not exceed a total of 10 pages including attachments. Witnesses are advised that the Committee

will rely on electronic submissions for printing the official hearing record.

2. Copies of whole documents submitted as exhibit material will not be accepted for printing.

Instead, exhibit material should be referenced and quoted or paraphrased. All exhibit material

not meeting these specifications will be maintained in the Committee files for review and use

by the Committee.

3. A witness appearing at a public hearing, or submitting a statement for the record of a public hearing, or submitting written comments in response to a published request for comments

by the Committee, must include on his statement or submission a list of all clients, persons,

or organizations onwhose behalf the witness appears.

4. A supplemental sheet must accompany each statement listing the name, company, address,

telephone and fax numbers where the witness or the designated representative may be reached.

This supplemental sheet will not be included in the printed record.

The above restrictions and limitations apply only to material being submitted for printing.

Statements and exhibits or supplementary material submitted solely for distribution to the

Members, the press, and the public during the course of a public hearing may be submitted in

other forms.

Note: All Committee advisories and news releases are available on the World

Wide Web at ‘‘http://waysandmeans.house.gov’’.

The Committee seeks to make its facilities accessible to persons with disabilities.

If you are in need of special accommodations, please call 202–225–1721 or 202–226–

3411 TTD/TTY in advance of the event (four business days notice is requested).

Questions with regard to special accommodation needs ingeneral (including availability of Committee materials in alternative formats) may be directed to the Committee as noted above.

Chairman S

Each year the Social Security Administration mails out millions

HAW. Good morning.

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of letters to Social Security and SSI beneficiaries. The purpose of

these letters is to notify people about changes in their eligibility

status or inthe amount of monthly benefits that they receive.

These letters represent the official communication between the

Social Security Administration and the public. Millions of elderly

Americans, especially those with low income, rely on Social Security as their only source of incomes. Any changes in benefits or eligibility has an extremely important impact on these people’s lives.

The amount of their Social Security or SSI check may be the difference between paying the monthly bills or not paying the monthly bills.

4

Social Security rules are complicated enough. If someone does

not understand what a letter says, they may not understand that

their monthly income will change, or in some cases, even be discontinued. And they may not understand what steps they can take to

address the situation if a mistake was indeed made. As a result,

it is vital that SSA’s letters to the public are as clear and easy to

understand as possible.

Yet, SSA letters are not clear. They are confusing, sometimes illogical, contradictory, and oftentimes frightening, especially when a

senior on a fixed income is told that they owe $4,435 in 30 days.

A recent court case ruled that certain letters are even constitutionally defective because they violate the principles of due process.

For many years GAO has criticized these letters and has recommended that improvements be made, and for many years SSA

has agreed that a real problem does in fact exist, and they have

vowed to make improvements.

Last year I asked the General Accounting Office to report on the

progress SSA has made in improving their letters to the public. I

am extremely disappointed to learn that the answer is little to

none. GAO will testify today that improving these notices has not

been a priority for SSA. The agency has taken very little action to

fix the problem, and the letters remain as confusing today as they

were several years ago when the problem was identified.

For an agency that prides itself on delivering world-class customer service—and it does—it is beyond me how a problem of this

magnitude fails to be addressed. SSA has recognized this problem

and has pledged to fix it. Yet time and time again, plans to address

the problems have been rescheduled, delayed or simply put off.

In a few years millions of baby-boomers will reach their peak disability years and then their peak retirement years. As a result

SSA’s workload will increase substantially. Indeed, SSA has testified before the Subcommittee about the daunting challenges ahead

as the agency prepares for the increasedworkload. It seems to me

that SSA’s ability to effectively communicate with the public is

paramount in providing quality customer service, and this is a

problem that needs to be fixed before the baby boomers become

SSA customers.

I look forward to hearing from our witnesses today and to learn

what SSA plans to do to address these problems, and I would now

yield to Mr. Cardin for such time as you may want to consume.

Mr. CARDIN. Thank you, Mr. Chairman, and let me express Mr.

Matsui’s sorrow for not being able to be present today, and I would

ask that his statement be made part of our record.

Chairman SHAW. Without objection.

[The statement of Hon. Robert T. Matsui follows:]

Statement of Hon. Robert T. Matsui, a Representative in Congress from the

State of California

The Social Security program serves millions of people. This year, over 150 million

people will work in Social-Security-covered employment, and the Social Security and

SSI programs will pay benefits to 50 million. Most of the time, we don’t stop to

think about all the information that the Social SecurityAdministration (SSA) provides. SSA communicates to the American people through its toll-free telephone

number, its branch offices, and its website.

One of the most important ways that SSA provides information is through written

notices. This year alone, SSA expects to send out approximately 390 million notices

5

to claimants, beneficiaries, workers, employers, and government agencies. Over the

past several years, SSA has worked to improve the clarity and readability of the

vast majority of its notices. The Commissioner of Social Security, Ken Apfel, testified before the Subcommittee earlier this year about the agency’s initiatives.

At today’s hearing, our witnesses will talk more specifically about a small subset

of the agency’s notices. The General Accounting Office (GAO) is here to tell us about

their latest study, in which GAO examined four types of notices the SSA issues.

These notices tell people whether they have beenawarded or denied benefits, or that

their benefit payments will be adjusted because of a change in their personal circumstances.

The people who receive these notices rely on the information contained in them

to make vitally important financial and legal decisions. Whether it is the mother

receiving a notice about SSI benefits for her disabled child, or the elderly widow

whose benefits are changing after the death of her husband,people count on these

notices to be clear and thorough.

Today, GAO will report that these four types of notices need significant improvement. The notices are often hard to follow, and the recipient may have difficulty figuring out what action SSA is taking. The notices may not explain why SSA is taking

a particular action. And the notices may be missing critical facts that the recipient

needs in order to make an informed decision about what to do next.

I recognize that SSA faces a monumental task in revising these four types of notices. Making the changes that GAO recommends will involve reprogramming dozens of software programs and hundreds of lines of computer code. Since these notices convey decisions about programs with very complex rules such as SSI it will

always be a challenge to present this information in an easily understandable manner. Finally, because a relatively small percentage of people receive these types of

notices, the large amount of resources required to improve them may not make this

project very attractive.

However, these notices are sent to some of the most vulnerable members of our

society the young, the sick, and the old. These people look to Social Security in

times of need. To leave them, or the people who care for them, bewildered over a

change in benefits or feeling as though they simply have norecourse in responding

to a decision is simply unacceptable.

I am very proud of our nation’s Social Security program, and I know SSA is committed to providing its clients with the best possible service. Although these changes

may be difficult, I know that the agency can and will make them in a timely manner. I look forward to hearing from Ms. Bovbjerg about GAO’srecommendations for

improving SSA’s notices and from Mr. Halter about the steps the agency is taking

to implement them.

this hearing. We very much welcome the deputy commissioner and

Mr. CARDIN. We join you on this side of the aisle in welcoming

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the testimony from GAO as to the notices being sent out by the Social Security Administration. We think this is an extremely important subject. 150 million will work inSocial Security covered employment this year, and Social Security and SSI combined will pay

benefits to about 50 million people in 2000.

I don’t think we quite understand the enormity of the task that

faces SSA in communicating with the American public about these

programs. Indeed, for 2000, SSA expects to send out approximately

390 million customized notices to claimants, beneficiaries, workers,

employers and government agencies, 390million customized notices.

That is quite a task.

As you point out, we have had hearings before this Subcommittee, and we know that Commissioner Apfel has made great

strides in improving the annual Social Security statement that is

now sent to every American worker over the age of 25. These annual statements now comprise approximately one-third ofthe automated notices SSA issues. About 133 million such statements will

be issued for 2000.

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We join the Chair in recognizing that improvements need to be

made, and we must continue to conduct oversight and make sure

that we improve the notices that are being sent to the beneficiaries

particularly, because they rely on that information. It is extremely

important they get accurate informationand timely information.

But, Mr. Chair, if I might, on a personal note, make a plug for

the bill that you have been working on, and that I hope to work

with you on, and that is to remove the SSA’s administrative budget

from the discretionary spending caps, because I do think part of

the problem is that we need to take a look at what is the right

amount of administrative support for the agency, not just in personnel, but in systematic improvements. And competing today in

Labor-HHS-Education on the discretionary caps makes little sense,

and I would hope that legislation would help us in providing the

necessary tools and holding SSAaccountable to perform the way

that our constituents expect them to perform.

So I look forward to the witnesses today and I look forward to

working with you in making sure that we get the best possible

service to the people of his nation under the Social Security Administration.

Chairman SHAW. Thank you, Ben. The budgetary problems that

you mention, perhaps we can work together to develop an argument during this hearing with regard to that.

We have here just two panels, each comprised of one person.

From the Social Security Administration we have the Honorable

William A. Halter, who is the Deputy Commissioner of Social Security.

Then we have, from the U.S. General Accounting Office, Barbara

Bovbjerg, who is the Associate Director of Education, Workforce

and Income Security Issues, Health, Education and Human Services Division.

If neither of the witnesses has any objection, I think it would be

to our advantage to be able to handle this as one panel so that we

can go from question to question and people have an opportunity,

particularly you, Mr. Halter, to reply to any problems that Ms.

Bovbjerg may point out to us.

So, Ms. Bovbjerg, if you would please, if you have no objection

to sitting here at the table together, I think it would be very helpful to us and to this hearing.

I thank you. Mr. Halter.

STATEMENT OF HON. WILLIAM A. HALTER, DEPUTY

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

Mr. HALTER. Thank you, Mr. Chairman, Congressman Cardin,

Congressman Levin.

It is my pleasure to be here today to discuss the GAO’s report

and our continuing efforts to ensure that the notices the Social Security Administration sends to the public are clear and informative.

Improving the notices targeted by the GAO requires diverting resources from other priorities. We have committed those resources.

Furthermore, we will put in place mechanisms necessary to measure our performance for improving the notices.

Mr. Chairman, as you know and as Congressman Cardin alluded

to, Social Security processes large workloads each and every day.

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Fifty million beneficiaries receive the right payment on time each

month. On average, each work day, about 100,000 people visit one

of our 1,300 field offices, and over 240,000 people call our 800 telephone number.

Our goal at the Social Security Administration is to provide the

best in business service, which includes making written notices

easy to read, accurately communicating all necessary information

and clearly indicating any actions or information that we expect

from the recipient of the notice.

The most formidable challenge in improving our notices results

from the complexity of our programs and the sheer volume of the

notices we must produce. As Congressman Cardin noted, each year

we send out about 390 million forms and notices to the public. This

number has grown dramatically in thepast year, primarily because

we are now sending Social Security statements to 133 million people annually. About 95 percent of the notices are produced from

automated systems. These systems use more than 10,000 different

paragraphs of text to compose letters to respond to the multitude

of combinations of circumstances that apply to different beneficiaries. The notices cited by GAO, the Social Security Benefit Adjustment Notices and SSI Notices, are especially complex. An average benefit adjustment notice will contain eight pages, 40 paragraphs and 225 fill-in-the-blank spots. A complicated notice can

contain up to 15 pages, 100 paragraphs and 800 fill-ins. In SSI notices, each paragraph can have from 2 to 122 fill-in choices. Each

of these fill-ins also has multiple variations.

All of Social Security’s notices must meet certain legal requirements, especially if they involve a customer’s rights and responsibilities. It is sometime very difficult to construct notice language

that accomplishes this while making the notice simple. Producing

millions of personalized notices where many different fact situations are present is one of our greatest challenges.

I would like to review with you today our progress so far in improving our notices and our plans for further improvements, including those steps recommended by GAO. In 1993, Mr. Chairman, 30

percent of our notices needed to be improved. Over the years we

have improved our notices so that only 8 percent remain to be addressed.

Improvements made in the last few years include making 56 million more notices a year available in Spanish, improving the language in debt collection or billing notices that we sent to approximately 3 million a year, improving the language of 31⁄2 million

health insurance notices, and revising all of our hearing-level notices.

In its review GAO focused on four types of notices that go to 14.2

million people each year and convey important information about

their eligibility for benefits or changes in their benefit amount. Importantly, in two months, that is to say, November 2000, we will

have in place corrections for nearly 7million of these 14.2 million

notices. In addition, because of the retirement earnings test elimination legislation that was passed this past year, the 14.2 million

figure will decrease by another 1.4 million in the next year as certain notices will no longer need to be sent.

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The Social Security Administration has committed the resources

and has a project plan that describes the steps necessary to fix the

remaining 6 million notices from the GAO report. To complete the

notice improvement project our plan will allow us to make steady

progress on improving these, our mostchallenging notices.

Now, as I noted, we have already made progress in addressing

the problems identified for two of the four notice types identified

in the GAO report. For example, the remaining problems with the

Social Security Award Notice will be resolved within the next two

months. The remaining problems with the Social Security Benefit

Adjustment Notice will be corrected by July of 2002.

We recognize that we still need to improve notices that explain

the effects of the retirement test on benefits. However, thanks to

the elimination of the retirement test at full retirement age earlier

this year, about two-thirds fewer beneficiaries are subject to that

retirement test. The number of complicated retirement notices, currently around 31⁄2 million, will drop by approximately 40 percent.

We face our most difficult task in improving SSI Awards and

Benefit Adjustment Notices. Because the SSI program is complex,

explanations of the effect of income, resources and living arrangement changes will always, by their nature, be difficult to present

in an easy, understandable manner. There is virtually no limit on

how many variations can apply to a single beneficiary, meaning

that the SSI notices must be able to handle an almost unlimited

array of possibilities with a large number of variables. In addition,

improvements to these notices will require an investment of information technology resources to change the SSI computational and

notices systems.

Although, as noted in the GAO report, there are no quick fixes

for making improvements in this area, we are committed to making

the improvements needed as quickly as possible, and we have

started work on these changes. For example, in February of this

year we drafted and tested a prototype worksheet to be added to

the SSI Award and Benefit Adjustment letters, showing how SSI

benefits are computed. This worksheet shows how SSI benefits are

computed in relatively uncomplicated cases. That is 90 percent of

the cases in which SSI recipients have no income or only unearned

income such as SocialSecurity benefits. This worksheet will be

added to the SSI letters for this population as part of the major notice system changes that will be implemented by July of 2002.

We agree with GAO’s recommendation to develop performance

measures for notice clarity and beneficiary understanding of the

most complex notices. In this coming fiscal year we will conduct a

customer satisfaction survey to secure reliable baseline data on

customer satisfaction with the notices that we have targeted for

improvement. Using the feedback obtained from this survey, we

will pursue the development of performance measures that address

GAO’s concerns.

Regardless of how much improvement is made in our most problematic notices, there are complex issues in which many of our customers will need to discuss the information received. Therefore, in

addition to improving the majority of our notices, we have provided

our public contact personnel with additional tools for responding to

concerns or questions about notices. For example, as a result of the

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Online Notice Retrieval System, which was implemented nationally

in November of 1998, public contact personnel in our field offices

and teleservice centers now have direct online access to the specific

notice information and language contained in the vast majority of

notices received by the public. The next release of this system

planned for later this year will provide online access to virtually all

remaining notices and will further enhance our ability to communicate effectively with our customers.

In addition to making internal improvements to our process, we

are firmly committed to involving the public in the evaluation of

products and services that affect them. This year alone we have

conducted over 24 focus group tests to get the public’s reaction to

this worksheet that we plan to add to our SSInotices. In our annual customer satisfaction survey we ask respondents to rate the

clarity of information we mail to them. Our most recent survey results indicate that 86 percent are satisfied or very satisfied with

their mail from the Social Security Administration. Importantly,

Mr. Chairman, this is animprovement over prior years, where the

results were 65 percent satisfaction rating in FY 1993.

In conclusion, Mr. Chairman, we agree with the recommendations of the GAO report. We have already improved the language

and format of about 92 percent of our notices. In fact, GAO acknowledged in its report that in spite of increasing workloads and

efforts to address agency priorities such as maintaining program

integrity, the Social Security Administration has made major notice

enhancements. And we have recently committed resources to improving the remaining problematic notices.

Mr. Chairman, I would be happy to answer any questions you

may have.

[The prepared statement follows:]

Statement of Hon. William A. Halter, Deputy Commissioner, Social Security

Administration

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss the General Accounting Office (GAO) report and our continuing efforts to ensure that the notices the Social Security Administration (SSA) sends to the public are clear and informative. Effective communication between the Social Security Administration and theAmerican public is very important. We appreciate the opportunity to discuss the progress that we have made

in improving our notices and our plans for future improvements. While improving

the notices targeted in the GAO report within the timeframes we have set will require diverting resources from otherpriorities, we have committed those resources.

Furthermore, we will put in place mechanisms necessary to measure our performance for improving the notices, as recommended by GAO.

Our goal at the Social Security Administration is to provide the best in business

service which includes making written notices easy to read, accurately communicating all necessary information, and clearly indicating any actions or information

that we expect from the recipient of the notice. Not surprisingly, our customers tell

us that a key aspect of the service we provide is the clarity of our notices. In numerous customer satisfaction surveys, notice recipients have stated that it is important

for them to readily understand what we are writing to them about. Clear notices

not only help the customer but also lead to a much more efficient delivery of services for the Social Security Administration.

Mr. Chairman, let me give you some examples of the magnitude of the Social Security’s service responsibilities. We are committed to providing the right benefit payment to the right person on time, and we do so over 600 million times a year. This

represents 50 million monthly payments to Old-Age, Survivors and Disability Insurance (OASDI) and Supplemental Security Income (SSI) recipients. On average, each

workday about 100,000 people visit one of our 1,300 field offices and over 240,000

people call our 800 telephone number. Each workday we process an average of

10

20,000 initial claims for retirement, survivors, disability or SSI benefits, and hold

2,400 hearings before Administrative Law Judges (ALJs). Each year, we make certain that over 250 million earnings items are correctly credited to workers’ accounts

to ensure that future benefit payments are accurate. We take these

responsibilitiesvery seriously, because millions of Americans rely on us as they have

for the past 65 years.

The most formidable challenge in improving our notices results from the complexity of our programs and the sheer volume of notices we must produce. Each

year, we send about 390 million forms and notices to the public. This number has

grown dramatically in the past year, primarily because we are nowsending Social

Security Statements to 133 million people annually. Our notices are produced from

15 separate computer software systems and from countless manual processes. About

95 percent of the notices are produced from automated systems. These systems use

more than 10,000 different paragraphs of text to compose letters to respond to the

multitude of combinations of circumstances that apply to different beneficiaries.

All of Social Security’s notices must meet certain legal requirements, especially

if they involve a customer’s rights and responsibilities. It is sometimes very difficult

to construct notice language that accomplishes this, while the notice simple. Many

of these notices require customized text where the result of a Social Security Administration action must be explained by computer insertion of relevant paragraphs.

These insertions must also be organized in a logical manner. Producing millions of

personalized notices where many different fact situations are present is one of our

most challenging duties.

I would like to review with you today the process we are using to improve our

notices, including our actions taken so far, and our plans for further improvements

including those recommended by GAO.

We have improved the clarity of the vast majority of our notices, provided additional capabilities for staff responding to notice inquiries, and we have modernized

and streamlined the way we produce notices. We have improved letters to retirement, survivors and disability beneficiaries, SSI overpaymentletters, notices announcing cost-of-living adjustments, notices to employers and employees and the Social Security Statement.

Since 1985 the agency has been seeking to improve its most problematic notices

and high visibility form letters. We focused our initial efforts on notices that affected

the greatest number of customers and that were less complex notices to generate.

This allowed us to improve 92 percent of the notices we issue each year. In 1993,

the agency convened a steering committee composed of representatives of all parts

of Social Security to guide these efforts. As a result of this initiative, the agency

has made many major enhancements in the quality of our notices and improved the

service to notice recipients. We have modernized and streamlined the notice production environment.

Improvements made in the last few years include:

• Improving the language of 3.5 million health insurance notices,

• Eliminating the use of confusing multi-use form letters that were sent to 9 million people each year,

• Improving the language in debt-collection or billing notices that we send to approximately 3 million people a year,

• Improving letters that we send to approximately 4 million people each year to

confirm appointments,

• Revising all of our hearing level notices, which amount to .5 million that we

send annually,

• Making 56 million more notices a year available in Spanish, and

• Consolidating duplicate notice language databases.

In 1993, 30 percent of our notices needed to be improved; over the years, we have

improved our notices so that only 8 percent remain to be addressed. We have already begun to improve the remaining 8 percent, which were cited in the GAO report.

The most challenging notices to improve are:

• The Social Security benefit adjustment notices, including overpayments and underpayments, and

• SSI award notices and notices of action to be taken by the Social Security Administration regarding the recipient’s SSI eligibility or benefit amount.

In its review GAO focused on 4 types of notices that together total 14.2 million

pieces of correspondence each year which convey important information about eligibility for benefits or changes in benefit amount. In two months, we will have in

place corrections for nearly 7 million of these notices. In addition, because of the

11

Retirement Earnings test legislation, the 14.2 million figure will decrease by another 1.4 million in the next year, as certain notices will no longer be sent. The Social Security Administration has committed the resources and has a project plan

necessary to fix the remaining 6 million notices. To complete the notice improvement project, our plan will allow us to make steady progress on improving these

most challenging notices over the next four years.

With regard to the notices that were the focus of the GAO report, we are pleased

to report that we have already made progress in addressing the problems identified

in the report regarding the Social Security Award Notice and the Social Security

Benefit Adjustment Notice. The remaining problems withthe Award Notice will be

resolved within the next two months. With regard to remaining problems with the

Social Security Benefit Adjustment Notice, we have a team working to complete all

improvements in these notices by July 2002. The complexity with the current Social

Security Benefit Adjustment Notices occurs because the notices are generated from

46 separate software programs and are composed by selecting from 146 different

paragraphs. An average Benefit Adjustment Notice will contain 8 pages, 40 paragraphs, and 225 fill-ins. A complicated notice can contain up to 15 pages, 100 paragraphs, and 800fill-ins.

Notices that explain the effects of the retirement test on benefits will be improved

as part of the effort that will be completed in July 2002. However, thanks to the

elimination of the retirement test at full retirement age earlier this year, about twothirds fewer beneficiaries are subject to the retirement test. The number of complicated retirement test notices and subsequent notices dealing with the resulting

overpayments and underpayments, currently approximately 3.5 million, will drop by

approximately 40 percent.

We face our most difficult task and greatest challenge in improving SSI Awards

and Benefit Adjustments Notices. Because the SSI program is complex, explanations

of the effect of income, resources, and living arrangement changes will always, by

their nature, be difficult to present in an easy, understandable manner. In addition,

improvements to these notices will require an investment of information technology

resources to change the SSI computational and notices systems.

As an example of the complexity of the task we face, the SSI notices computer

program selects from approximately 700 paragraphs, which are tailored to the characteristics of an individual’s case. Each paragraph can have from 2 to 122 fill-in

choices. Each of these fill-ins also has multiple variations. The Social Security Administration produces an average of 1.4 million SSI notices each month, not including the 7.5 million cost-of-living adjustment (COLA) notices generated each November. A SSI recipient can have different income, resources, and living arrangements

from month to month, coupled with overpayments and/or underpayments. Notices

reflect past or present changes and the consequences of those changes. There is virtually no limit on how many variations can apply to a single beneficiary, meaning

that the SSI notices must be able to handle an almost unlimited array of possibilities with a large number of variables.

Although, as noted in the GAO report, there are no quick fixes for making improvements in this area, we are committed to making the improvements needed as

quickly as possible. The Social Security Administration has started work on these

changes. In February 2000, we drafted and tested a prototype worksheet to be

added to SSI award and benefit adjustment letters showing how SSI benefits are

computed. The worksheet that we tested was intended to show how SSI benefits are

computed in relatively uncomplicated cases—that is, the 90 percent of cases in

which SSI recipients have no income or only unearned income, such as Social Security benefits. This worksheet will be added to the SSI letters for this population as

part of the major notice systems changes that will be implemented by July 2002.

In July 2000 we tested the worksheet with SSI recipients who have a combination

of earned and unearned income because we wanted to make sure that our worksheet

would take care of more complicated eligibility situations. Through incremental improvements to these types of notices, by September 2004 we plan to incorporate the

more complex earned and unearned situations, such as a child receiving benefits

based on parents’ income, into the worksheet.

We have dedicated the resources necessary to fix almost all of the Social Security

notices cited by GAO by July 2002 and almost all of the SSI notices by September

2004. This will include the addition of a worksheet detailing the computation for

SSI notice recipients. Furthermore, we will put in place the mechanisms necessary

to measure our performance for improving the notices as recommended by GAO.

As we implement these improvements, we will not lose sight of the needs of the

public for notices that are complete, clear, and accurate, and we will continue to

consult with the public as to how well we are meeting their needs. Improvement

12

to our notices continues to be a central element to our overall plan to provide highlevel service to the public.

Regardless of how much improvement is made in our most problematic notices,

there are complex issues and/or unique situations in which many of our customers

will need or want to discuss the information received. Therefore, in addition to improving the majority of our notices, we have provided our public contact personnel

with additional capabilities to use when responding to concerns or questions about

notices. As a result of the Online Notice Retrieval System (ONRS), implemented nationally in November 1998, public contact personnel in our field offices and teleservice centers now have direct online access to the specific notice information and

language contained in the vast majority of notices received by the public. The next

release of Online Notice Retrieval System, planned for later this year, will provide

online access to virtually all remaining notices by our public contact personnel and

will further enhance our ability to communicate effectively with our customers. The

Social Security Administration’s field offices and 800 number service provide additional assistance to people with questions about their notices.

In addition to making internal improvements to our process, we are firmly committed to involving the public in the evaluation of products and services that affect

them. In FY 2001 we will conduct a customer satisfaction survey to secure reliable

baseline data on customer satisfaction with notices targeted for improvement.

As early as 1987, the Social Security Administration tested notice language by obtaining public feedback, and we continue to rely on similar methods of involving the

public in notice improvement activities. In 1997, we conducted a series of focus

groups to test reactions to new notice formats to see if these new formats might help

with notice comprehension. This year alone, we have conducted over 24 focus group

tests to get the public’s reaction to a computational worksheet that we plan to add

to SSI notices and another 6 focus group tests to get public reaction to a work-related notice. Public input improves the final product by focusing our improvements

on public needs and expectations.

Two prime examples of the Social Security Administration’s use of public input

to improve our notices are the Cost of Living Adjustment (COLA) notice and the Social Security Statement. The Social Security Administration used comments from indepth interviews and focus group sessions with disability and retirement beneficiaries to improve the COLA notice by revising the language and improving its appearance through format and overall style changes. The readability of the notice

also was improved by enlarging the type size and changing the order of the information. The Social Security Statement reflects our customers’ requests to have the

earnings and benefit information presented in an easy to read and understandable

format. We simplified the explanations, reduced the number of pages from 6 to 4,

enlarged the type size, increased the amount of white space on the form, and reordered the information to make it flow better.

The GAO report recommended that the ‘‘Commissioner of Social Security direct

SSA officials to develop performance measures to hold the agency accountable for

making the needed comprehensive changes to its Social Security benefit adjustment

letters and SSI award and benefit adjustment letters. These measures should include indicators that clearly articulate the timetables and basis against which

progress to complete improvements can be tracked and, as further progress is made,

the effectiveness of the improvements.’’

Regarding this recommendation on performance measures, we looked to our annual customer satisfaction survey as the basis for a performance measure. In our

annual customer satisfaction survey, we ask respondents to rate the clarity of information we mail to them. Our most recent survey results indicate that 86 percent

are satisfied or very satisfied with their mail from the Social Security Administration. This is an improvement over prior years when the results were 65 percent in

FY 93.

Many of these respondents received very simple notices, and we are not able to

break out results for recipients of our more complex notices. Therefore, to develop

performance measures for notice clarity and beneficiary understanding of the most

complex notices, we need to secure benchmark information about how well our beneficiaries understand the current version of these notices. We will conduct a customer

satisfaction survey for these complex notices in fiscal year 2001 to obtain this information. Using the feedback obtained from the benchmark survey, we will pursue the

development of performance measures that address GAO’s concerns. As revised notice language is developed, we will conduct follow up customer surveys targeted to

measure the level of customer understanding of the revised notices and the degree

to which the desired performance has been achieved.

Mr. Chairman, the Social Security Administration has been known for some time

as a Government-wide leader in management, planning, and service to the AmerVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
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ican public. Customer service has always been the hallmark of the Social Security

Administration. The University of Michigan gave the Social Security Administration

an 82 for customer satisfaction in the 1999 American Customer Satisfaction Index

Survey—That is 8 points higher than the comparable private sector index. The 1999

Government Performance Project conducted jointly by Syracuse University’s Maxwell School of Citizenship and Government Executive Magazine ranked the Social

Security Administration at the top of 15 Federal Government agencies in one of the

most comprehensive studies of management performance ever conducted. We have

also won a prestigious award from CIO Magazine—a ‘‘2000 CIO–100 Honoree.’’ CIO

Magazine presents this award annually to the top 100 organizations that exemplify

the ‘‘best of the best’’ in various business practices. This year, the 100 honorees are

organizations that excel in customer service and customer relationship management.

We understand how vital our customers are, and we are excited about this special

recognition. But, in spite of these accolades, we, like all other public institutions,

face significant demands, changes and challenges. We recognize the problems with

some of our notices and appreciate the importance of correcting those problems. We

will maintain our focus on our customers and clearly explain our decisions so that

they can understand why and how we made them and what to do if they disagree.

We agree with the recommendation in the GAO report. We have already improved

the language and format of about ninety-two percent of all our notices that the public receives. In fact, GAO acknowledged in its report that, in spite of increasing

workloads and efforts to address Agency priorities, such as maintaining program integrity, the Social Security Administration has made major notice enhancements.

We have committed resources to improve the problematic notices.

As we implement these improvements, we will not lose sight of the needs of the

public for notices that are complete, clear, and accurate, and we will continue to

consult with the public as to how well we are meeting their needs. Improvement

to our notices continues to be a central element to our overall plan to provide highlevel service to the public.

Chairman S

There is a general vote on the floor. We should be gone only

HAW. Thank you very much.

f

about 15 minutes, so we will stand in recess until we return.

Thank you. [Recess.]

Chairman SHAW. Ms. Bovbjerg.

STATEMENT OF BARBARA D. BOVBJERG, ASSOCIATE DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY

ISSUES; HEALTH, EDUCATION, AND HUMAN SERVICES DIVISION, U.S. GENERAL ACCOUNTING OFFICE, ACCOMPANIED

BY KAY BROWN, ASSISTANT DIRECTOR

Ms. BOVBJERG. Thank you, Mr. Chairman. Before I start, I want

to introduce my colleague, Kay Brown, Assistant Director in our office, who is a customer service expert.

Chairman SHAW. Okay, thank you.

Ms. BOVBJERG. I am pleased to be here to discuss the letters that

Social Security sends to the public. Each year SSA sends millions

of letters to applicants for and recipients of Social Security and

Supplemental Security Income benefits. These letters tell people if

they are eligible to receive benefits or if their benefits are changing. Because they provide such important information, the letters

must be written in a way that can be clearly understood.

We have long been critical of SSA’s letters and have reported on

this topic twice in the past. We have now completed our most recent assessment of SSA’s progress in improving letters, and my testimony today summarizes these findings. We are also issuing a report to you today that provides a more detailed description of our

work. I would like to focus my remarks today on two areas: the

14

problems that make some letters hard to understand, and the status of SSA’s actions to fix them.

First the letters’ problems. We looked at four types of automated

high-volume letters, two each for Social Security and for SSI. In

each program we focused on benefit award letters and benefit adjustment letters because of their potential significance to the people

receiving them. We used writing consultants to help us assess the

clarity of communication and identify the types of deficiencies.

What we found was problematic. The majority of letters in each

of the four categories we reviewed did not clearly communicate on

at least one of four dimensions. The letters either failed to explain

SSA’s decision itself, the basis for the decision, the financial effects

of the decision on the individual’s benefits, or the recourse available to the individual. Our report details the frequency and specifics of the letters’ shortcomings and reproduces several actual letters as examples. While time doesn’t permit me to discuss all of

these in detail, I have brought one letter that by itself illustrates

several of the problems we have seen.

Chairman SHAW. Is the letter in the testimony?

Ms. BOVBJERG. You have one in your package in color, Mr. Chairman, but there is also a more elaborate one in the testimony itself.

You can see on the board, excerpts from an actual SSI Award

Letter. Such letters are sent to applicants who have been awarded

benefits for previous months but not for future months. We have

color-coded it by the type of information provided. Let me run

through these problems quickly.

As you can see in the yellow areas, which describe SSA’s decision, the letter first tells the recipient she is eligible for benefits,

then subsequently states that she is ineligible, which might seem

confusing to the average person.

The first blue area down by letter ‘‘C’’ explains that she is ineligible for disability benefits because, first, she is disabled, and second, she lives in Massachusetts. Neither seems to support the ineligibility decision. It is only later in the letter, in the blue area by

letter ‘‘D’’, that she can see that in fact it is her income that makes

her ineligible.

The pink area suggests that she is now going to receive 8 months

of benefits and a check for more than $3,000, but the letter later

states that only one month of benefits will be provided. At this

point the recipient may have no idea what amount of money to expect.

And then finally, the green area at the bottom incorrectly states

that if she thinks she might be eligible in the future, she must reapply before benefits can resume. This is misleading because,

under SSI rules, monthly benefits can resume without reapplying

if the individual becomes eligible again within a year.

I am not sure what the recipient of this letter would think, even

after reading it carefully. Letters like these upset and confuse people and waste everyone’s time as the recipients seek and SSA staff

have to provide additional explanation. SSA sends over 100,000

award letters like this oneevery year.

Let me now turn to SSA’s plans for fixing these letters. SSA has

indeed specifically targeted these problematic letters for improvement, yet little has been done, despite the longstanding nature of

15

1Social Security Administration: Many Letters Difficult to Understand (GAO/T–HEHS–94–

126, Mar. 22, 1994) 2Social Security Administration: Longstanding Problems in SSA’s Letters to the Public Need

to Be Fixed (GAO/HEHS–00–179, September 26, 2000).

the problems. Since we began examining letters in 1994, the agency has completed only one minor improvement to one of the four

types of letters we reviewed, and has announced plans to add clarifying language to other letters sometime this fall.

This small amount of progress stems from the relatively low priority SSA has placed on fixing these letters. Many of the needed

fixes, particularly for SSI letters, are complex. They require

changes to SSA’s computer systems, and systems staff has simply

not been made available to do this work. Even if SSA adheres to

its current plans, comprehensive improvements will take years to

achieve. If SSA is to make these improvements within a reasonable

period of time, it needs to place a higher priority on its letters.

In addition, we are recommending that the agency develop performance measures to hold itself accountable for achieving these

improvements. These measures should help foster greater urgency

to complete this project, and will help SSA and others both monitor

its progress and assess the effectiveness of changes made.

Failure to give more attention to this problem will allow poor

communications to continue and will detract from the quality of

SSA’s customer service.

Mr. Chairman, that concludes my statement. I would be happy

to answer any questions you have.

[The prepared statement follows:]

Statement of Barbara D. Bovbjerg, Associate Director, Education, Workforce, and Income Security Issues; Health, Education, and Human Services Division, U.S. General Accounting Office

Mr. Chairman and Members of the Subcommittee:

We are pleased to be here today to discuss the letters the Social Security Administration (SSA) sends to the public. Each year SSA mails millions of letters to applicants and recipients of the Old Age and Survivors Insurance and Disability Insurance programs, commonly referred to as Social Security, and the Supplemental Security Income (SSI) program. These letters tell the public whether they are eligible

to receive monthly cash benefits or whether their benefit amounts are changing. Because the letters contain important information affecting people’s everyday lives,

they need to be clearly written and easy to understand. Recognizing this, SSA has

pledged to the public that its letters will clearly explain the agency’s decisions so

that the public can understand how and why SSA made the decisions and what to

do if it disagrees.

We have long been critical of SSA’s letters. In 1994, we testified before this Subcommittee that many SSA letters, particularly those dealing with Social Security

overpayments, were difficult to understand.1 We found letters that left out information necessary to understand SSA’s decisions, presented information in an illogical

order, or failed to clearly explain how SSA had adjusted benefits. More recently, you

asked us to assess SSA’s progress in improving its letters. We have just completed

that assessment and are issuing our report on this subject to you today.2 My testimony, which summarizes the key findings of our report, focuses on (1) the problems

that make SSA’s letters difficult to understand and (2) the status of SSA’s actions

to fix them.

We focused our review on four categories of automated, high-volume letters to the

public: (1) letters awarding Social Security benefits, (2) letters adjusting Social Security benefits, (3) letters awarding SSI benefits, and (4) letters adjusting SSI beneVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00019 Fmt 6633 Sfmt 6602 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
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3SSA characterizes its letters as automated or manual. SSA considers a letter automated if

its personnel input transaction data, such as a death or earnings report, and SSA’s systems generate the letter without any other human intervention. If SSA personnel were involved in selecting paragraphs or providing individualized data, then SSA considers the letter to have been

manually prepared. 4SSA estimates that it mails about 250 million letters and forms annually to the public, including claimants, workers, employers, and government agencies, on a wide variety of issues. 5Our review did not include letters sent to individuals whose benefits were terminated because they had been determined to be no longer disabled.

fits.3 SSA mails about 14.2 million of these letters each year.4 We focused on these

letters because they reach a large number of people and convey important information on their eligibility for benefits or changes in the amount of their benefits issues

that can significantly affect their lives. We used writing consultants to help us develop the criteria to assess whether the letters communicated clearly and to verify

our assessment of the types of problems that occur in them. We also interviewed

SSA officials responsible for improving the agency’s letters and reviewed documents

on past and current evaluations of the letters and its initiatives to improve them.

In summary, our work showed that the majority of letters in each of the four categories we reviewed did not clearly communicate at least one of the following key

points: (1) SSA’s decision (that is, the action SSA was taking on a claim that

prompted the agency to send the letter), (2) the basis for SSA’s decision, (3) the financial effect of SSA’s decision on payments to the individual, or (4) the recourse

the individual could take in response to SSA’s decision. The lack of clarity was

caused by one or more problems, such as illogically sequenced information, incomplete or missing explanations, contradictory information, and confusing numerical

information. An unclear explanation of the basis for SSA’s decision that is, not clearly explaining the program rules or facts on which SSA’s decision was based was the

most widespread problem among the four categories of letters. We also found one

particular group of SSI award letters in which none of the four key points was clear.

SSA acknowledges that these letters contain the problems we identified and

agreed the problems have existed for years; however, for many of the problems, the

agency has not taken any corrective action and, overall, the agency has not placed

a high priority on improving its letters. Many of the problems we identified are not

amenable to quick fixes but, rather, will require a comprehensive revision of the language in the letters and rewriting the agency’s software applications that generate

them. Competing demands for computer systems resources have led SSA to repeatedly reschedule improvements to the Social Security benefit adjustment letters, and

a pending nationwide court case has led SSA to delay improvements to the SSI

award and benefit adjustment letters. SSA recently announced plans to improve its

Social Security benefit adjustment letters and has begun a major initiative to improve its SSI award and benefit adjustment letters. But it will be years before the

improvements are completed for most of these letters, even if there are no more

delays and SSA adheres to its current plans.

BACKGROUND

The Social Security program and the SSI program provide monthly cash benefits

to individuals who meet the programs’ eligibility requirements. In fiscal year 1999,

44.5 million persons received a total of $382.8 billion in Social Security benefits, and

6.6 million persons received $28.1 billion in SSI benefits. The rules affecting eligibility and benefit amounts in these programs can be complex. Once individuals are

determined to be eligible for Social Security or SSI benefits, changes in their circumstances, such as changes in the amount of their income, disability or marital

status, can affect their continuing eligibility for benefits or the amount of their benefits.5 When SSA learns of these changes either through its own review processes or

from individuals reporting changes in their circumstances to the agency SSA adjusts

individuals’ eligibility status or benefit amounts accordingly.

The process for improving SSA’s letters is complex as well. The responsibility for

improving letters is shared among various SSA offices, including the office responsible for customer service, which helps identify problems, and the program offices,

which are responsible for further analyzing the problems and drafting revised language. The Office of Systems, however, plays a key role because implementing

changes often requires systems programmers to rewrite one of the multiple software

applications that SSA uses to generate letters. Each software application has its

own programmed logic to generate letters and its own language database. Depending on the particulars of a transaction, each application is programmed to select appropriate paragraphs from among the numerous paragraphs in its language database, many of which were written for use in multiple situations. Once the paraVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00020 Fmt 6633 Sfmt 6602 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
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graphs are selected, the software is programmed to complete paragraphs by filling

in case-specific information from SSA’s master records and to sequence paragraphs

to assemble letters. These master records contain account data for every beneficiary.

Problems in SSA’s Letters Limit Their Understandability

Many of SSA’s letters in our review do not meet the agency’s own communication

standard, and do not meet generally accepted principles of good communication. Social Security award letters, Social Security benefit adjustment letters, SSI award

letters, and SSI benefit adjustment letters do not clearly communicate one or more

of the following key points: SSA’s decision (that is, the action SSA is taking on a

claim that necessitated the letter), the basis for its decision (that is, the program

rules and facts on which SSA based its decision), the financial effect of its decision

on payments to the individual, and the recourse the individual has in response to

SSA’s decision. The unclear communication was caused by many of the same problems we identified in SSA’s letters in 1994, such as illogically sequenced information, incomplete or missing explanations, contradictory information, and confusing

numerical information.

Table 1 presents what we consider to be the most significant problems, because

of either their frequency or their potential to adversely affect the individuals receiving the letters.

Table 1—The Most Significant Problems in Four Categories of SSA Letters and Their Estimated Frequency

Key point

Social Security letter SSI letter

Award Benefit adjustment Award Benefit adjustment

Decision 80% of cover

letters do not

include all

decisions that

affect payments.

Basis for decision100% illogically

sequence

explanations of

SSA’s decisions.

100% do not

explain

relationship

between program

rules and benefit

amounts.

86% do not clearly

explain

relationship

between program

rules and changes

in benefit

amounts.

Financial effect86% lack clear

explanations of

adjustments.

55% lack clear

statement of

timing or amount

of change in

benefits or

otherproblems.

Recourse 95% do not state

how to appeal.

24% do not fully

state options for

repaying

overpayments or

how to appeal.

Note: We used two different approaches to quantify the frequency of problems in

these letters. For the letters awarding Social Security and SSI benefits, we identified specific problems and obtained information from SSA about the number or percentage of letters that included these problems. For the letters adjusting the amount

of Social Security and SSI benefits, we reviewed a statistical sample of 1 day’s production of letters.

As the table indicates, we found a variety of problems in the four categories of

letters.

• SSA’s decision was difficult to understand in Social Security benefit adjustment

letters because important information was not explained in the cover letters but,

rather, was buried in the attachments or not explained at all. For example, a cover

letter informed a claimant that she had been overpaid about $600 but it requested

18

6This situation occurs when individuals’ circumstances change while they are waiting for

SSA’s eligibility decision on their application for benefits. Their circumstances make them eligible to receive benefits for 1 or more months after they applied for SSI, but a change in their

circumstances makes them ineligible for SSI benefits in the current month. A common scenario

involves disabled individuals who meet the SSI program’s income limit only until they receive

Social Security Disability Insurance benefits. Their SSI payments stop once these benefits cause

them to exceed the SSI program’s income limit.

that she repay about $2,200. The explanation for the different amounts SSA’s decision to also recover a prior overpayment was buried in the attachment.

• Another letter mentioned three different overpayment amounts without explaining the differences.

• The basis for SSA’s decisions were often difficult to understand because the program rules or facts on which the decisions were based were explained in complex

language that was difficult to follow, were presented in illogical order scattered

throughout letters, or were not fully explained. For example, no SSI award letter

explained the relationship between program rules and the amount of the SSI benefit. An SSI award letter informed a claimant that she was awarded benefits for

July 1999 through November 1999 but that she would receive a benefit for October

and November lower than for the earlier months. The letter did not explain why

her benefit was reduced.

• The financial effect of SSA’s decision on payments to claimants was difficult to

understand in most Social Security and SSI benefit adjustment letters because of

conflicting information about when adjustments would occur or whether benefits

were increasing or decreasing and because of unexplained numerical information

used to support SSA’s computation of benefit adjustments. For example, a worksheet attached to a Social Security benefit adjustment letter included computations

showing that, on the basis of the claimant’s earnings, SSA should have withheld

about $2,700 in benefits. But on the very next line, the worksheet states that SSA

should have withheld about $2,000 in benefits. The letter did not explain the $2,000

figure or the difference in the two amounts.

• The recourse available to claimants in response to SSA’s decisions on their

claims was difficult to understand in Social Security award and benefit adjustment

letters because of incomplete information. For example, the cover letters for some

of the benefit adjustment letters instructed individuals to immediately repay the full

Social Security overpayment without informing them of other repayment options

discussed in the letters’ attachments. The Social Security award letters failed to inform claimants that if they choose to appeal SSA’s decision, they have to do so in

writing.

Our report discusses these problems in detail, with examples of actual letters.

Now to illustrate problems in SSA’s letters, I would like to discuss one particular

type of SSI award letter ones sent to applicants who have been awarded benefits

for previous but not future months. I have chosen an example of this type of letter

not because it is representative of all SSA award andbenefit adjustment letters

which, given the huge number and types of letters SSA issues, no one example could

be but because it illustrates in one letter problems in clearly communicating all four

key points. Also, although SSA has long been aware of problems in its SSI award

letters, the agency did not know about the particular problems in this type of letter

until we brought them to its attention.

Figure 1 shows key excerpts from a typical letter, sent on October 13, 1999, to

a disabled adult who was awarded benefits for previous months but not future

months.6 This example illustrates the numerous contradictions, illogically sequenced

explanations, and incorrect statements common to these letters. In 1998 and 1999,

more than 100,000 individuals, or about 13 to 15 percent of all SSI awardees, received benefits only for previous months and thus would have gotten a similar letter.

19

7This incorrect statement occurs in these letters only when individuals receive more than 1

month’s past due benefits—a common scenario, according to SSA.

Figure 1: Confusing Statements From an Actual SSA Letter

Note: Bold typeface added by GAO.

SSA’s decision is unclear because the letter shown in figure 1 goes back and forth

about whether the applicant is eligible or ineligible for SSI. For example, the first

sentence in the letter (‘‘A’’) informs the applicant that she is eligible for SSI benefits,

as does the first sentence on the second page of the letter (‘‘E’’). She is also told

on a subsequent page that her benefits will continue if she is still disabled in the

future (‘‘H’’). But elsewhere in the letter, she is told that she is not eligible for SSI

(‘‘F’’ and ‘‘G’’) and that she will not be receiving any more payments (‘‘C,’’ ‘‘D,’’ and

‘‘E’’).

The basis for SSA’s decision is unclear as well, because the letter illogically tells

the applicant that she cannot receive any more payments because she is disabled

and living in Massachusetts (‘‘E’’). Also, this illogical reason for nonpayment is listed

before the actual reason for nonpayment namely, her income (‘‘F’’).

The financial effect of SSA’s decision is unclear, because the letter makes contradictory statements about the months for which benefits are payable. First, the

letter informs the applicant that she will receive $3,367.36 in benefits for March

through October 1999 (‘‘B’’ and ‘‘D’’), but later it incorrectly states that SSA can pay

benefits only for 1 month March 1999 (‘‘E’’).7

Finally, the recourse available to the claimant is unclear, because the letter incorrectly informs her that she must file a new application before she can receive any

more benefits (‘‘I’’). The letter does not explain that under SSI program rules,

monthly benefits can resume without the need to file a newapplication if she becomes eligible again within 12 months.

20

8 Because of recently enacted legislation, Public Law 106–182, that eliminated earnings-related reductions in benefits for beneficiaries who have reached full retirement age, the volume

of Social Security benefit adjustment letters sent to individuals will decrease in the future, but

SSA has not determined exactly by how much.

NEEDED IMPROVEMENTS ARE STILL YEARS AWAY

SSA has been aware for several years of the more serious problems we found with

three of the four categories of letters we reviewed those adjusting Social Security

benefits, those adjusting SSI benefits, and those awarding SSI benefits. The agency

considers sending clear letters an important element ofcustomer service, and it specifically targeted these letters for improvement, yet it has taken only limited actions

to improve them. Its efforts have focused primarily on the changes that are the easiest to complete. The more serious problems we found require more comprehensive

revision of language andrewriting of software applications. Planned changes have

been repeatedly rescheduled because SSA did not have the computer systems resources available to implement them because of other priorities. SSA has recently

announced plans to make the needed improvements to these three categories of letters. However, SSA has not established meaningful performance measures to monitor its progress in improving the letters.

SSA Has Made Little Progress in Improving These Letters

Since at least the early 1990s, SSA has known about problems with the Social

Security benefit adjustment letters, the SSI award letters, and the SSI benefit adjustment letters that we identified as being the most problematic. The agency

agrees that these letters are among the least understandable and most sensitive of

the agency’s high-volume mailings. Annually, SSA sends out about 3.5 million Social

Security benefit adjustment letters, 0.6 million SSI award letters, and 3.3 million

SSI benefit adjustment letters.8 In various strategic and performance plans, SSA

has identified sending customers clear letters as an element of good service. Beginning with its fiscal year 2000 performance plan, SSA specifically targets improving

these three letters as a strategy that would increase customers’ overall satisfaction

with the agency. Improving its letters is listed as one of the agency’s key initiatives.

Despite acknowledging numerous problems with the three categories of letters,

SSA has completed only one minor improvement to one letter the Social Security

benefit adjustment letter. As noted in table 1, we found that 86 percent of these

letters lacked a clear explanation of adjustments to benefits. In July 1999, SSA

added a worksheet to this letter to show how the agency computed the amount it

underpaid or overpaid individuals on the basis of their earnings. However, SSA officials view the worksheet as an interim improvement because SSA did not rewrite

the master record. The master record holds data on each individual and would have

to be expanded to hold additional data so that it could provide the appropriate information to support the worksheet. We drew our sample of Social Security benefit adjustment letters after SSA began including worksheets with these letters. We found

the worksheets helpful to some extent in explaining how individuals’ earnings contributed to SSA’s decision that it had underpaid or overpaid them. However, the

worksheets sometimes did not adequately explain some of the adjustments SSA

made when computing underpayments or overpayments, in part because doing so

would require rewriting the master records.

In addition to the completed change described above, SSA recently began to address two of the problems we identified during the course of our present work. First,

the agency has taken steps to include language that had been omitted from Social

Security award letters informing individuals of the form to use to appeal the agency’s decisions. After we brought this problem to SSA’s attention, SSA officials told

us that the responsible program office has developed revised language that the Office of Systems plans to implement in November 2000. SSA has also initiated action

to correct the error in SSI award letters sent to individuals eligible for benefits in

previous months but not current benefits, shown at ‘‘I’’ in figure 1. SSA officials told

us that when the agency releases its next set of SSI systems changes in October

2000,they plan to add language to the letters to correct this problem.

Office of Systems officials told us that from a systems standpoint, these types of

problems are the easiest to correct because they involve a straight substitution of

language one paragraph replaces another paragraph that had been used for the

same situation. This type of revision is relatively straightforward because the software logic for selecting the paragraph for insertion into a letter does not have to

be revised. SSA could therefore act relatively quickly to correct these two problems.

21

It Will Take Years for SSA to Make Comprehensive Improvements to Letters

SSA has made less progress in correcting problems that are more difficult to fix.

As shown in table 2, the other problems we found would require significant work

to revise the language of the letters and to rewrite the master records and software

applications.

Table 2:—The Comprehensive Improvements Needed for Selected SSA Letters

Letter Improvement

Social Security benefit adjustmentRevise language, rewrite program’s master record, and rewrite

softwareapplication so that Cover letter discloses all decisions

discussed in attachment.

• Work-related earnings rules are co-located and logically

sequenced.

• Letter clearly explains decision’s effect on payment to

individual, and.

• Letter completely explains available recourse.

SSI award Revise language, rewrite program’s master record, and rewrite

softwareapplication so that.

• Letter adequately explains the basis for the decision and .....

• Letter explains the relationship between program rules and

benefit amount.

SSI benefit adjustment Revise language, rewrite program’s master record, and rewrite

softwareapplication so that.

• Letter adequately explains a decision’s effect on payment,

particularly how and when adjustments will be made for past

months’ overpayments or underpayments.

Office of Systems officials told us that the actions the agency would need to take

to make the comprehensive changes that the three letters need are the most complicated from a systems perspective because they involve extensive work to revise

or develop new paragraph language, to rewrite the software application including

the selection and sequencing criteria for using the language and to rewrite the programs’ master records to hold additional data that may be necessary to support proposed language changes.

SSA’s ability to make these comprehensive improvements to the three letters depends on the agency’s allocating significant systems resources. When allocating systems resources, SSA appropriately gives highest priority to projects that help the

agency maintain operations essential to its mission or that it needs to undertake

in order to implement legislative changes to the Social Security and SSI programs.

Resources not committed to these efforts are available for SSA to use for discretionary projects, and senior officials collectively determine which discretionary

projects the agency’s systems staff will work on, based on each project’s ranking and

expected contribution to SSA’s strategic objectives. However, the relative priority

SSA gives projects can change. For example, SSA may decide to shift priorities and

discontinue, delay, or deemphasize a specific project to undertake others in cases in

which SSA does not have systems staff available.

Social Security Benefit Adjustment Letters

SSA has long had plans to make comprehensive improvements to one of the categories of letters the Social Security benefit adjustment letter. According to SSA

documents, by 1996, SSA had developed and tested in focus groups comprehensive

language changes for this letter. However, SSA’s documents showed that since developing the language, the agency has repeatedly rescheduled the systems work required to implement the new language. Officials from SSA’s Office of Systems told

us that their computer systems staff did not work on projects at the scheduled times

because the agency had had to divert computer programmers to other more pressing

projects, such as those required to implement significant program changes resulting

from legislation and to ensure that SSA’s computer systems were year 2000 compliVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
22

9For example, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

(Public Law No. 104–193) made major changes to the SSI program. Among other things, it revised the criteria under which children and noncitizens are eligible for benefits and added restrictions governing the payment and use of certain large retroactive benefit amounts. 10Key initiatives requiring systems work and Customer Targeted Work must provide a significant return on investment or help meet agency strategic goals. However, to be given the higher

priority of Customer Targeted Work, a sponsoring component is required to substantiate the

need for extra attention and prioritization. 11Ford et al. v. Apfel, No. CV–94–2736 (E.D.N.Y., Jan. 13, 2000).

ant.9 They told us that the agency, with the emergence of workloads arising from

legislative changes, had to shift priorities away from working on improvements to

letters.

In July 2000, an SSA official told us that the responsible program office had recently requested that SSA senior officials designate the project to improve Social Security benefit adjustment letters as Customer Targeted Work. This is a relatively

new category for the use of discretionary resources andwould give the project a higher priority than it has had before.10 Although SSA is in the early planning stage

of this effort, the Office of Systems has established a plan for completing the more

comprehensive improvements by July 2002. However, because SSA’s decision is recent, we did not evaluate the revised approach.

SSI Letters

SSA has not made comprehensive improvements to either type of SSI letter and

has only recently begun developing action plans for improving them. SSA officials

told us that they postponed plans to improve SSI award and benefit adjustment letters pending the outcome of the recently decided court case,a class action law suit

that an SSI recipient initiated. In that case, the court upheld the plaintiffs’ claim

that SSA’s letters denied recipients due process because the letters did not adequately explain the basis for SSA’s decisions. The court ordered SSA to revise its

automated SSI financial eligibility letters including its SSI award and benefit adjustment letters to more clearly communicate essential information to their readers.11 SSA established a workgroup to review its SSI letters and to determine the

changes that were needed to improve them. In December 1999, the SSA Commissioner signed a decision paper in which he approved the workgroup’s recommendations to make comprehensive changes to SSI letters.

Improving SSI letters will take time. The workgroup recommended that SSA implement the recommendations in phases, concentrating first on better explaining

how benefit amounts are determined. SSA has begun work on some of these

changes. In February 2000, SSA drafted and tested with some SSI recipients a prototype worksheet to be added to SSI award and benefit adjustment letters that

shows how SSI benefits are computed in the least complex cases that is, the 90 percent of cases in which SSI recipients have no income or only unearned income, such

as Social Security benefits. SSA plans to add the worksheet to the SSI letters by

July 2002. SSA officials estimated that it could take 10 years to implement the full

range of planned improvements.

SSA Does Not Have a Means to Measure Progress in Improving Letters

Despite acknowledging problems with its letters, SSA currently has no performance measures for monitoring its progress toward improving them. In the past, SSA

surveyed customers about their overall satisfaction with the agency’s letters and

monitored the percentage of customers rating the clarity of SSA’s notices as excellent, very good, or good. The agency, however, found that the information it collected, which was a measure of general satisfaction with the letters, was not useful

in identifying ways to improve letters, so SSA discontinued these surveys. Instead,

SSA now relies on a relatively newprogram to help it target a few specific types of

letters each year and develop action plans for improving them. This program the

Market Measurement Program uses a variety of initiatives, such as special studies

and focus groups, to gather information on the full range of services SSA provides

to help the agency improve customer service overall. According to SSA’s fiscal year

2001 performance plan, the agency plans to establish a new indicator to monitor improvements to its letters at a later point.

CONCLUSION

Although SSA has been aware for many years of some of the more serious problems with its letters, it has not corrected them. The agency’s recently announced

plans to improve the Social Security benefit adjustment letter and its SSI award

and benefit adjustment letters will require significant computersystems resources

23

and will take years to complete. If SSA is to improve its letters within a reasonable

period of time, it needs to allocate the necessary systems resources for these improvements. To do this, the agency will need to better anticipate and plan for the

varied demands on its computer systems’resources and place a higher priority on

improving its letters.

The agency will also need to develop appropriate performance measures with

which to hold itself accountable to the public for achieving these improvements.

These measures should help SSA monitor its progress in adhering to the proposed

timetables to help the agency stay on track. In addition, because past changes to

letters have not always significantly improved clarity, SSA should develop other

measures to assess whether changes to the letters have achieved the intended results.

Because failure to implement the needed improvements will mean continued poor

service to the public in this area, we recommend that SSA develop performance

measures to hold itself accountable for making the needed comprehensive changes

to its letters. These measures should include indicators to allow SSA to track its

progress in making improvements and to assess the improvements’ effectiveness. In

commenting on our report, SSA agreed with our recommendation and expressed its

commitment to making the needed improvements in these letters as quickly as possible. SSA also outlined its plan for developing performance measures for assessing

beneficiaries’ understanding of its problematic letters.

Mr. Chairman, this concludes my prepared statement. I would be pleased to respond to any questions you or other Members of the Subcommittee may have.

* * * * *

For further contacts regarding this testimony, please call Barbara D. Bovbjerg at

(202) 512–7215. Others who made key contributions to this testimony include Kay

Brown, Jacquelyn Stewart, Ellen Habenicht, Valerie Melvin, James Wright, Michael

Alexander, Jay Smale, Ann McDermott, and Patrickdi Battista.

RELATED GAO PRODUCTS

Social Security Administration: Longstanding Problems in SSA’s Letters to the

Public Need to Be Fixed (GAO/HEHS–00–179, September 26, 2000). [Attached report is being retained in the Committee files.]

Social Security Administration: Many Letters Difficult to Understand (GAO/

HEHS–94–126, Mar. 22, 1994)

the General Accounting Office. What is the problem of correcting

Chairman SHAW. Mr. Halter, you listened to the testimony from

f

these letters? I mean, it just doesn’t make any sense that all of

these statements would be——

And I assume, Ms. Bovbjerg, these were all in the same letter?

Ms. BOVBJERG. All of this in one letter, yes.

Chairman SHAW. Do you have an explanation for any of that? Is

this is the first time you have seen it? It is not fair to ask you the

question.

Mr. HALTER. Well, actually, it is the first time I have seen it in

a readable fashion, here, arriving at the hearing today. But let me

try to address your more general point, Mr. Chairman, which is,

how did we get here?

The fact is that for the last eight years we have been working

on improving some extraordinarily complicated notices. Thirty percent of our notices needed improvement in FY 1993, and customer

satisfaction with those notices was at about a 65 percent rate. Over

the least 7 years, the Social Security Administration has corrected

problems with 22 percent out of that 30 percent, leaving 8 percent

of our notices still to be addressed. The GAO, very appropriately,

focused on letters which in our universe of notices are the most

complicated and the ones that are most prone to being very comVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
24

plicated for the reader to understand. This particular letter, with

respect to SSI, is probably the category that is the most difficult

to understand.

The complications arise from two different levels. The first is the

SSI program itself is extraordinarily complicated, and as I noted in

my testimony, the range of individual circumstances that could

apply to any individual beneficiary is virtually infinite when you

take all of the different variables and how many different possibilities for each variable there are. When you put together a notice in

an automated fashion to deal with that, you have one that is, by

its nature, going to be complex.

Now, I will say that we have focused on this over time. We are

focused on it now and have applied the resources that will be necessary to fix this. However, when you have a program with so

many variables in it and you are trying to send something out dealing with a complicated program, it is going to be complicated to

deal with.

Chairman SHAW. I understand that. But let me ask maybe a simpler question. What is this letter trying to tell somebody?

Mr. HALTER. Well, in this case, it is trying to tell the individual

recipient what SSI benefit they are entitled to and how much that

benefit is, when the payment is going to start, and when, in this

case, it is going to stop.

Chairman SHAW. Why don’t you just do that?

Mr. HALTER. Well, we do that, as you know, Mr. Chairman, millions of times a year, and when you put together an automated

Chairman SHAW. It worries me that we are getting so automated

that somebody just sits at a computer, picks out paragraphs and

tries to put them together that does not really communicate.

Mr. HALTER. Well, in fact, the way this works is they don’t pick

out those paragraphs personally. They type in the data that is necessary, and then the system produces a response.

Now, to correct that, Mr. Chairman, what we have to do is go

in and put together revisions to that program, and that is, in fact,

what we have under way now.

Chairman SHAW. You know, each of us in Congress, we get asked

the same question over and over again, and we all put together—

I imagine every member of Congress does that—you put together

paragraphs explaining your position, and those paragraphs are selected in order to answer questions thatcome into the office. Why

don’t you all just do it that way?

Mr. HALTER. Well, what I will do for you, Mr. Chairman, is give

you for the record the list of variables that can change each of

these letters, and you will see that we are talking about literally

hundreds of data items. I understand the letters that you are talking about, Mr. Chairman, because Iworked on Capitol Hill and I

helped put together those letters, and I understand what you are

talking about. They are very straightforward and they provide your

position on a particular issue, but your position on a particular

issue probably does not have 10,000 different variants. You probably have apretty straightforward position on the issue that someone is writing you about.

[The following was subsequently received:]

25

SSI Notice Variables

This is a highly complex process because notices reflect past or present changes

and reflect the results of those changes. There is virtually no limit on how these

items can be mixed and matched, meaning that the SSI notices must be able to handle an almost unlimited array of possibilities with a large number of variables. For

example, a case can have different income, resources, and living arrangements from

month to month, coupled with resulting newly identified overpayments and/or underpayments. Variables that affect SSI notices are as follows:

I. Computational Variants—31

• Quarterly Accounting applies prior to 4/1982 • Retrospective Monthly Accounting applies effective 4/1982 • New computation rules for Spouse-to-Spouse deeming effective 4/1982 • New computation rules for Parent-to-Child deeming effective 4/1982 with three

formula • Different rules for needs-based assistance prior to 8/1988 • Computation rules for Impairment-Related Work Expense prior to 12/90 • Different rules for treating needs-based assistance depending on which person

it is• To compute any month, may need eligibility, payment, windfall eligibility, windfall payment computation • Two eligibility, payment, windfall eligibility, windfall payment computations

needed for individuals with ineligible spouses • Computation for COLA-Coordination of Title II, Value-of-the One-third Reduction, and In-Kind-Support • Special computations when one member of a couple is eligible and the other is

not• Rules when one member of a couple is in one eligibility category and the other

in a different category • Special rules when a claimant is in multiple eligibility categories (aged, blind,

disabled) • Optional Supplementation default processes that apply when one member of a

couple is dead or when an ineligible spouse has left a household • Exception computation of State supplementation for Essential Persons • Different computation rules for in-kind support based on SSI type of claim • Payment rounding rules • Special computation rules under Section 1611(e)(1)(e) • Special computation rules under Section 1611(e)(1)(g) • Optional supplementation considerations in 1611(e)(1)(g) default periods • State supplementation rules when 1619(a) applies • Application of the Livermore Court decision • Special rules for Maine’s disregards (and when a couple) • Rules that apply when a State has terminated Federal supplementation • Computation of Vermont’s State Countable Income • Computation rules for Presumptive Disability • Rules for application of Blind Countable Income • Computation of payment amount based on windfall offset • Mandatory computations and specifically adjustments for payment computation • Computation rules under trial work periods • 2/3 rule for Child Support

II. Income Types, Disregards and Exclusions

INCOME TYPES (PARTIAL)

• State or Local Assistance Based on Need

• Refugee Cash Assistance

• AFDC

• General Assistance From Bureau Of Indian Affairs

• Disaster Relief

• Veterans Benefits Based on Need (Paid Directly or Indirectly as a Dependent)

• Veterans Payments Not Based on Need (Paid Directly or Indirectly as a Dependent)

• Social Security

• Black Lung

• Railroad Board Benefits

• Office of Personnel Management

• Pension

26

• Unemployment Compensation

• Workers’ Compensation

• Interest

• Dividends

• Royalties/Honoraria (Unearned)

• Rental/Lease Income Not From a Trade or Business

• Alimony

• Child Support

• Other Bureau of Indian Affairs Income

• Sick Pay (Earned)

• Sick Pay (Unearned)

• Wages

• Self-employment Income

• Other Income Based on Need

• Other Income or Support Not Previously Mentioned

INCOME DISREGARDS

• $65 per month plus 1⁄2 remainder earned income disregard

• $20 per month general income disregard

INCOME EXCLUSIONS

• Student Child Earned Income Exclusion

• Blind Work Expense

• Income excluded under approved plan for self support

• Net loss from self-employment

• Income Related Work Expenses

RESOURCE TYPES

• Vehicles

• Life Insurance

• Household Goods and Personal Effects (Cash)

• Financial Institution Accounts

• Stocks and Bonds

• Promissory Notes/Loans/Property Agreements

• Real Property/Business Property or Equipment

RESOURCE EXCLUSIONS

• Principal place of residence

• Auto used for medical/other approved needs

• Set aside for burial expenses

• Excluded under a Plan for Achieving Self Support

FEDERAL/STATE LIVING ARRANGEMENTS

• A Federal Living Arrangement (FLA) of A is used primarily when a person is

considered to be living in his /her own household or when no other FLA code applies.

• An FLA of B is used when an individual lives in the household of another and

receives food and shelter from inside the household.

• An FLA–C is used for a child under age 18 or under or a ‘‘protected’’ student/

child under age who lives in the same household as an ineligible parent and who

is not subject to the value of the one-third reduction.

• An FLA–D applies to an individual who lives in a public or private medical institution throughout a month and Medicaid is paying more than 50 percent of the

cost of the individual’s care or, effective

• 12/96, a child under 18 subject to the $30 payment limit while in a medical care

facility in which

• private insurance (or a combination of private insurance and Medicaid) pays

over half the cost of care.

• The following States have at least 1 State living arrangement: California , Delaware, District of Columbia , Hawaii, Iowa, Maine (prior to 4/96), Massachusetts,

Michigan, Montana, Nevada, New

• Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, Washington,

Wisconsin (prior to 1/96).

27

III. Payment Status Codes (Partial list)

• Non-pay Codes: Many of these are initial claim denial codes—both medical and

non-medical denials, such as an aged claim denied for failure to prove age or claimant is not a citizen or lawfully admitted to the US. • Suspense codes: These indicate a recipient was eligible to receive payment, but

has since become ineligible, often temporarily, because of some reason (e.g. whereabouts unknown.) Once resolved, SSI payments can usually resume. • Termination codes: These codes indicate the record has been terminated (e.g.

death).

ELIGIBLE BUT NOT PAYABLE

E01 Eligible but nothing is payable

E02 Eligible for benefits but not due a payment (applies to first month of eligibility only)

BENEFITS NOT PAYABLE

N01 Claimant has excess income or Section 1619(b) eligible—no payment due.

N02 Claimant is a resident of public institution.

N03 Claimant is absent from the U.S.

N04 Claimant’s nonexcludable resources exceed title XVI limitations.

N05 FO is unable to determine eligibility for some month(s) of a period of nonpayment OR failure to provide information for children overseas.

N06 Claimant failed to file for other benefits.

N07 Cessation of recipient’s disability.

N08 Cessation of recipient’s blindness.

N09 Claimant refuses to accept vocational rehabilitation.

N10 Claimant failed to comply with treatment (DAA). (Obsolete)

N11 Sanction Suspense month (DAA). (Obsolete)

N12 Claimant voluntarily withdrew from SSI program.

N13 Not a citizen of the U.S. or not an alien lawfully admitted to the U.S.

N14 Aged claim denied for age.

N15 Blind claim denied, applicant not blind.

N16 Disabled claim denied, applicant not blind.

N17 Failure to pursue.

N18 Failure to cooperate.

N19 Claimant has voluntarily terminated participation in SSI program.

N20 Claimant failed to furnish a required report or required evidence.

N22 Claimant is an inmate of a penal institution.

N23 Claimant is not a resident of the U.S.

N24 Claimant has been convicted of a felony of fraudulently misrepresenting residence in order to receive benefits/services (SSI, Medicaid, AFDC, foodstamps) simultaneously in two or more States.

N25 Claimant is fleeing to avoid prosecution for, or custody or confinement after

conviction for, a crime which is a felony (or in New Jersey, a high misdemeanor)

under the laws of the place from which he/she flees, or is violating a condition of

probation or parole imposed under Federal or State law.

N27 Termination due to SGA—1619(a) or 1619(b) no longer involved.

N30–N51 Medical Denials. (various)

P01 Potentially Eligible—SGA involved. (Obsolete)

BENEFITS PAYABLE, BUT SUSPENDED

S05 Prerequisite payment month development pending to determine eligibility for

special 1619(a) payments to a disabled individual. S06 Claimant’s whereabouts unknown.

S07 Check(s) returned for miscellaneous reasons.

S08 Representative payee development pending.

S09 Temporary institutionalization (TI) systems default.

S10 Claimant has refused to receive payments through direct deposit.

S20 Potential Rollback case or disability decision made prior to July, 1973.

S21 The recipient is presumptively disabled and has received 6 months’ payments.

BENEFIT ELIGIBILITY TERMINATED

T01 Death of claimant.

T20 Received duplicate payment based on two different numbers.

28

T22 Received duplicate payment based on more than one SSR established with

the same number or different numbers.

T30 Manual termination (payment previously made).

T31 Systems termination (payment previously made).

T50 Manual termination (no payment made).

T51 Systems termination (no payment made).

IV. Payment Variants

• Different rules prior to 4/1982

• Goldberg v Kelly: temporary & permanent payment protection

• Different rules for collection of overpayments

• Payment of windfall offset due amounts in Current Computation Month

• Collection of emergency advance payments/immediate payments

• Underpayments to survivors

•

Chairman S

Mr. H

Dedicated accounts & installments underpayments

ALTER

HAW

. But this program, and the law, the law that we are

. I would like to think so.

f

talking about here with respect to SSI, is complicated in its very

nature, and we would agree with you, Mr. Chairman, that we need

to work on these notices. That is what we are doing.

Chairman SHAW. Now, I want to—we are getting to the nut of

what I really want to talk about, and I want you and Ms. Bovbjerg

both to address the law. Is the law the problem? Anyone who has

gone to get a loan for a home within the last few years, I don’t care

if you are an attorney, an accountant, or a realtor or who you are,

by the time you sign all those papers, you have no idea what is

going on, that you just get to be where you are signing because we

require so many disclosures, and we over-disclose to thepoint that

I think the borrower is just totally confused and just wants to just

get out of the closing office, so that they can go on with their life.

Is the law the problem here? Is the law so complex that we should

really go back and take a look at it?

Mr. HALTER. Mr. Chairman, I would argue to you that the law

is a part of the problem, absolutely.

I would not wish to come before you and absolve our administration from all culpability in creating complicated notices. We are

going to work on this.

I would say to you that the fact is that we have limited resources

as an organization, as you very well know, and we have focused our

resources particularly in the systems area on matters that have

been higher priority.

Chairman SHAW. Don’t you have people in-house that can redo

the system as far as that is concerned, without spending a whole

bunch of money? Now, if money is the problem, then we have to

address that. But I don’t see where putting together the right kind

of program, computer program to respond, should be all that complicated that we can’t do that.

Mr. HALTER. I would argue, Mr. Chairman, that it is more complicated than even I initially realized when I first sat down to prepare for this hearing, that in fact, doing the types of systems

changes that we are talking about are going to require a great deal

of time and effort.

To your question, your very direct question about is it a resource

issue or just putting people up against it, I would argue to you that

29

it is both and that they are related, that the budgets that we have

been provided, at least that I have looked at in the last six years,

if additional resources had been available to Social Security, we

would have been addressing this long before this point. The fact

is——

Chairman SHAW. Have you come to us and asked for additional

funds in order to do this with specific requests?

Mr. HALTER. Mr. Chairman, we have asked for, in the President’s budget——

Chairman SHAW. I think I have been very forthcoming in this

Committee in working with the Social Security Administration.

Mr. HALTER. Absolutely, yes, sir. I absolutely agree with that.

But let me just point out that over the last six years, the President’s budget request, relative to what has been appropriated, we

are talking about a billion dollar difference in our administrative

budget over that six-year period. And I would argue to you, just

very straightforwardly, that if those monies had been put in place,

that this problem would have been addressed much earlier. We

have limited systems resources. The Congress, just this past

year,passed the retirement earnings test elimination, and we, as

you know, took resources, diverted them to implementing that legislation, as we should. Every time we come up with a new priority

to implement, we have to divert resources away from the work that

we had scheduled.

Chairman SHAW. The return of the money on the earnings penalty, this Committee reacted to that in getting more money because

we understood that was necessary, and we knew that was very important.

Ms. Bovbjerg, could you comment on some of the things that Mr.

Halter has just talked about as to what is your thought with regard to what has to be done? I can tell you everybody in here under

40 knows more about computers than I do. So, speak in terms that

I can understand, please.

Ms. BOVBJERG. That should be easy for me because I am not a

systems expert either.

I want to start off by saying that we do recognize and acknowledge the progress that the Social Security Administration has

made with other notices. Indeed, they say 92 percent of 300,000 letters have been fixed; a lot of that is the Social Security statement,

and we like to think that our recommendations had some bearing

on the improvements in that statement that took place in the past

year.

What we are saying about these notices is that just because it

is a small percentage left to fix, and they are hard to fix, doesn’t

mean they shouldn’t be fixed and shouldn’t be taken more seriously. There are 14 million of these going out a year, and these notices really affect people very directly. Thesenotices can be reducing

peoples’ benefits, and if they can’t understand the letter, it is difficult for them to understand what is going to happen to their income. It is a whole different level of stress for people than receiving

the Social Security statement, for example. So we think these letters are very important to focus on.

We are concerned because SSA has recognized problems with

these particular letters, and has been talking about doing someVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00033 Fmt 6633 Sfmt 6602 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
30

thing with them for years now, and there has been no timetable

for doing this.

The letters keep being pushed back further down the priority

list. Our concern is that there are complicated fixes that have to

be made. We don’t disagree at all that this is a complex program,

and it is difficult to explain some of the decisions that are made

in the SSI program, but we believe it is really important to start

making these fixes.

I also want to say that it is my understanding that it is not entirely a systems problem; program staff need to figure out what the

problem is, write the language—the actual language in the paragraph that would address it—figure out how the paragraphs might

need to be reordered, and then test it, you know,road test it, to see

if these actually do address the problem of improving peoples’ understanding. And then after all this is done it goes to systems. So

it is really an issue that goes beyond just the systems staff.

Chairman SHAW. And would that require more administrative

funding?

Ms. BOVBJERG. I am not in a position to say that. It is not clear

that there aren’t efficiencies or shifting that could be done within

SSA to achieve this.

Chairman SHAW. Making those assessments though, coming up

with those opinions, would be within the framework of what you

all do though, wouldn’t it?

Ms. BOVBJERG. It would be, but we would have to know what exactly needed to be done and what the timetable was for doing that.

I know that in talking about SSI letters as part of the court case,

SSA said that it would take ten years to fix these letters, and I understand from Mr. Halter’s statement today, that they are now saying it will take four years. We don’t know exactly how long it would

take and what resources it would take to do that.

Chairman SHAW. Why would it take four years?

Mr. HALTER. Mr. Chairman, for SSI, what we are doing is trying

to address most of the letters as quickly as we can with this worksheet that I described in my testimony, which we plan to have out

by July of 2002. The issue as to why it would take that long is one

that I would be happy to share with you by providing a schedule

of the project which lays it out month by month. But as you go

through this process of crafting the language, developing the software, testing the software, validating it, installing it, it takestime.

We also have very few people with the capabilities and the background and the expertise to do this.

This is not going to be done by your standard journeyman claims

representative. This takes somebody with real systems expertise

within the program.

[The following was subsequently received:]

The time frame to complete the fixes to SSA’s notices.

The accompanying schedules describe the steps necessary to achieve our goals for

the Social Security Adjustment notices and Phase I for the SSI award/adjustment

notices. Phase I focuses on approximately 90 percent of the SSI notices by supplying

a detailed worksheet that describes the computations that were used to compute the

final benefit amount. Phase II for SSI notice improvements is scheduled for completion in August, 2003 and Phase III is scheduled for completion in September, 2004.

We expect to have our notice changes fully implemented by September 2004.

31

PROJECT PLAN FOR IMPROVING SSI NOTICES—PHASE 1

Finalize Language—02/00–11/30/00

Policy, Office of Systems Requirements (OSR), and Office of Systems Design and

Development (OSDD) are all participating in the finalization of the language. We

have used focus groups for input in designing the computation worksheet.

Translate Notices into Spanish—Complete by 12/30/00

Develop Requirements—12/01/00—05/01/01

OSR will provide a ‘‘template’’ of the new computations worksheet as soon as possible to allow OSDD to begin discussing design options. Thus, requirements development and program development times will overlap.

Design New Process—Complete by 07/01

OSDD will begin design based upon the requirements.

Development—Complete by 11/01/01

The development for this project requires extensive specialized experience because

the SSI program is extremely complex. SSI processes the whole master record going

back in time a number of years. This includes multiple actions, thereby causing

complex explanations in the notices. Since this is a new computations and notices

process, much of the required data needs to be defined, records formatted and other

programs in the SSI integrated system need to make modifications to define and/

or process the new record. Extensive knowledge of the existing SSI data elements

and program logic flow is mandatory. The new format, language and selection logic

will need to be developed and entered into the program and language data facility.

Testing—Complete by 12/28/01

This testing is done in OSDD to ensure test scenarios process as expected. In addition, the testing ensures the programs run to job completion and builds the job

control language (JCL) that allows the programs to be validated and moved to the

production environment.

Validation—Complete by 05/31/02

The validation will be an iterative process. Since SSI can process multiple actions

that may be very complex, different paragraph combinations will occur based on the

types of actions. Also, there are any number of different types of transactions processed in SSI. Each of these must be validated to ensure consistency and accuracy.

Mainframe Integration Testing—06/03/02—07/12/02

The software must be fully tested in the production arena to ensure there are no

adverse affects on the scheduling of production runs.

Release Notice Language Procedures—Complete by 07/02

Implementation—Complete by 07/02

PROJECT PLAN FOR IMPROVING AUTOMATED BENEFIT ADJUSTMENT NOTICES

Finalize Language—07/17/00—10/17/00

Policy, Office of Systems Requirements (OSR), and Office of Systems Design and

Development (OSDD) are all participating in the finalization of the language. We

are using ‘‘Policy Net’’ to help speed up the process by getting ‘‘outside’’ input from

other areas of SSA.

Develop Requirements—09/15/00—03/01/01

We’ve overlapped our requirements with the previous life cycle to allow us to get

to development quicker. OSR will provide a ‘‘template’’ of the new benefit adjustment (AJS3) notices as soon as possible to allow OSDD to begin the design.

Translate Notices into Spanish—Complete by 11/00

Design New Process—11/15/00—12/26/00

Again, we’ve overlapped the design phase with the requirements phase to allow

us to get to development quicker. OSDD will begin the design based on the ‘‘template’’ from OSR. This will allow us to set up a ‘‘shell’’ of our notice program.

32

Development—12/28/00—10/05/01

The development for this project requires extensive specialized experience because

the AJS3 program is extremely complex. Unlike the other object programs under

Title 2, AJS3 processes the entire master record going back in time up to 5 years.

This includes multiple actions, thereby causing complex explanations in the notices.

Since virtually all of the existing notice language is being changed, we need to remove the old and then install the new generation criteria, paragraph identifiers, and

fill-ins. Extensive knowledge of the existing AJS3 data elements and program logic

flow is mandatory. While in the development phase, we expect to encounter additional needs for updated language or better sequencing of paragraphs, so this will

be an iterative process.

Testing—10/08/01—12/28/01

This testing is done in OSDD to ensure test scenarios process as expected. In addition, the testing ensures the programs run to job completion, build job control language (JCL) that allows the programs to be validated and eventually moved to the

production environment, and provide for a review of the output.

Validation—12/31/01—05/31/02

The validation will be an iterative process. Since AJS3 can process multiple actions that may be very complex, different paragraph combinations will occur based

on the types of actions. Also, there are 16 different types of transactions processed

in AJS3. Each of these must be validated to ensure consistency.

Mainframe Integration Testing—06/03/02—07/12/02

The software must be fully tested in the production arena to ensure there are no

adverse affects on the scheduling of production runs.

Implementation—07/15/02—07/15/02

PROJECT PLAN FOR IMPROVING SSI NOTICES—PHASE II AND PHASE III

BENEFIT COMPUTATION WORKSHEET—UNEARNED INCOME NOT PREVIOUSLY

CONSIDERED

Focus Group Testing—04/03

Upon review of the focus group results from 03/02, language will be revised and

tested again at this time.

Phase 2 Scheduled Completion—08/03

This phase will provide computational worksheets for recipients with earned income or a combination of earned and unearned income. Notice language describing

living arrangement classifications will also be in this release. Additional modifications for language and/or restructuring will be included as defined and agreed to

by the workgroup.

Phase 3 Scheduled Completion—09/04

This phase provides computational worksheets for recipients with more complicated income situations (e.g. parent to child deeming). Additional modifications

for language and/or restructuring will be included as defined and agreed to by the

workgroup.

other priority projects like the ones I mentioned came in, and we

And the reason that this has been deferred in the past is because

f

had to move the very people that would be doing this work off of

that work and onto some of the other priorities.

Chairman SHAW. Did they get the benefit from this letter? How

did it end up?

Mr. HALTER. Oh, absolutely. I mean I have no indication from

anyone at GAO that anybody is not getting the benefit they are actually entitled to.

33

Chairman SHAW. Then why did you ask them if they think they

qualify, to contact us if they have been qualified?

Mr. HALTER. I am sorry, Mr. Chairman. Say that again?

Chairman SHAW. I am reading the line at ‘‘F’’, and I am comparing it with the line at ‘‘B’’ that says ‘‘We’re sending you a check’’

on line ‘‘B’’ for $3,367. Then you go down to line ‘‘F’’ and it says,

‘‘If at any time in the future you think you are qualified for the

payment, please contact us.’’ Then at line ‘‘E’’ it says, ‘‘Since you

are not eligible for SSI.’’ What are we sending them?

Mr. HALTER. This is what we are saying to folks, as I understand

it, and again, I have just seen this letter today, but my understanding is that these folks were eligible over a certain period of

time. They qualified for a benefit. We were sending them a check

for that amount. They are now currently not eligible for a benefit,

and paragraph ‘‘E’’ is telling them that if in the future they think

that they become eligible again, that they should contact us and

file a new application.

You can ask GAO though, since they have had the benefit of actually picking this letter out, as to whether that is in fact what

happened.

Chairman SHAW. I will.

Ms. BOVBJERG. I have no idea whether this person was paid.

That wasnot something we reviewed. We assume that she was.

There are 100,000 of these kinds of letters. And we asked our consultants—this is not just GAO’s opinion as to whether the letters

can be understood we asked our writing consultants what they

thought about these. They said that one of the single most important things in clear writing is to have the most important information right up front all in one place and not to have it scattered

throughout a lengthy letter, because people don’t always read the

whole thing. And I think that that is a particularly important issue

for this letter. It is hard—it will be hard for a recipient to know

that what is being said is: ‘‘You were eligible in the past, here is

your check, but you are not eligible right now, and that if you are

eligible in the future, there is recourse.’’

Chairman SHAW. Then are you required, Mr. Halter, by law, to

put that paragraph ‘‘F’’ in there telling them that they can reapply?

Mr. HALTER. We certainly—whether we were required to do so

by law or not, Mr. Chairman, we would want to do it. I will check

and see whether or not in fact we are required to do it, but we

would want to whether it is a requirement or not.

[The following was subsequently received:]

There is no requirement in the law for the paragraph Mr. Shaw refers to which

states, ‘‘If at any time in the future you think you qualify for payment, please contact us immediately about filing a new application. The earliest month for which

we can pay you is the month after you file a new application.’’ SSA includes this

paragraph as a part of SSI notices for customer service purposes.

A corrected version of the paragraph will be implemented effective October 2,

2000.

plied now. I guess they know they are better, they don’t need the

Chairman SHAW. Well, wouldn’t you assume that the person apf

assistance any more. But if they get in trouble again, wouldn’t they

34

know to come back? Is that something we have to tell them? What

I am trying to do, I mean, brevity is really so important in dealing—particularly in SSI. You are dealing with low-income people,

of probably a low level of education, easily confused.

Mr. HALTER. Right.

Chairman SHAW. Your people also deal with the elderly, and you

know, I think every member of Congress has had people coming

into their office almost in tears, and say, ‘‘What is happening?’’

Mr. HALTER. Right. Mr. Chairman, to answer your question on

that, as to whether or not that is required by law, we will check

on that, but in terms of whether we should do it, I would argue

that we should err on the side of actually telling folks that if their

circumstances change, they should in fact come back and reapply.

That would be the predisposition I think I would have, rather than

leaving it vague or unknown to them.

Ms. BOVBJERG. Mr. Chairman, could I jump in for a minute?

Chairman SHAW. Yes, please.

Ms. BOVBJERG. It is my understanding that that particular language is being changed this fall because it is actually incorrect. It

tells people they have to reapply, and what it should say is that

you don’t have to reapply within the first year, but after 12 months

you would have to submit a whole new application, so that I

believe——

Chairman SHAW. So what we should be telling them is that they

have a special circumstance, there is a special circumstance here,

that they would have to jump back in.

Mr. Portman?

Mr. PORTMAN. Thank you, Mr. Chairman, and I am sorry I

couldn’t have been here for all the testimony. I did, Mr. Halter, get

the benefit of hearing your testimony earlier at the beginning of

the hearing, and got a chance to look over the testimony as well

from GAO.

I have two questions. The first is what SSA knows about in

terms of the impact of this problem on your bottom line. With the

IRS, we spent a lot of time looking at the impact of both the poorly

written and many of the misleading notices, as well as incorrect notices, and we found a tremendous downstream cost. I know there

is a case pending in the courts which has indicated that for every

1 percent problem in terms of a letter misstating something, there

is roughly a $100,000 cost. They came up with that.

My question to you is: what are the downstream costs? What are

the costs of these poorly written and sometimes in accurate notices

to SSA? We talked earlier about your need for more funding, and

you in essence said, ‘‘If Congress would give us more money, we

would solve these.’’ I think we have heard some other testimony in

that regard about priorities and planning and timetables, and

maybe shifting some focus. But my question to you is what are the

cost savings? Have we looked into that? Do you have any information?

Mr. HALTER. It is a good question, Congressman. In fact, we

know that if our notices are not as clear as they could be, that that

does generate telephone calls to us——

Mr. PORTMAN. I would guess your 800 number is probably tied

up sometimes when it doesn’t need to be, but also people probVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
35

ably—in my district, they walk into the SSA office with these notices in their hands sometimes.

Mr. HALTER. That is absolutely correct. Now, we do know, Congressman, about the frequency of calls to our 800 number, because

we do surveys on that, and of course we know broad topics as to

percentages as to who is calling and why. A fairly low number of

phone calls to our 800 number is about notices.

In addition to focusing on streamlining the notices themselves,

we have also focused some energy and resources on making sure

that our personnel have a system available so that they can pull

up the notice in question when somebody calls in, so that they can

in fact pull up a copy of that notice and then help the person understand it. This is, of course, not the best outcome. It is not the

one that we are shooting for. What we are shooting for is to solve

these problems right there on the front end.

Mr. PORTMAN. Prevention is always the best policy.

Mr. HALTER. Absolutely.

Mr. PORTMAN. My only point is, in terms of making this higher

priority, because we do have testimony indicating that—at least

from GAO—that this has not been as high a priority as it should

have been, despite having been aware of this problem for several

years, that it would be helpful to have some data to know what the

impact is, not just on our constituents, because we do hear about

it and we get the case work, but also on the system. And if you

are talking about money, here is a way to save money. It sometimes requires a little more planning. You said you put some time

into preparing for this hearing and now you realize the problem is

more complex than you thought they were.

I guess that is a good reason, Mr. Chairman, to have had the

hearing, and I am glad we had it.

I would ask you whether the four-year period is realistic now

that you have spent more time on this, or is it ten years, or is it

six years, as we have heard from GAO? And what can we expect

in terms of a timetable and what specifically are you asking for

from Congress? You indicated earlier, again, that, gee, if we just

had more money, this wouldn’t be a problem, which again, seems

to be counter to the GAO testimony.

Mr. HALTER. Actually, Congressman, I didn’t say that precisely.

What I did say was that if resources had been forthcoming in the

past, this issue would have been dealt with. But let me go back

to——

Mr. PORTMAN. That sounds like my paraphrasing is pretty much

what you just repeated.

Mr. HALTER. What I said was if we had the resources forthcoming in the past——

Mr. PORTMAN. No. I’m saying what you said is, ‘‘Gee, if we had

just had more money, this wouldn’t be a problem.’’

Mr. HALTER. We would have corrected this earlier.

Mr. PORTMAN. And I would challenge that, based on what I have

heard. It is about setting priorities. You know, you have got a huge

budget, and you have a lot of decisions to make——

Mr. HALTER. Absolutely.

Mr. PORTMAN. And you have got to focus on certain things and

less so than others, and that is why I asked the earlier question

36

about how to get a higher focus. But is the four-year time period

one that you are comfortable with now that you have spent more

time on this?

Mr. HALTER. Actually, let me walk through this because I would

like to give you even more detail than that in terms of the timetable.

Of the 14.2 million notices that GAO has come in and talked

about, problems with 7 million of them will be resolved within two

months.

Mr. PORTMAN. Almost half.

Mr. HALTER. Yes. Problems with 1.4 million of them should go

away as a result of the passage already of the elimination of the

retirement earnings test. In other words, we shouldn’t have a problem with those notices. So now we are down to more than half that

we are dealing with.

In terms of the SSI notice with respect to the benefit award and

also the benefit adjustment, the major issue, and the one that accounts for the bulk of the confusion, should be resolved by July of

2002 with the implementation of a worksheet that lays out for an

individual how their SSI benefit is calculated or how an adjustment

is made. For about 90 percent of those notices we should have a

good workable solution by July 2002.

For the remaining 10 percent of the SSI notices—and now we are

getting into very low numbers of notices here—it is going to take

until 2004. And the reason is that those are even more complex

than some of the others that we can solve more quickly.

So our expectation is that by September of 2004 the vast majority, in fact, I would argue that in effect, all of the problems that

GAO has outlined here will be resolved. And, as I said, within two

months, more than half will be resolved. By July of 2002 the vast

majority of these will be handled.

Mr. PORTMAN. Thank you, Mr. Halter. My time is up, but I am

glad you have some focus on it. I appreciate it.

Mr. HALTER. Thank you very much.

Chairman SHAW. Mr. Hulshof.

Mr. HULSHOF. Thank you, Mr. Chairman.

Mr. Halter, you think that whoever generated this letter actually

read it before it went out?

Mr. HALTER. I could check, Congressman, but the likelihood is

probably not.

Mr. HULSHOF. And I am not trying to get anybody—the individual who generated this letter into hot water, but I was interested in the dialog, colloquy you had with the Chairman, and if you

compared your constituent service with what we do with constituent service, you know, it is certainly tempting to plug in the

figures, do the spell check and send it out and get to the next letter, and yet, that is not really being responsive.

I am also—let me follow up on something my friend from Ohio

pointed out about funding. You know, this Subcommittee, I think

Social Security Administration would agree, this Subcommittee has

been extremely sensitive to trying to work with SSA, specifically

going to bat for you—I am thinking of Ticket to Work, where we

withheld or authorized the withholding of certain attorneys’ fees so

that SSA could have the money to make sure that these changes

37

that were implemented—so I think the chairman has shown a

great willingness to work with SSA. And so I am concerned with

the comments that we have not been responsive. It is my understanding that SSA puts out a strategic plan each year which outlines your agency’s goals and priorities for the coming years. So my

question is: how many times has the strategic plan included initiatives aimed at improving notices?

Mr. HALTER. Very frequently, Congressman. I don’t think you

were here for the opening testimony. But the fact is we do 390 million notices a year. Improving all of those notices, or making sure

that in the beginning they are well written and then improving

them over time has certainly been a priority and a key initiative

for the organization.

In 1993 the identification of problems indicated that 30 percent

of our notices needed simplification or needed work. Over the last

7 years, that number has been whittled down to 8 percent, and as

I mentioned in talking about what remains to be done, if you give

us credit for what happens two months from now, knocking out 7

million out of these 14 million, that percentage will be reduced

even further.

We understand and have understood for a long time that providing clear and compelling notices are something that we should

be doing, and we have devoted resources to it. So I appreciate the

question, and I would point out to you that in our strategic plan,

we have identified notices that we worked on.

Mr. HULSHOF. In light of that then, when has SSA approached

Congress with a credible plan or specifically designated cost estimate so that we could plug that number in to help you fix the problem?

Mr. HALTER. When we present a budget to the Congress, we

don’t present line items for these particular initiatives. And the

fact is, that over the last six years, the budget that Social Security

has received has been 1 billion dollars in aggregate less than what

the President requested for Social Security’s administrative budget.

When you balance all of those priorities——

Chairman SHAW. I think the lady behind you has two fingers up,

so I think it’s two billion.

Mr. HALTER. No, it is actually one billion dollars over 6 years.

Over eight years it might be even higher.

Mr. HULSHOF. Let me, Ms. Bovbjerg, very quickly, this is a very

compelling—and I know we are taking just this one single letter,

but I think it does probably speak to the issue as you have walked

us through it, so thank you for that example. Do you have any data

at GAO to indicate if there has been really any adverse impact on

beneficiaries as a result of confusing letters like this or not?

Ms. BOVBJERG. There really isn’t much information available. It

is anecdotal. We know people write to their congressmen. We know

that the 800 number does get calls on this. But it is my understanding that the categories that the 800 number calls are put into

are too broad to really narrow it down to these notices. So we don’t

have much data.

Mr. HULSHOF. Okay. Thank you. Thank you, Mr. Chairman.

Chairman SHAW. Mr. Cardin?

38

Mr. CARDIN. Thank you, Mr. Chairman, and let me again thank

our two witnesses.

One thing is clear, and that is, whether it is one billion or two

billion, that SSA has received less administrative support than the

administration believed was necessary, and I would suggest that

probably less than what Congress thought was necessary. But during those years we were fighting discretionary budget caps that required all agencies to receive less than was needed in order to meet

our goals of a balanced Federal budget. Many of us thought it did

not make too much sense to include the Social Security Trust Fund

on budget for the purposes of calculating the deficit. And many of

us think it doesn’t make a lot of sense for your administrative

budget to compete with the other appropriations within LaborHHS-Education, and you shouldn’t be subject to discretionary

budget caps. Now, it still means you will be subject to appropriation. There will still be oversight to make sure that it is an appropriate expenditure of public funds for every dollar you spend. But

I was listening to you try to justify switching of priorities.

And I would suggest, Mr. Chairman, that in many respects, that

because you turn a spotlight on one problem, you might shift some

resources, and that is just going to mean next year we are going

to have to have a hearing on a different subject because of the resources being diverted from maybe determinations or redeterminations or other areas that we are going to start hearing from our

constituents, and indeed we do.

So I really do want to put a plug in for the bill that you have

been working on, Mr. Chairman, and that is to remove the administrative budget of SSA from the discretionary budget caps. I don’t

think it makes any sense to do that—to subject it to it. I think that

legislation should be enacted, and I hope that we can work together

to get that done, and I think it would help. It is not the answer,

but certainly again provides the necessary resources and tools, and

then we can hold the agency accountable on a more straightforward

way.

The second point I would like to underscore is the point that you

made a little bit earlier. And that is that a lot of the responsibility

rests with Congress. If we pass laws that are difficult to interpret

or difficult to understand—for good reason—we have done that in

the tax code and we have done it in Social Security code—we need

to take a look at that, and we need your recommendations as to

where we can simplify policy to make it easier. I don’t think we did

the earnings test to simplify your job. We did it because we thought

it was right. But it did simplify your job.

Mr. HALTER. Absolutely.

Mr. CARDIN. And we should look for ways in which we can help

you, and improve the policy as we go along, and I would encourage

you to be very bold in recommending those changes to us.

The one question I want to ask that has not been raised yet, and

that is the language barrier, as to how you deal, or what information you found in your study, that part of the problem is the difficulty of our constituents to understand the communication because of the language in which it is communicated. I know you

have made a real effort for Spanish, but there are many other languages that my constituents feel comfortable with, and I am just

39

interested as to whether this is a significant problem, and what

you are doing to deal with it.

Mr. HALTER. I appreciate the question, Congressman Cardin. In

fact, we are very proud of what we have done in the way of making

sure that American citizens calling in, but not speaking the

English language, have the possibility of talking with a Social Security employee in the language that they prefer.

In fact, this past year, just as one example, over a third of our

new hires are bilingual, which is an incredible percentage when

you compare it to the rest of the workforces that are out there.

We have also, as you noted, done a number of notices in Spanish.

We have also offered translation services in over 16 different languages, and I would be happy to provide that list of languages for

the record that our staff have capability of interacting with a constituent on.

Mr. CARDIN. That would be helpful.

Mr. HALTER. We will be happy to do that. But it is definitely a

diverse workforce, but it is something that we will have to continue

to devote efforts to.

[The following was subsequently received:]

Notices are routinely issued in English and Spanish. Also, local offices create

come-in notices in additional languages that are heavily used in a particular neighborhood, such as Chinese for San Franciscoand New York’s Chinatown offices.

Public Information materials have been created in languages beyond English and

Spanish. Materials have been developed in Korean, Chinese, Polish, Russian, Haitian Creole, Arabic, Armenian, Cambodian, Lao, Portuguese, Punjab, Spanish, Vietnamese, Farsi, Greek, Italian, Hmong, and Tagalog. These publications are available from field offices, through FAX on Demand, and through the Internet. Local

offices may translate materials into languages heavily represented in their service

areas.

SSA will provide interpreters and conduct interviews in the customer’s preferred

language for all languages. Our policy is to use bilingual employees whenever possible within an office for interpretations and translations, and within a region for

translations. Beyond these boundaries, our policy is to provide interpreter and

translation services through outside contractors.

SSA has over 6,000 bilingual public contact employees. The top 10 languages spoken by bilingual public contact employees are:

• Spanish

• French (including French Creole or Haitian)

• Tagalog or other Philippine Dialects

• Chinese (various dailects)

• Vietnamese

• German

• Italian

• Russian or Ukraine

• Hmong, Cambodian or Lao

• Portuguese

If bilingual employees are not available SSA has the ability to obtain translation

and/or interpreterservices in 97 languages.

constituents or the beneficiaries’ difficulty in understanding the

Mr. CARDIN. I am wondering whether part of the problem is the

f

language. I mean, is that part of the problem we have here?

Ms. BOVBJERG. That was not the problem that we looked at in

this particular evaluation. We looked at English. And asked writing consultants, who are accustomed to looking at all the basics of

effective communication to evaluate these notices.

40

I think that it was in the back of our minds that the people who

are getting these notices may not be very well educated. SSI is a

welfare program. Beneficiaries may not have a very good command

of English. We did not review whether a translation worked, but

instead were concerned that even in English not all of notices are

very effectively communicated.

Mr. CARDIN. And, of course, the primary responsibility is to make

sure that it is understandable in English, but then I would just

urge that—we have to make sure that people who are entitled to

these notices can comprehend and understand what is involved

here. So you have to take it to the next level.

Ms. BOVBJERG. Yes, I agree.

Mr. CARDIN. Thank you, Mr. Chairman.

Chairman SHAW. Mr. Collins?

Mr. COLLINS. Thank you, Mr. Chairman. Bill, good to see you

again.

Mr. HALTER. Nice to see you, Congressman.

Mr. COLLINS. This is a computer generated letter; is that right?

And somebody has to put this language in that computer for it to

generate the letter.

Mr. HALTER. Yes, sir. What happens, Congressman, is we fashion

paragraphs that are then mixed and matched by the computer, depending upon the individual circumstances of that particular beneficiary. And there is a software program that determines the order

in which those paragraphs are put in.

Mr. COLLINS. Maybe we should send on to the computer. You

know, how many pages is this letter? Three?

Ms. BOVBJERG. Eight.

Mr. COLLINS. How many?

Ms. BOVBJERG. Eight.

Mr. COLLINS. Eight pages.

Mr. HALTER. Congressman, we don’t actually have the letter, and

this is the first time I have seen this, so I can’t tell you about the

actual letter.

Mr. COLLINS. Well, you talk about a lot of other letters that need

to be revamped. Have you seen those?

Mr. HALTER. I have definitely seen samples, yes, sir, but as you

know, we send out 390 million forms, notices, letters a year, so I

only reviewed a sample.

Mr. COLLINS. They’re not 390 million different messages though.

How many letters does that actually come down to be a minimum

of?

Mr. HALTER. Well, with respect to SSI, I think what has been indicated here is we are talking in the range of about 41⁄2 to 5 million.

Mr. COLLINS. Well, you have got a letter for this, a letter for this,

a letter for that. Are there 20 letters? Are they different letters?

Are there five different letters, ten different letters?

Mr. HALTER. Actually, a much larger number than that, Congressman, when you put it all together.

The key thing is that for this particular category of letters that

GAO is presenting to us here today, let us assume that it is around

5 million that are different letters in this category, that there are

literally thousandsof different permutations and combinations of

41

that one letter, depending upon the individual circumstances of the

beneficiary. There are literally hundreds of different variables that

can affect the way the letter is put together in the automated system, and that is the complexity that we are trying to deal with.

And as the Chairman mentioned, and as Congressman Cardin

mentioned, a lot of that is driven by the complexity of the program,

and we have no choice administering the program and putting together the benefits for that individual person. It depends upon the

circumstances and the variations are variations that are written

into the law.

Mr. COLLINS. Well, whoever put this software together should

have known, had better sense or more common sense than to put

an eight-page letter in that thing to be kicked out. You know, if I

received this letter, and it tells me right up front that I am—this

notifies me I am eligible for Social Security income—it says payments—I think it ought to be subsidy, because that is what it is,

it is a subsidy. And then I look down here and I see some numbers

of how much a month. Then I see another paragraph that follows

it that says I am going to receive a check for $3,367. I would quit

reading there and go to the mailbox. And I would stand by that

mailbox, and when that $3,367 ran out, I might pick the letter up

and read further in it, or I would pick up the phone and call the

office and find out why I am not getting any more money.

You know, this just doesn’t make good common sense, Bill. I

mean, I don’t know who put this together, but you need to go pull

those folks into your office this afternoon when you get back over

there, and say, ‘‘Look, this is dumb.’’ And, Bill, I am going to tell

you one other thing, one other thing.

Mr. HALTER. Okay. Let me just respond to that real quick, because I want you to know, Congressman, I have already pulled

them into my office, and we have had a conversation about it

and——

Mr. COLLINS. It shouldn’t take three, four years to rewrite something like this. You know, scrap this software thing and start writing some common sense letters.

And I am going to tell you something else, I don’t think you need

any more money. I think you could better use the money you already have. This is a waste of folks’ money, writing letters like

this. This is just not good common sense.

Mr. HALTER. Well, let me respond to that, because you know we

have a great working relationship, and I just want to talk a little

bit about what would happen if we decided not to use an automated system, but in fact went back and, as you say, put some

good common sense to it, and then generated individual letters.

You would be talking about an incredible use of people’s time to

put together 5 million individually put together letters.

Mr. COLLINS. I didn’t say that.

Mr. HALTER. Well, but that is the implication.

Mr. COLLINS. I didn’t say that, Bill. I mean, we all get thousands

of letters a year too, and we have letters that answer specific

issues. And if we had to wait four or five years to write a letter

to answer, you know, tell our computer, ‘‘Spit this letter out, wait

four years’’, because it is going to take us that long to come up with

42

an answer, we wouldn’t be here after two years to come up with

an answer.

Mr. HALTER. Well, I appreciate that.

Mr. COLLINS. It is just that you need to review these letters.

Somebody needs to review them, and I think it ought to go right

on up to the top and come up with some good common sense approach to tell somebody why they are eligible, why they are not eligible, because they are not going to read this. They are not going

to read eight pages. I wouldn’t read it. I can tell, I would see the

first two or three paragraphs, and I would go stand by the mailbox

and wait for my money, and I would enjoy it when I got it. But

this is just not good business.

Mr. HALTER. You know I take to heart your personal recommendations, and I want you to know that your first recommendation has already happened, that the meeting that you

wished to happen, happened long ago, and in fact, the proposals

that are being put forward here to you today, do reflect anincrease

in the speed with which we as an organization are dealing with

this, and so that meeting that you described has already happened.

Now if you are recommending to me that we go back and have

another meeting, I am happy to do that too. But the fact is—and

I would also, Congressman, be happy to spend some time with you

directly and talk through some of the complications of this, because

this is not an easy thing, and I think you and I could come to a

pretty good joint understanding of what is going on with this particular set of issues.

This is not something—I just have to say—this is not something

that we look at as a non-problem. We recognize that this is a problem, and we are working on it.

Mr. COLLINS. Well, Bill, you recognized that in 1990. You didn’t,

but somebody did.

Mr. HALTER. Well, I appreciate you pointing that out.

Mr. COLLINS. That is ten years.

Mr. HALTER. I understand, and as you know, I have been there

ten months, but the fact is——

Mr. COLLINS. I think you have addressed everything that I have

known you to address in a very fashionable and appropriate manner, but this one you need to address too. And I think if you do,

you concentrate on this, you will come up with a solution that

makes a whole lot more sense than this stuff.

Mr. HALTER. Well, that is our goal, Congressman, and I hope by

the end of it, that you will look back and say that that is exactly

what we accomplished.

Mr. COLLINS. Well, draft your letter and send me a copy of it,

and I will tell you how it sounds. [Laughter.]

Mr. HALTER. I tell you what, I will send you ten.

Mr. COLLINS. Ten different ones.

Mr. HALTER. Ten different ones.

Mr. COLLINS. You can send 20 if you want to.

Mr. HALTER. Okay.

Mr. COLLINS. Don’t make them eight pages long though.

Mr. HALTER. Well, now, this is something I have got to respond

to

Mr. COLLINS. Because I will send them back to you unread.

43

Mr. HALTER. Now, with respect to this program we are under

court order to have particular information in these letters and that

lengthens these letters. I mean, we are under a court order that

tells us particular language that has to be in there. And part of

what we are working on, in terms of thetimetable—and we have

expedited it from what GAO initially believed—is in fact a response

to a court case, and a court agreement, and so we are complicated

in our response by that as well.

Mr. CARDIN. Mr. Chairman, could I ask unanimous consent that

the entire letter be put in our record?

Chairman SHAW. Without objection, I think that is a good idea.

[The information was subsequently received:]

Social Security Administration

Supplemental Security Income Notice of Award

Date: October 13, 1999

Claim Number

*Application Filed—February 22, 1999

*Type of Payment—*Individual—Disabled

This is to notify you that you are eligible to receive Supplemental Security Income

payments under the provisions of Title XVI of the Social Security Act. The rest of

this letter will tell you more about our decision.

How Much We’ll Pay

*Beginning* *Through* *Monthly Amount Payable*

February 22, 1999 February 28, 1999 $.00.

March 01, 1999 October 31, 1999 $420.92.

This includes $87.58 from the

State of Massachusetts.

November 01, 1999 Continuing $.00.

Information About Your Payments

We are sending you a check for $3,367.36. This is money due you for March 1999

through October 1999. No further payments will be sent to you.

You should receive the check no later than October 16, 1999.

Your SSI Is Based On These Facts

• You met all the rules to be eligible for SSI beginning February 22, 1999. However, we cannot pay SSI until the month after you first meet the rules. In addition,

we cannot pay you any SSI for months after that because of the reason or reasons

given below. • You were disabled in February 1999 on. • You were living in the State of Massachusetts for February 1999 on. • The amount of money we pay you from the State of Massachusetts depends on

the State’s rules. • You are living in someone else’s home for March 1999 on. • You have monthly income which must be considered in figuring your payment

as follows:

• Your Social Security benefits—before deductions for Medicare if any—of $812 for November l999.

• The food and shelter you got in someone else’s home or apartment. We value that food and shelter at $166.66 for February 1999 through November 1999.

• We must count the full amount of any benefit listed above as income even

though all or part of a benefit shown is being withheld to recover an overpayment.

44

• Because of your income, you are not eligible to receive Supplemental Security

Income payments for November 1999 on.

Information About Your Back Payments

We are sending you a Supplemental Security Income check for $3,367.36 in October 1999. We will not count the part of this money which was due for back payments as your resource for 6 months. If the money is not spent before May 0l, 2000,

we will count any money left over as part of your resources. Butthings bought—with

this money may count as resources the month after they are bought. Your Social

Security office can tell you which things count as resources. You cannot get SSI if

the resources we count have a value of more than $2000.00.

Information About Medicaid

Since you are not eligible now for SSI you are also not eligible now for Medicaid

based on SSI. However, if you need help with medical bills, you may still be eligible

for medical assistance. Also, you may be eligible for Medicaid for the months we

paid you SSI.

Contact the nearest Massachusetts Division of Medical Assistance office for information about your State’s medical assistance programs and your eligibility for Medicaid. When you visit that agency; please take this letter with you. It will help the

people there answer your questions.

Things To Remember

• Your 551 payments may change if your circumstances change. Therefore, you

are required to report any change in your situation that may affect your SSI. For

example, you should tell us if:

• you move

• anyone else moves from or into your household

• your marital status changes

• income or resources for you or members of your household change

• your medical condition improves

• you go to work

This will help us pay you correctly.

Please read the booklet ‘‘When You Get SSI-What You Need To Know’’ carefully

for additional information about this requirement.

• Because we believe that your health may improve, we will review your case in

about 3 years. We will send you a letter before we start the review. Based on that

review, your SSI will continue if you are still disabled, but will end if you are no

longer disabled.

• This decision refers only to your claim for Supplemental Security Income payments.

• If at any time in the future you think you qualify for payment, please contact

us immediately about filing a new application. The earliest month for which we can

pay you is the month after you file a new application.

• The application you filed for SSI was also a claim for Social Security benefits.

We looked into this, and decided you can’t get any Social Security benefits except

the benefit you are already getting. If you disagree with the decision, you have the

right to appeal. A case review, described later in this letter, is the only kind of appeal you can have regarding Social Security benefits.

• Would you like to work? If so you should know about special Supplemental Security Income (SSI) rules. These rules can help you keep Medicaid and may help

you keep getting some SSI even though you are working. The enclosed fact sheet

tells you more about special SSI rules for people who work.

If You Disagree With The Decision

If you disagree with the decision, you have the right to appeal. We will review

your entire case, even the parts you agree with. We also will consider any new facts

you have and then will make a new decision. The new decision could be more favorable to you than the one you already have. But, keep inmind that the new decision

also could be the same as or less favorable than the decision you already have.

• You have 60 days to ask for an appeal.

• The 60 days start the day after you receive this letter. We assume you got this

letter 5 days. after the date on it unless you show us that you did not get it within

the 5-day period.

• You must have a good reason for waiting more than 60 days to ask for an appeal.

45

• To appeal, you must fill out a form called ‘‘Request for Reconsideration.’’ The

form number is SSA–561. To get this form, contact one of our offices. We can help

you fill out the form.

How To Appeal

There are two ways to appeal. You can pick the one you want. If you meet with

us in person, it nay help us decide your case.

• Case Review. You have a right to review the facts in your file. You can give us

more facts to add to your file. Then we’ll decide your case again. You won’t meet

with the person who decides your case. This is the only kind of appeal you can have

to appeal a medical decision.

• Informal Conference. You’ll meet with the person who decides your case. You

can tell that person why you think you’re right. You can give us more facts to help

prove you’re right. You can bring other people to help explain your case.

If You Want Help With Your Appeal

You can have a friend, lawyer or someone else help yon. There are groups that

can help you find a lawyer or give you free legal services if you qualify. There are

also lawyers who do not charge unless you win your appeal. Your local Social Security office has a list of groups that can help you with your appeal.

If you get someone to help you, you should let us know. If you hire someone, we

must approve the fee before he or she can collect it.

If You Have Any Questions

If you have any questions you may call us toll-free at 1–800–772–1213, or call

your local Social Security office at 1–617–282–4159. We can answer most questions

over the phone. You can also write or visit any Social Security office. The office that

serves your area is located at: Social Security, 2nd Floor, 540 Gallivan Blvd., Dorchester, MA 02124.

If you do call or visit an office, please have this letter with you. It will help us

answer your questions. Also, if you plan to visit an office, you may call ahead to

make an appointment. This will help us serve youmore quickly when you arrive at

the office.

We are sending you a pamphlet which contains important information you should

know. The pamphlet is called ‘‘When You Get SSI-What You Need to Know.’’ We

are also enclosing additional information about rules that can help you if you are

working or if you decide to work.

KENNETH S. APFEL

Commissioner of Social Security

Enclosures: SSI Rules That Help You Work

SSI RULES THAT HELP YOU WORK

We want to tell you about some special Supplemental Security Income (SSI) rules

that can help you while you are working or if you begin working. These rules can

help you get or keep Medicaid and may help you keep getting some SSI even though

you are working.

How Your SSI May Change If You Work

If you work full-lime or part-time and make $65 or less each month, your SSI will

usually not change. As the money you earn from your job goes up, your SSI will

go down. However, if you have no other income (money or support), you can earn

up to $1,313.77 a month and still get at least $1 in SSI.

If You Stop Working or Start Earning Less

If you stop working or start earning less, please let us know right away. We can

increase your SSI check, or start your SSI and Medicaid again if they have stopped.

You may not even have to file a new application.

Medicaid

If you get Medicaid, it will usually continue as long as you get SSI. If your SSI

stops because you begin earning too much money, you can often keep getting Medicaid as long as the following are true:

• You continue to be disabled or blind under our rules; and

• You can’t pay your medical bills without Medicaid.

46

We Don’t Count Some of Your Earnings Used for Work Expenses

The earnings you use for some of your working expenses may not count as income.

For example, we sometimes don’t count earnings used to pay for transportation to

and from work. Also we don’t count the cost of special equipment that helps you

to work.

A Plan Can Help

You may be able to keep more of your SSI if you develop a special plan to support

yourself. We call this a plan to achieve self-support(PASS). This plan lets you set

aside money for a certain amount of time for a work goal. For example, you may

set aside money to start a business, go to school, or get training for a job.

We don’t count what you set aside when we figure your SSI. This can help keep

you on SSI or help you get more SSI. A PASS may also help someone you know

qualify for SSI.

If You Need Help Finding a Job

We can ask someone who offers vocational rehabilitation services to help you find

a job or give you training.

If You Want To Know More

If you want to know more about these rules, contact any Social Security office and

ask to speak to someone about work incentives.

ment up, and it adds to the problem, because there is a lack of a

Mr. COLLINS. Well, you just brought another interesting comf

lot of common sense when it comes to the courts too. But I think

the answer, even to the courts, is to come up with something that

makes sense, simple, to the point, the old KISS theory. But this is

just so confusing, complex and ridiculous that it is not even worth

the effort and the time and the money it costs to mail it out. Thank

you, Bill.

Mr. HALTER. Thank you very much, Congressman.

Chairman SHAW. How much of the courts’ orders that you are

complying with have to do with due process, and how much has to

do with the wording of the legislation or interpretation of legislation?

[The information was received and is answered on page 48.]

Mr. HALTER. Mr. Chairman, I would have to get back to you with

an answer on that, a precise answer on that.

Chairman SHAW. I would like you to go beyond that issue if you

would. If you would just summarize to us the requirements that

you see the letter has to have pursuant to the statute and

pursuantto the court order. It may be that the court order has gone

too far, and that might be able to be corrected by statute, and I

think we ought to take a look at it, because, again, I think, certain

information has to be given. And I understand that. But if you give

too much information, it is lost and Mr. Collins isn’t going to read

that eight-page letter, and I think that needs to be—really needs

to be reviewed, particularly when you are dealing with the education level that most of these people have that are receiving these

funds.

Mr. HALTER. We will be delighted to do that, Mr. Chairman.

Chairman SHAW. Ms. Bovbjerg, I believe she is the one that said

that you all are going to have to make a correction in paragraph

‘‘F’’ up there, and that a new application would not be necessary

in this particular instance. What is involved in making that correction and why couldn’t that correction be done system wide?

47

Mr. HALTER. My understanding, Mr. Chairman, with respect to

that particular item, is that it is going to be corrected in the month

of October, but I want to ask our folks to confirm that. That in fact

is going to happen in less than 30 days.

Chairman SHAW. Well, then the question is: why can’t some of

this other stuff be addressed within the next 30 days? I think we

need to take a whole assessment of what is going on.

Mr. HALTER. I would partition the answer, Mr. Chairman, in

that there are some things that if it is just a language change, we

can make those very expeditiously, but if

Chairman SHAW. I think what we have here is an excess of language.

Mr. HALTER. Well, let me—as I partition this, I think it will become clear what I am talking about. If it is simply changing the

words in a particular paragraph that is in the system, we can do

that very quickly. If, on the other hand, what you are talking about

is changing the software that mixes and matches those paragraphs—and that is really the root of this problem—that takes

much longer for us to do, and that is the real complication. So with

respect to paragraph ‘‘F’’ and paragraphs like that, where it is simply the case that we need to change the actual language in the

text, we can do that very straightforwardly. If, on the other hand,

you are talking about the sequencing between paragraphs A, B, C,

D, E and F, that is much more complicated, and that is what is

driven by all the variables that we have been talking about with

respect to the program.

Chairman SHAW. But you could certainly—am I correct on this?

And again, I am asking for information on it. I don’t understand

how these programs work. But if you took that paragraph ‘‘F’’ and

put a period right after ‘‘immediately’’, and just struck the rest of

that paragraph, it seems to me that that would work.

Mr. HALTER. And, Mr. Chairman, I believe that the change that

will be forthcoming here in the next few days or the next few

weeks will in fact be something like that. But I would like to confirm that and get back to you with that particular thing.

[The following was subsequently received:]

Change in language to an SSI paragraph

The language in the paragraph referred to by Mr. Shaw will be corrected effective

October 2, 2000. The replacement language will be: ‘‘If you think you may be eligible

for SSI again, please contact us. If you do not contact us before [fill in appropriate

month and year], you may have to file a new application. If you have to file a new

application, the earliest month for which we can pay you is the month after you

file.’’

‘‘The earliest month for which we can pay you is the months

The revised language clarifies when a new application is needed.

Chairman SHAW. I don’t think you have to put that last sentence,

f

after’’—well, you won’t have a new application—but I don’t know

whether any further information is necessary. I think that is really

what you have to really look at, is how much information are you

required to give, because it looks to me that this is just totally confusing.

Mr. HALTER. Right.

48

Chairman SHAW. Ben, do you have anything else?

Mr. CARDIN. No.

Chairman SHAW. Well, I want to thank you both. Now, you are

going to follow up and give me the information that we have requested?

Mr. HALTER. Yes, sir.

Chairman SHAW. Setting forth statutory requirements and the

requirements of the court. And if you could have your legal counsel

also to advise us as to whether this court required information is

under dueprocess or as to the statutory interpretation. Then we

will have to look at it and see if we see a way that we can

Mr. HALTER. Mr. Chairman, I would be delighted to do that, and

we will follow up with you on those.

[The following was subsequently received:]

What the law requires to be in Social Security Notices

We are required to by Section 205(b)(1) (title II) and Section 1631(c)(1)(A) (title

XVI) to ‘‘make findings of fact, and decisions as to the rights of any individual applying for a payment under this title.’’ We include all the information in our notices

to satisfy these sections. When the courts find our notices legally insufficient, it is

usually because they determine we have not included enough information, or not

stated the information clearly, to explain our findings of fact and an individual’s appeal rights.

Listed below are other specific citations that discuss notice requirements.

Specific Notice Requirements

Section 205(s) (title II) and section 1632(o) (title XVI) require SSA notices be written in ‘‘simple and clear language,’’ and include a local social security office address

and telephone number.

Section 205(j)(2)(E)(ii) (title II) and section 1631(a)(B)(xii) (title XVI) give notice

requirements to explain that a representative payee will receive benefits on behalf

of an individual. The notice must be clearly written in easily understandable language, identify the person chosen, and explain the right to appeal that a representative is needed, appeal who the representative is, and review the evidence we used

to make our decision.

Section 205(b)(3)(B) (title II) and section 1631(c)(1)(B)(ii) (title XVI) require, in an

adverse situation, SSA include the effect on possible eligibility for payments of

choosing to reapply rather than appeal the decision.

Section 206(a)(2)(D) (title II) and section 1631(d)(2)(A) (title XVI) require a notice

about a fee agreement to include: the past-due amount, past-due amount payable

to the claimant, amount of the maximum fee that can be charged, and explanation

of review procedures.

Section 206(c) (title II) and section 1631(d)(2)(B) (title XVI) require the notice to

tell the beneficiary he/she can have an attorney help with an appeal and that qualifying individuals can get legal services free of charge.

Section 1631(k) (title XVI) requires notification of blind and/or disabled individuals about the potential eligibility under section 1619 at the time of the award,

when income is $200 or more for a month, and periodically afterwards as long as

the individual’s income is $200 or more for a month.

Section 1631(l) (title XVI) requires SSA to provide individuals applying for or receiving benefits because of blindness the following notice options: receive a supplementary notice by telephone within 5 working days after SSA mails the initial notice; receive the initial notice by certified mail; or receive notification by some alternative way established by SSA and agreeable to the individual. Title II notices also

follow this requirement.

Sections 205(b)(1) and 1631(c)(1)(A) of the Social Security Act require the Commissioner of Social Security to ‘‘make findings of fact, and decisions as to the rights

of any individual applying for a payment under this title’’ (either title II or title

XVI). If a decision involves a determination of disability and is partially or wholly

unfavorable to the individual, the notice describing the determination must contain

a statement of the case, in understandable language, setting forth a discussion of

the evidence and stating the determination and the reason or reasons upon which

the determination is based.

49

COURT CASES THAT SPECIFY NOTICE REQUIREMENTS

*We have annotated the cases where due process was an issue.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). When

government action threatens the deprivation of an individual’s property, due process

requires that the individual receive notice that is reasonably calculated, under all

circumstances, to apprise the individual of the action taken and afford him or her

an opportunity to present objections. Due process.

Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970). The Supreme Court held that before welfare benefits can be terminated, due process requires ‘‘that a recipient have

timely and adequate notice detailing the reasons for a proposed termination, and

an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.’’ Due process.

Cardinale v. Mathews, 399 F. Supp. 1163 (D.D.C. 1975). The court applied the

holding in Goldberg v. Kelly to reductions, suspensions, and terminations of SSI

benefits. As a result, SSA’s notices explaining intended reduction, suspension, or

termination of SSI benefits must explain that the individual has the right to a review of SSA’s determination and that the individual may choose a case review, informal conference, or formal conference. Due process.

Califano v. Yamasaki, 442 U.S. 682 (1979). The Supreme Court held that title II

beneficiaries who request waiver of collection of an overpayment are entitled to the

opportunity for a prerecoupment oral hearing. Consequently, SSA must inform individuals whose waiver request cannot be granted based on the written request of

their opportunity for an oral hearing. Based on the language of section 204(b)

of the Social Security Act.

Benson v. Schweiker, 652 F.2d 406 (5th Cir. 1981). The court determined that the

notice of the right to be represented by counsel must include an explanation of the

fee limitations in sections 206 and 1631(d) of the Social Security Act, of the possibility of representation by a private attorney on a contingent fee basis, and of the

possibility of free representation if the claimant cannot afford a lawyer. See also

Holland v. Heckler, 764 F.2d 1560 (11th Cir. 1985). Based on statutory language.

Wall v. Califano, (N.D. Cal. July 6, 1982). In a settlement agreement, the Secretary agreed to simplify the language describing the three ways to appeal SSI posteligibility reduction, suspension, and termination decisions. The settlement agreement set forth specific readability and content standards. Settlement agreement.

Muir v. Schweiker, (D. Or. February 24, 1983). In a class action settlement agreement, the Secretary agreed to include on the SSI notice of the decision to recover

an overpayment a statement advising recipients that ‘‘appearing in person may help

the person deciding your case to make a decision.’’ The settlement agreement applied nationwide. Settlement agreement.

Ellender v. Schweiker, 575 F. Supp. 590, 600 (S.D.N.Y. 1983). To be constitutionally adequate, SSI overpayment notices must explain to the beneficiaries the

time periods during which overpayment arose, the amount of overpayment in each

time period and in total, the amount of any prior repayments, the reason for overpayment, that the recipient has a right to appeal and/or reconsideration, and that

under specified conditions the recipient may have the right to a waiver of repayment

of the overpayment. Due process.

Buffington v. Schweiker, No. 734–73C2, (W.D. Wash. Feb. 7, 1983). The court established standards for notifying a title II beneficiary about the scheduling of a personal conference on the issue of waiver of the overpayment when an initial paper

review regarding waiver is adverse. The written notice must contain: all the necessary information about date, time, place, the procedure for reviewing the file prior

to the hearing, the procedure for seeking a change in the scheduled date or time

or place, and all other information deemed necessary by the Commissioner to fully

inform the claimant about the personal conference. Due process.

Page v. Heckler, No. 82–1388 slip op. (M.D. Pa. July 2, 1984). In this State-wide

Pennsylvania class action, the court agreed to a proposal to have SSA follow the

same waiver of overpayment procedures under title XVI as were required in

Buffington for title II overpayments and waivers. The Commissioner is required to

send a notice of a personal conference, which meets the standards announced by the

Buffington court to overpaid SSI recipients seeking waiver. Due process.

Powell v. Heckler, 789 F.2d 176 (3d Cir. 1986). The court held that the Appeals

Council cannot review an entire case when the claimant appeals only part of the

decision unless the Council gives the claimant notice of its intention to do so within

60 days of the ALJ decision. Due process.

Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). The court held that

SSA’s initial notice of an adverse determination violated Fifth Amendment due process because it did not clearly explain the difference between appealing the denial

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and filing a new application. The notice did not clearly indicate that if no request

for reconsideration is made, the determination is final. Due process.

Ford v. Apfel, No. CV–94–2736 (E.D.N.Y. January 13, 2000). After negotiations

between the parties, the court required that SSA revise its automated SSI financial

eligibility notices (e.g., denial, change in payment amount) to better explain the financial calculations that affect eligibility and payment amount. Among other things,

the court required that SSA include in the notices information regarding the individual’s right to review his or her claim and how the appropriate legal citations can

be obtained from SSA. Due process.

Greenawalt v. Apfel, No. 99–CV–2481 (E.D.N.Y. December 26, 1999). In a nationwide class action settlement agreement, the Commissioner agreed to extend the

practices and procedures followed in Pennsylvania pursuant to Page in all SSI overpayment cases where the recipient seeks waiver. Notices must comply with the

standards used in Buffington and Page. Settlement agreement. Challenge was

Are you all prepared to give us an assessment as to what funding

based on due process and equal protection.

Chairman SHAW. And, Ms. Bovbjerg, can you do an assessment?

f

would be necessary in order to write new programs? You said you

are not a systems operator, and I am certainly not. Do you have

the expertise at the General Accounting Office to take a look at

what their plan is for doing this over four years and see if you can

see a way that it can short-circuited and whether new funding

would be required?

Ms. BOVBJERG. I believe someone at the General Accounting Office has that expertise.

Chairman SHAW. Okay. Well, take a shot at it.

Ms. BOVBJERG. But you were correct it wouldn’t be me doing systems work.

Chairman SHAW. Take a shot at it, please. Thank you very much.

The hearing is adjourned.

[Whereupon, at 11:41 a.m., the hearing was adjourned.]

[Submissions for the record follows:]

BILINGUAL SERVICES WORKING GROUP

October 6, 2000

The Honorable E. Clay Shaw, Jr.

Chairman, Social Security Subcommittee

Committee on Ways and Means

U.S. House of Representatives

1102 Longworth House Office Building

Washington, D.C. 20515

Dear Representative Shaw:

Thank you for the opportunity to submit written comment for the hearing record

on the very important issue of the quality and effectiveness of Social Security notices. Although the Social Security Administration (SSA) has put some effort into

notice improvement, many notices remain unintelligible to the public, who are being

held increasingly responsible through the various anti-fraud initiatives for understanding and responding appropriately to the complex rules and reporting responsibilities in the benefit programs administered by the agency. As the agency moves

forward with its programs to encourage disability benefit recipients to work, it is

critical for the agency’s notices to clearly explain the rules and recipient responsibilities in the work incentive programs, as well as the effect of work on benefits. Understanding the agency’s notices is an especially difficult problem for those with cognitive limitations, mental impairments, low educational levels, and for those who do

not speak English or have limited English proficiency.

Because I write on behalf of the Bilingual Services Working Group, I will confine

the remainder of this statement to issues involving SSA customers with limited

English proficiency. The Bilingual Services Working Group is a national group of

Social Security and SSI advocates who have been working for several years with

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SSA to increase access to SSA’s services for persons with limited English proficiency.

The pressing issue for persons with limitations in English is the need to receive

notices in a language they will understand. In order to make that happen, SSA

must develop the capability to identify the language spoken by each of its customers. Currently, the only language, other than English, in which the agency even

attempts to provide written notices in Spanish. However, even this limited attempt

is not well executed because SSA does not, at present, determine and capture the

language spoken by its customers, except for new claims.

As you know, the President recently issued an Executive Order on ‘‘Improving Access to Services for Persons with Limited English Proficiency.’’ 65 Fed. Reg. 50119

(Aug.16, 2000). The Executive Order requires each agency administering a Federally

conducted program to develop and implement a plan consistent with the compliance

standards established for the States by the Department of Justice Office of Civil

Rights. 65 Fed. Reg. 50123 (Aug.16, 2000). This order will go far to ensure equal

access to services. It will also enhance program efficiency and integrity. Unfortunately, the Executive Order makes clear that it cannot be enforced against Federal

agencies.

If the OCR standards were applied to SSA, the agency would clearly be required

to identify the languages spoken by its customers and provide written notices in

many different languages. It is unlikely that any other benefit agency in the nation

serves as a great number of recipients who are limited in English proficiency. The

eligibility rules for the Supplemental Security Income (SSI) program are particularly complex, requiring frequent contact with and many notices from the agency,

and the percentage of aged SSI recipients who are limited in English proficiency

continues to grow each year. Yet, the agency is woefully behind in providing notices

in a language the benefit recipient understands.

SSA needs to provide written notices in the languages spoken by its customers

and must place the highest priority on identifying the languages spoken by all SSI

recipients. Until SSA has the capability of capturing the language spoken by its customers, it is unable to send notices in a language the customer understands. It is

also unable to provide timely and effective service with interpreters when it does

not know the language the customers speaks. SSA must undertake the necessary

systems changes now to identify and capture language preference to avoid an even

larger workload later on and further delays in providing these critical services.

SSA has made great strides over the past few years in the development and implementation of its excellent policy with regard to the provision of interpreters for

conducting SSA business. It now needs to make similar progress on the provision

of written notices in the customer’s language. There are highly dedicated individuals

within the agency who participate in a work group for improving services to individuals with limited English proficiency. Further progress will be hampered, however,

unless and until the agency has the ability to capture the languages spoken its customers.

SSA undoubtedly sends out more notices to the public on issues of vital importance than any other Federal or State agency. It should set the example when it

comes to providing notices in the languages of its customers. I urge the Committee

to determine what needs to be done to enable the agency to meet the written notice

standards set forth in the exemplary OCR policy guidance. The Executive Order

should not be ignored simply because it is unenforceable against SSA. Its spirit

should be followed because it is good public policy for the reasons stated above.

Respectfully submitted,

Linda L. Landry, Esq.

Disability Law Center, Boston, MA

Gerald McIntyre, Esq.

National Senior Citizens Law Center,

Los Angeles, CA

Gillian Dutton

Northwest Justice Project, Seattle, WA

Edwin Soto-Lopez

Greater Upstate Law Project, Rochester,

NY

Christopher Bowes, Esq.

Cedar, New York, NY

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CENTER FOR DISABILITY ADVOCACY RIGHTS, INC.

NEW YORK, NY 10003

October 9, 2000

The Honorable E. Clay Shaw, Jr.

Chairman of the Subcommittee on Social Security

Committee on Ways and Means

U.S. House of Representatives

1102 Longworth House Office Building

Washington, D.C. 20515

Dear Representative Shaw:

I am writing to submit these comments for inclusion with the September 26, 2000

hearing record on the issue of the quality of the Social Security Administration’s

(SSA) benefit notices and the status of SSA’s actions to address notice improvement.

At the outset, let me state how appreciative I am to the Committee for addressing

these problems and for holding this hearing to place pressure on SSA to remedy the

notice problems that remain essentially unchanged despite over 8 years of promises

to correct them.

My name is Christopher J. Bowes and I am the Executive Director of CeDAR, the

Center for Disability Advocacy Rights. CeDAR is a not for profit poverty law office

providing legal advice and representation to poor persons with disabilities and older

persons before the Social Security Administration. Through our daily work, CeDAR’s

staff has a wealth of experience dealing with the problems created by SSA’s poorly

drafted Supplemental Security Income (SSI) and Social Security Disability (SSD)

benefit notices. CeDAR’s attorneys are also co-counsel for eight of the thirteen

named plaintiffs and the plaintiff class in Ford, et. al. v. Apfel, 87 F. Supp. 2d 163

(E.D.N.Y 1999), the nationwide SSI class action that successfully challenged the

adequacy of SSI notices mentioned in the GAO’s report.

I hope that the Committee will consider incorporating the entire Ford decision

with the record of this hearing as the findings contained therein provide a careful

analysis of the issues before the Committee, including SSA’s failure to make any

significant headway with respect to Notice improvement since September 1992 when

the Office of the Inspector General issued a report harshly critical of SSI financial

notices. Moreover, while I know that the Committee has heard testimony severely

critical of the quality of SSA’s notices, I believe that the Ford decision provides additional detail regarding the harm visited to over 6.5 million SSI recipients.

Highlights of the Court’s Decision in Ford

The Court found that SSA’s SSI notices violated due process because the notices

fail to convey essential factual and legal information necessary to inform the reader.

The Court found that the risk of erroneous deprivation was great given that SSI

recipients already subsist on the edge of poverty. Finally the Court held that SSA

would not be unduly burdened if required to correct the SSI notices.

• The Notices Fail to Convey Underlying Factual and Legal Assumptions

The Court noted that it was common knowledge that SSA’s SSI notices failed to

contain the factual and legal premises with which a person can make a decision as

to the correctness of the notice. The Court cited the Office of Inspector General’s

September 1992 report recommending the addition of abenefit worksheets itemizing

gross payment and all applicable deductions. The Court also cited the 1994 General

Accounting Office’s (GAO) report finding that even GAO staff with an accounting

background and years of Social Security program knowledge had difficulty determining or verifying specific pointscontained in the SSI notices. Several of the named

plaintiffs testified to the fear caused by the SSI notices that they could not understand, leaving them upset and humiliated.

• The Likelihood of Erroneous Deprivation is Great

Next the Court considered the likelihood that a confusing SSI notice would erroneously deprive an SSI recipient of desperately needed cash assistance. Each recipient of a potentially erroneous SSI notice is either elderly or suffering from severe

mental and/or physical disability. SSA’s own witnesses testified that SSI claimants

are often intimidated simply by the fact they have received a government letter. It

is to this audience that the inadequate SSI notices are sent, and the recipient is

placed in the position of tryingto first ascertain whether a negative determination

has been made against them, and secondly whether it is factually and legally proper. Although SSA provides for a 60-day appeal period, the notice recipient must in

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1 I am aware that this Committee has recently heard testimony regarding a possible amendment to the Act that would allow withholding of past due SSI benefits for payment of attorneys

fees. While this proposed amendment is likely to encourage more private attorneys to represent

SSI claimants seeking disability benefits, the amendment will not help SSI claimants who seek

clarification of their SSI notices for the simple reason that SSI financial notice cases typically

do not result in an award of past due benefits.

fact make a decision whether to appeal within 10 days in order to maintain their

benefits at the status quo. While SSA has an 800 telephone number where a claimant can call toll free for information, that system requires that the caller be on

SSA’s MSSICS computer system. As it turns out, only twenty percent of all SSI recipients have their information stored on MSSICS, making a call to the 800 number

an inadequate solution for the vast majority of SSI recipients. Moreover, there is

a dearth of trained poverty law attorneys available to assist these individuals.1

• Revising the Notices Will Not be Unduly Burdensome on SSA

Finally, the Court considered whether notice improvement would be unduly burdensome for SSA. SSA provided testimony that notice improvement would require

substantial modification to its computer systems. The Court considered the testimony of Charles Wood, Associate Commissioner of the Office ofSystems and Design

and Development, who testified that it would take six months for three to four computer programmers to test and debug the proposed changes and two years to fully

implement the changes sought by the plaintiffs. Other SSA experts testified that

SSA would have to buy additional computers to handle the additional workload imposed by improved notices. On the other hand, SSA’s witnesses testified that improved notices would reduce SSA’s workload because clear notices result in fewer

inquires to SSA by recipients seeing notice clarification. Overall, the Court held that

notice improvement would not unduly burden the SSA.

The Glacial Pace of SSI Notice Improvement

We are obviously concerned regarding the slow pace of SSA’s proposed implementation, particularly given Associate Commissioner Wood’s testimony at trial that all

the changes sought by the Ford plaintiffs could be completed in two years. We are

therefore surprised to hear that it may take 10 years to fully implement all of the

changes. It has also come to our attention that SSA has no intention of issuing any

worksheets in so-called ‘‘very complex’’ cases (representing three percent of all notices) because it would be too difficult. SSA’s timeline and the scope of implementation should be revisited and scrutinized so that all SSI financial notices include

worksheets and that this is done as soon as possible, not at a pace that is administratively convenient.

We are also vexed at the suggestion mentioned in the GAO report that SSA held

off on SSI notice improvement pending the outcome of the Ford litigation. Because

this is prominently stated twice in the GAO report, it should be noted that this

statement is not supported by fact. Throughout the course of this litigation, the

Court repeatedly urged the parties to settle and assigned a magistrate judge to preside over the proceedings. Plaintiffs would have been more than happy if SSA had

agreed to implement the worksheet and other changes suggested in 1992 by the OIG

and in 1994 by the GAO. At trial, it was established that SSA opposed the OIG and

GAO suggestions regarding worksheets because such changes were perceived by

SSA to be too costly and burdensome.

Lastly, I must bring to the Committee’s attention problems with SSA’s intention

to increasingly rely on the Internet as a means of disseminating program information to SSI and SSD recipients. See September 26, 2000 Testimony of Deputy Commissioner William Halter regarding the Online Notice Retrieval System (ONRS).

While this may generally be a worthwhile endeavor, with respect to the SSI population, the unstated assumption that SSI recipients are computer literate and have

ready access to computers is unfounded. To the contrary, the technological ‘‘digital

divide’’ is a tremendous obstacle to the effective use of the ONRS. See Falling

Through the Net, July 8, 1999 and revised in November 1999. The July 1999 report

is available on the Internet at http://www.ntia.doc.gov/ntiahome/fttn99/contents.html; see also www.digitaldivide.gov. It is noted that ‘‘[w]hile a significant majority of Americans (58.9 percent) making over $75,000 frequent the Internet from

any location, many fewer persons (16.0 percent) at the lower end of the payscale

($5,000$10,000) use the Internet.’’ A quick overview of this report will debunk any

assumption that the poor are computer literate and with ready access to the Internet.

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Thank you again for considering these comments and for tackling this difficult

issue. Please feel free to contact me if you have any questions regarding this letter

or the status of the Ford case.

Respectfully submitted,

CHRISTOPHER JAMES BOWES

Executive Director

[An attachment is being retained in the Committee files.]

Statement of Gerald R. Tarutis, National Alliance for the Mentally Ill,

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Arlington, VA

Chairman Shaw, Representative Matsui and members of the Social Security Subcommittee, I am Gerald R. Tarutis of Seattle, Washington. In addition to serving

on the Board of the National Alliance for the Mentally Ill (NAMI), I am also an attorney in private practice. I am pleased to have the opportunity to share NAMI’s

views regarding ongoing problems with the Social Security Administration’s letters

to beneficiaries with disabilities and their families.

In over 25 years of practicing law, I have represented many clients with severe

disabilities who have been claimants for Social Security cash benefits. While some

of my clients’ cases before Social Security were dealt with in a fair and straightforward manner, many others found the experience of endlessappeals, examinations

and bureaucratic delays frustrating and in many cases, humiliating. This is especially true for adults with severe mental illnesses and other disabilities that are not

readily apparent to the staff of the Social Security Administration (SSA) field offices.

Too many adults with severe mental illnesses, and their families, find their dealings with the SSA on matters ranging from appeals for denial of eligibility, to reporting wages, to seeking a straight answer regarding an alleged overpayment to

be intimidating. Nowhere is this process more frustrating than in trying to interpret

and understand the letters that claimants and beneficiaries receive from the agency.

It would be difficult for me to overstate the confusion and aggravation that NAMI

members feel when theyreceive important correspondence from SSA regarding eligibility, benefit adjustments and overpayments with conflicting and confusing information.

For adults with serious brain disorders including schizophrenia, manic-depression,

major depression and severe anxiety disorders both SSI and SSDI serve as a critical

Federal safety-net program that is essential to meeting the most basic needs for

food, clothing and shelter. In NAMI’s view, it is critically important that these most

vulnerable Americans, and their families, get clear information from SSA about eligibility and benefits. The receipt of confusing or conflicting information about eligibility and benefits canhave disastrous consequences particularly for individuals who

work part-time under SSA’s limited employment programs, i.e. 1619 for SSI beneficiaries and the trial work period (TWP) for SSDI beneficiaries. As these programs

expand under the Ticket to Work and Work Incentives Improvement Act (P.L. 106–

170), it will be all the more important for beneficiaries to get clear and precise information from SSA about where they stand.

In fact, TWWIIA itself points to the frustration that individuals with disabilities

have had over the years with SSA’s letters. As an aside, NAMI would like to again

thank you Chairman Shaw, and all the members of this Subcommittee on both sides

of the aisle, for your leadership in passing this historic legislation to help adults

with severe mental illnesses and other disabilities go to work. As you know, Congress included a provision in TWWIIA authorizing a new ‘‘benefits counseling and

assistance’’ program to assist beneficiaries in their decisions regarding employment.

What is most noteworthy about this initiative is that Congress insisted that these

benefits planning programs be independent of SSA largely because of the low level

of confidence among beneficiaries and their families about the accuracy of the information they receive from Social Security. While some of this may be caused by past

histories of overpayments (which too often results from confusing or out of date information given by SSA field office staff), it is surely also a result of confusing and

difficult to understand letters from SSA itself.

An examination of the General Accounting Office’s (GAO) recent report on SSA’s

longstanding problems with its letters to the public illuminates why beneficiaries

and their families are so frustrated. GAO reviewed several categories of letters, including those awarding and adjusting SSI benefits. In analyzing these letters, NAMI

55

understands that the GAO used a team of writing consultants (including English

teachers) to assess whether the letters communicated clearly and to verify the types

of problems that regularly occur with these letters.

The GAO’s findings are remarkable. The majority of the letters in every category

(including SSI eligibility and adjustments) did not clearly communicate on at least

one of the following: 1) SSA’s actual decision on the claimant’s action, 2) the basis

for SSA’s decision, 3) the financial recourse of SSA’s decision on the beneficiary, or

4) the recourse available to the beneficiary. Among the factors noted by GAO and

their consultants were illogically sequenced information, incomplete or missing information, contradictory information and confusing numerical information.

The GAO report notes that:

• An unclear explanation of the basis for SSA’s decision was the most widespread

problem cited by the GAO, i.e. 80 percent of sampled letters were described as unclear, principally because the cover sheet failed to disclose all of the decisions contained in the attachments.

• 100 percent of the sampled SSI award letters do not explain the relationship

between program rules and the amount of the actual SSI benefit (86 percent of SSI

benefit adjustment letters failed to explain this as well).

• More than half of the surveyed SSI benefit adjustment letters lacked a clear

statement of timing or the amount of change in benefits.

• Letters sent to SSI beneficiaries who are eligible for a previous, but not a future, month’s benefit, were unclear in communicating all of the criteria.

• A startling 95 percent of award letters for Social Security benefits (including

those to SSDI claimants) fail to detail how to appeal the decision.

In its report, GAO noted that while SSA acknowledges many of these problems,

changes have been slow in coming. Both GAO and SSA appear to acknowledge that

comprehensive revision of the language used in beneficiary letters is needed, as well

as an overhaul of the computer software used to generate these letters. NAMI is

hopeful that this process will be accelerated as a result of a 1999 Federal court

order for SSA to develop a comprehensive plan to improve its SSI letters. Unfortunately, GAO reports that SSA has ‘‘not placed a priority on improving its letters to

the public, and it will be years before improvements are completed to most of these

letters, even if there are no more delays and SSA adheres to its current plans.’’

Because so many people with the most severe and disabling mental illnesses rely

on SSI and SSDI for basic support to live in the community, NAMI believes that

SSA should take the steps necessary to ensure that information regarding eligibility

and benefits is understandable. NAMI would concede that the complicated nature

of SSA’s disability cash benefit programs and their interaction with health care programs does not make this task easy. However, the GAO report makes clear that improving the content of letters to beneficiaries has not, this far, been a high priority

at SSA.

What needs to be done? NAMI recommends that Congress direct the Commissioner to put in place acomprehensive plan to improve SSI benefit award and adjustment letters. As the GAO recommended in its report, such a system should include performance measures that hold SSA accountable, with specifictimetables and

outcomes to assess progress.

Moreover, SSA should invest in training for field office staff to help these officials

better understand severe mental illness and the unique challenges that they (and

their families) face in becoming eligible forSSI and SSDI. The overriding experience

of too many NAMI members is that the stigma associated with severe mental illness, and the lack of understanding among field office staff has served as a barrier

to getting quick, accurate and fair decision from the agency. On August 21, SSA

completed work on revised criteria for ‘‘Evaluating Mental Disorders.’’ These new

criteria revise SSA ‘‘adult neurological listings.’’ SSA is now in the process of training field office staff and State disability determination offices on these criteria.

NAMI believes that this provides a unique opportunity for SSA to educate field office staff and State determination agencies on how to more effectively serve claimants and beneficiaries with severe mental illnesses.

Mr. Chairman, thank you for the opportunity to present testimony on this important issue for NAMI’s consumer and family membership.

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Statement of Charles Robert, Robert, Lerner & Robert, Rockville Centre,

NY

Thank you for the opportunity to present testimony to be placed in the Record

of the Hearing on Improving Social Security Notices. Since the 1974 beginning of

the Supplemental Security Income (SSI) program implemented by President Nixon

to replace State welfare programs providing benefits to theaged, blind, and disabled,

I have represented SSI recipients appealing incomprehensible SSI denial and reduction Notices.

Chairman Shaw’s Opening Statement accurately highlights the importance of the

accurate and comprehensible Notices for SSI recipients. ‘‘The amount of their Social

Security or SSI check may be the difference between paying the monthly bills or

not.’’

A. The clandestine SSA nonacquiescence policy as a root cause of the incomprehensible SSI Notices.

In the past two decades of legal representation, almost all of my SSI clients’ appeals have included a challenge the SSA nonacquiescence policy whereby the SSA

has denied or reduced SSI benefits because of a standard established by Executive

Branch counsel and not as established in a duly promulgated SSA regulation. See

Glasgold v. Califano, 558 F. Supp. 129 (E.D. N.Y. 1982), aff’d sub. nom. Rothman v. Schweiker, 706 F. 2d 407 (2nd Cir. 1983), cert. den. sub. nom. Guigno v. Schweiker, 464 U.S. 984 (1983). Ruppert v. Bowen, 671 F.Supp. 151 (E.D.N.Y. 1987),

aff’d in part, rev’d in part, Ruppert v. Bowen, 871 F. 2d 1172 (2d Cir. 1989), Gordon v. Shalala, 55 F. 3d 101 (2d Cir. 1995), cert. den. 116 S. Ct. 1317 (1996).

As a result of the HHS and SSA nonacquiescence policy, the SSA Commissioner

has not equally applied SSI standards in all 50 States as intended by the Congress.

This is one of the root causes of the incomprehensible SSI Notices.

The survival of this clandestine nonacquiescence policy into 2000, has been in

large part because of the continued use of the indecipherable SSA Notices which do

not explain the standard applied or cite to the applicable law. Over the past decades

HHS General Counsel Juan del Real, SSA Chief Counsel Donald Gonya, and SSA

General Counsel Fried knew that if they had explained the ‘‘nonacquiescence’’ policy

in the SSI Notices, then even the legally defenseless aged, blind, and disabled SSI

recipients would have intuitively known that something was wrong when a different

standard was used to compute monthly SSI benefits for SSI recipients who lived in

different States in a Federal program established by the Congress to apply a uniform Federal standard.

As explained in more detail in the Sections discussing Solicitor General Waxman’s

courageous decision to withdraw the Ford appeal, the accuracy of SSA General

Counsel Fried’s May 22, 1997 sworn Congressional testimony, the implementation

of the Jackson nonacquiescence policy, and SSA GeneralCounsel Fried’s decision not

to acquiesce to Christensen v. Harris County, SSA General Counsel Fried has known

that when an ‘‘acquiescence’’ decision was made to limit the application of Circuit

Court decision to that Circuit’s States, the SSA computer was not reprogrammed.

Thus, SSA General Counsel Fried has always cynically known that there was no

practical difference between the pre-June 3, 1985 ‘‘nonacquiescence’’ policy of HHS

General Counsel del Real and the post-June 3, 1985 ‘‘acquiescence’’ policy of SSA

General Counsel Fried because other than the named litigants in an ‘‘acquiescence’’

case, the SSA Notices sent to all other similarly situated SSI recipients within that

Circuit and in all other Circuits was the ‘‘incorrectly’’ decided Executive Branch

counsel’s interpretation of the SSA statute and implementing regulations that the

unappealed Circuit Court had rejected.

When the new President appoints the new SSA Commissioner, that new SSA

Commissioner’s duty will be to comply with Judge Sifton’s Ford decision and construct ‘‘Ford’’ Notices that cure the present due process violations. The new SSA

Commissioner will have to program the SSA computer to explain the standard that

Congress intended to be applied equally in all 50 States. If the same legal standards

are applied in all 50 States, then the new SSA Commissioner will have de facto

ended SSA General Counsel Fried’s clandestine nonacquiescence policy.

If the new SSA Commissioner’s staff provides him/her with accurate information,

then the new SSA Commissioner will learn that for decades incorrect standards had

been used to deny and reduce six million SSI recipients benefits based on the legal

opinions of HHS General Counsel del Real, SSA Chief Counsel Gonya, and SSA

General Counsel Fried. If the SSA staff provide accurate information, then the new

SSA Commissioner will also learn that these Executive Branch counsel believed that

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they had the extraordinary authority to be de facto Supreme Courts and in effect

‘‘overrule’’ Circuit Court decisions by not changing the standards used in all 50

States. The new SSA Commissioner will also learn that in order to prevent any case

from percolating to the Supreme Court, that these Executive Branch counsel had

made the critical litigation decisions not to appeal what they believed to have been

the ‘‘incorrectly.’’ decided District and Circuit Court decisions. See 20 C.F.R.

§ 416.1485 Application of Circuit Court Law. Hence, the critical timing of this Subcommittee’s Hearing prior to the appointment of the new President’s new SSA Commissioner who will have the immediate duty to construct new SSI ‘‘Ford’’ Notices

to comply with Judge Sifton’s now unappealed Ford v. Apfel certified nationwide

class decision. Therefore, the Chairman should consider raising the SSI Notice issue

at the confirmation hearing of the new President’s SSA Commissioner and inquire

of the new SSA Commissioner whether he/she will be implementing SSA General

Counsel Fried’s nonacquiescence policy whereby the SSI standards have not been

equally applied to six millions aged, blind, and disabled SSI recipients.

B. Solicitor General Waxman’s courageous decision to withdraw SSA General

Counsel Fried’s Ford appeal

On September 11, 2000, Solicitor General Waxman courageously withdrew SSA

General Counsel Fried’s Second Circuit appeal of Judge Sifton’s Ford v. Apfel, 87

F. Supp. 2d 163), decision which certified a nationwide class of SSI recipients whose

due process rights were violated because the SSI Notices did not explain the standards applied or cite to the applicable law. Upon information and belief, the key reason why Solicitor General Waxman withdrew the appeal was because Solicitor General Waxman, the ‘‘people’s lawyer’’, apprehended the impossibility of defending SSA

General Counsel Fried’s clandestine nonacquiescence policy when ‘‘Ford’’ Notices

would have to explain the same standards to be applied in all 50 States and cite

to the same Federal regulations duly promulgated pursuant to the

SSACommissioner’s compliance with the Administrative Procedure Act (APA).

In Ford, Judge Sifton discussed the plight of SSI recipients who did not the reasons why the benefits were denied by citing to Gray Panthers v. Schweiker, 652 F.

2d 146, 168–169 (D.C. Cir. 1980):

Unless a persons is adequately informed of the reasons for the denial of a legal

interest, a hearing serves no purpose—and resembles more a scene from Kafka than

a constitutional process. Without notice of the specific reasons. . .a claimant is reduced to guessing what evidence can or should be submitted in response and driven

to responding to every possible argument. . .at the risk of missing the critical one

altogether....Id. at 181.

Judge Sifton’s harsh conclusion was based in part on SSA Commissioner Apfel’s

own SSA computer experts trial testimony which revealed the problems with the

SSA computer and the limitations in the SSI Notices that were sent to six million

legally defenseless aged, blind, and disabled citizens. That trial testimony revealed

that when an ‘‘acquiescence’’ decision was made by Executive Branch counsel, the

SSA computer was not reprogrammed with the new ‘‘acquiescence’’ standard. As a

result, the old ‘‘nonacquiescence’’ standard continued to be applied in all cases except for the litigants in the ‘‘acquiescence’’ case. This was not an innocent mistake

of an overburdened Federal agency with an outdated computer, but the cold calculating intentional decision of Executive Branch counsel to clandestinely implement

a nonacquiescence policy. See City of New York v. Bowen, 106 S. Ct. 2023 (1986).

As discussed in more detail regarding the Jackson nonacquiescence policy, upon

information and belief, Solicitor General Waxman apprehended that the ‘‘Ford’’ Notices will have to be constructed with explanations of the same legal standards applied and cite to the same regulation to be equally applied in all 50 States. If SSA

General Counsel Fried’s clandestine nonacquiescence policy continues unabated,

then the ‘‘Ford’’ explanation of the SSA standard and the citation to the applicable

law will result in evenmore incomprehensible Notices as the new SSA Commissioner

will have to explain General Counsel Fried’s reasons why the same standards are

not to be applied in each Circuit.

Given that the Solicitor General represents the citizens of the United States and

not the client agency, the courageous Solicitor General Waxman has had to confront

the toxic legacy of the continuation of the pre-June 3, 1985 nonacquiescence policy

of HHS General Counsel del Real that on July 25, 1985Members of Congress had

been advised had ended on June 3, 1985. Since that July 25, 1985 sworn Congressional testimony had not been accurate, Solicitor General Waxman knew that he

could no longer ratify the clandestine implementation of the nonacquiescence policy

of HHS General Counsel del Real, SSA Chief Counsel Gonya, and SSA General

Counsel Fried when the ‘‘Ford’’ Notices were constructed and sent to six million SSI

recipients in all 50 States.

58

Upon information and belief, Solicitor General Waxman apprehended that contrary to the sworn July 25, 1985 Congressional testimony, the nonacquiescence policy did not end on June 3, 1985 because the HHS–SSA computer had not been reprogrammed when HHS General Counsel del Real, SSA Chief Counsel Gonya, and

SSA General Counsel Fried made their subsequent ‘‘acquiescence’’ decisions. Upon

information and belief, Solicitor General Waxman apprehended that SSA General

Counsel Fried’s May 22, 1997 sworn Congressional testimony was not accurate because the same legal standards have not been applied at all levels of SSA adjudication. Upon information and belief, Solicitor General Waxman has determined that

AG Reno’s DOJ should end its implementation of SSA General Counsel Fried’s Constitutionally suspect ‘‘co-ordinate Branches of Government’’ theory that Executive

Branch counsel has equal authority to the Judiciary to interpret the intent of Congress.

Thus, Solicitor General Waxman’s courageous litigation decision to withdraw SSA

General Counsel Fried’s Ford appeal was based on his realization that the new

‘‘Ford’’ Notices will have to explain the samestandard in all 50 States and cite to

the same regulatory standards that the Congress intended were to be equally applied by the SSA Commissioner in all 50 States. Therefore, because the Ford appeal

has been withdrawn, whomever the new President appoints as the new Attorney

General, the new AG will have to instruct the client agency to cure the due process

violations as determined by Judge Sifton in his now unappealed Ford decision.

C. SSA General Counsel Fried’s sworn May 22, 1997 Congressional testimony that

the nonacquiescence policy had ended in the June, 1985 and that the same legal

standards were applied at all levels of SSA adjudication

On May 22, 1997, Social Security Administration General Counsel Arthur Fried

testified before the Committee on Judiciary Subcommittee on Commercial and Administrative Law and advised Members of Congress under oath that the Social Security Administration does acquiesce to Circuit Court decisions andthat the nonacquiescence policy had ended in June, 1985. SSA General Counsel Fried also testified that the same legal standards were applied at all levels of SSA adjudication.

Copy of the May 22, 1997 sworn Congressional testimony is attached as Exhibit A.

SSA General Counsel Fried explained the SSA ‘‘acquiescence’’ policy:

When a U.S. Circuit Court of Appeals publishes a decision on a claim for

Social Security Benefits, or Supplemental Security Income (SSI) payments,

and that decision conflicts with our national policy, we either issue an Acquiescence Ruling, change our national policy, or, in rare cases, seek review

by the Supreme Court. We never ignore these decisions. This has been our

policy since 1985, and the publication of our current policies in regulations

in 1990 essentially ended criticism by the courts in this area. Emphasis

Added.

General Counsel Arthur Fried testified that the nonacquiescence policy had ended

in June, 1985. This was prior to the July 25, 1985 sworn House Subcommittee testimony of Acting SSA Commissioner Martha Mc Steen, Deputy Attorney General

Carolyn Kuhl, and SSA General Counsel Donald Gonya testified that the pre-June

3, 1985 nonacquiescence policy of HHS General Counsel del Real had ceased:

This is not the first hearing before the subcommittee on administrative law

concerning this issue. Back in 1985, SSA testified about the change in our

policy from nonacquiescence to acquiescence. Prior to that point, when a circuit court decision was inconsistent with our interpretation of the law and

regulations, SSA’s practice had been to apply the decision only to named litigants in that particular case. In June of 1985, however, reacting to criticism

in both Congress and the courts, we announced a new policy wherein we

would apply circuit court decisions at the hearings level, following an Acquiescence Ruling, in adjudicating claims in the circuit. No legislation was

enacted at that time. Since then, we have gone even farther—we acquiesce

to circuit court decisions at all levels of administrative adjudication.

SSA General Counsel Arthur Fried advised how national policy is made in collaboration with the Department of Justice when there are no regulations promulgated pursuant to the Administrative Procedure Act by the application of a ‘‘careful

scrutiny’’ test by ‘‘SSA officials’’ and the Office of GeneralCounsel:

Instead, the interpretation of a circuit court’s decision and its consistency

with SSA policy is appropriately made with careful scrutiny by SSA officials

who have a broad understanding of national policy and who work closely

with Department of Justice attorneys in this effort. If an ALJ or other decisionmaker believes that a particular circuit court decision conflicts with

59

SSA policy, the decisionmakers can provide input to the Office of the General

Counsel through the appropriate channels about either appealing the case or

issuing an Acquiescence Ruling.

SSA General Counsel Arthur Fried, apparently sincerely, emphasized that it is

the Social Security Commissioner who makes all the rules in order to have uniformity throughout the Social Security Administration:

Nonetheless, it remains the Commissioner’s responsibility to decide what Agency

rules are. This is vital in order to maintain decisional consistency not only within

a particular adjudicatory level, but cross levels as well—a key goal in our process

unification efforts to obtain similar results in similar cases at all levels of SSA adjudication. There is no other way to ensure that constitutional and statutory requirements are properly and consistently applied and that the Agency can be held accountable for any failure to do so. Emphasis Added.

However, then SSA General Counsel Arthur Fried admits to the implementation

of the nonacquiescence policy that occurs when a circuit court renders its decision

that conflicts with the national policy. He advises that the Social Security Administration does not comply with the APA and amend the policy by rulemaking, but

rather, issues an Acquiescence Ruling regarding that particular circuit:

As I stated before, whenever any circuit court decision conflicts with our national policy, SSA’s published regulations require us to issue an Acquiescence Ruling if we are not changing national policy unless it is one of the

rare occasion that we appeal. It is the Agency’s responsibility to tell our decisionmakers how to implement a conflicting holding when we do not appeal, but we do not arbitrarily reject circuit court decisions.

Needless to say, SSA General Counsel Fried did not inform the Members of the

House Subcommittee that he knew that the SSA computer was not reprogrammed

when an ‘‘acquiescence’’ decision was made. SSA General Counsel Fried also did not

inform the Members of the House Subcommittee that regulations were not applied

equally in all 50 States notwithstanding his representation that the same legal

standards were applied at all levels of SSA adjudication.

The ‘‘smoking gun’’ evidence of that fact SSA General Counsel Fried’s May 22,

1997 Congressional testimony was not accurate is found in the sworn Ford trial testimony of SSA Commissioner Apfel’s SSA computer experts and in SSA General

Counsel Fried’s implementation of the April 21, 1986 ‘‘Jackson’’ regulation, 20

C.F.R. § 416.1130 (b) , that is only applied in the Seventh Circuit States of Indiana,

Illinois, and Wisconsin. The Chairman should consider reading that Ford trial testimony and the Jackson regulation to determine for himself whether the May 22,

1997 sworn Congressional testimony of SSA General Counsel Fried was accurate.

D. The Jackson intra-circuit and inter-circuit nonacquiescence policy

Perhaps, the best evidence of how the SSA Notices have been intentionally deceptive, is SSA General Counsel Fried’s implementation of the Jackson nonacquiescence policy. Given the Ford nationwide class, SSA Commissioner Apfel will now

have to decide whether the ‘‘Ford’’ Notices willexplain the SSI income standard that

is to be applied when an SSI recipient, who cannot afford to pay the rent with the

SSI monthly payment that is set below the poverty level, receives a private rent subsidy to avoid eviction. The history of the Jackson regulation reveals the importance

of compliance with the APA in order for SSI recipients and the public be advised

of the standards applied in a national program which Congress intended to have the

uniform standards applied by SSA in all 50 States.

On January 6, 1984, fourteen years prior to the Christensen decision, Chief Judge

Sharpe in Jackson v. Heckler, 581 F. Supp. 871 (N.D. Ind. 1984), ordered Secretary

Heckler to promulgate an SSI in-kindincome regulation in order to comply with the

Seventh Circuit’s unappealed 1982 Jackson remand order:

As an initial matter, the court will consider the parties’ dispute over whether the Secretary must amend the relevant regulation or simply modify internal operation procedures and manuals. The plaintiff argues that the relief

mandated by the court of appeals will be effectively implemented only if

SSI claimants and their representatives or advocates have access to the

modifications throughout the regulations found in the Federal Register and

the Code of Federal Regulations. Otherwise, persons using the normal research tools will find nothing but the regulation which found inadequate by

the court of appeals and will have no indication that it has been modified.

While instructions and guidelines in internal operating manual and policy

statements may be effective means of informing social security administration personnel it is not an effective means of informing claimants and their

representatives. There is simply no basis for assuming internal operational

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manual are generally available. Furthermore, the Secretary has not advanced any compelling reason why the regulation should not be amended. Therefore, this court will require and amendment to the challenged regulation. Emphasis Added.

On July 25, 1985, Acting Commission Martha Mc Steen, DOJ Deputy Assistant

Attorney General (DAAG) Carolyn Kuhl, and SSA Chief Counsel Donald Gonya advised a House Subcommittee considering legislation to end the HHS nonacquiescence policy that the nonacquiescence policy of HHS General Counsel del Real had

ended on June 3, 1985 and that Jackson was not a ‘‘nonacquiescence case.’’ They

announced the establishment of a Policy and Review Committee (PRC), that would

be reviewing all court decisions:

. . .recommend to the Commissioner which issues and cases should be relitigated in order to obtain a definitive ruling from the appropriate Court

of Appeals of the Supreme Court. For those cases in which relitigation is

not recommended, the Committee will address what changes, if any, in SSA

policies and procedures need to be made. Acting Commissioner Mc Steen’s

June 24, 1985 Implementation of Acquiescence Policy attached as Exhibit B.

On October 10, 1985, Judge Sharpe issued a Jackson order requiring publication

of the amendment to the SSI in-kind income regulation to comply with the Seventh

Circuit’s order in Jackson v. Schweiker, 683F. 2d 1076 (7th Cir. 1982). However,

contrary to the July 25, 1985 Congressional testimony, Secretary Heckler limited

the proposed regulation to only the State of Indiana.

On December 3, 1985, Judge Bua in the unappealed Beckless I v. Heckler, 622 F.

Supp. 715 (D.C. Ill. 1985), certified an Illinois class of SSI recipients and applied

the Jackson to Illinois SSI recipients:

However, it is not clear from the Jackson decision whether the Secretary

is refusing completely to comply with the Seventh Circuit’s decision. The

Secretary has not issued a policy of non-acquiescence as was done in Lopez, and without further evidence, it is unclear whether the Secretary has failed

to perform her duties as a public official. Id. at 719. Emphasis Added.

On March 27, 1986, based on the unappealed Jackson v. Schweiker Seventh Circuit decision, Secretary Bowen certified a proposed amendment to the SSI regulation, 20 C.F.R. § 416.1130. However, without explanation, Secretary Bowen limited

the regulation’s application to only SSI recipients who resided in the Seventh Circuit States of Indiana, Illinois, and Wisconsin. See 51 FR 13487 (April 21, 1986).

This limitation was also contrary to the July 25, 1985 sworn testimony of Acting

Commissioner McSteen, DAAG Kuhl, and SSA Chief Counsel Gonya that the preJune 3, 1985 nonacquiescence policy had ended and that Jackson was not a non- acquiescence case.

Because the SSA computer was not reprogrammed within the Seventh Circuit

States, a decade later the Jackson intra-circuit nonacquiescence policy was explained in the unappealed Beckless II v. Chater, 909 F.Supp. 575 (N.D.Ill. 1995).

Judge Bucklo noted how SSA Chief Counsel Gonya’s interpretation of Jackson had

eviscerated the Seventh Circuit Jackson holding:

The defendant essentially argues that the ‘‘Exception’’ applicable to the Seventh Circuit should be read out of section 416.1130(b). Opposition def. br.

10. By its words, the exception does not confine a business arrangement to

payment of full rent charged by a landlord. Rather, a business arrangement

exists ‘‘when the amount of monthly rent required to be paid equals or exceeds the presumed maximum value. . . .’’ Id. at n. 4, p. 580. Emphasis

Added.

Notwithstanding his sworn May 22, 1997 Congressional testimony, SSA General

Counsel Fried continued to implement the clandestine Jackson nonacquiescence policy. In the unappealed Ragsdale v. Apfel, 999 F. Supp. 814 (E. D. Vir. 1998), Judge

Payne echoed Judge Bua’s 1985 admonishment of Secretary Heckler in Beckless I

and Judge Bucklo’s 1995 admonishment of Secretary Shalala in Beckless II, and admonished SSA Commissioner Apfel for not to applying the Jackson standard to Virginia SSI recipients:

This litigation need never have occurred. And, that it did, reflects poorly on

the Agency which elected not to seek review of the decisions issued by the

Second or Seventh Circuits and then put the Ragsdales to the needless task

of establishing the obvious: that the decisions of the Second and Seventh

Circuit were correct. Citizens residing in the Fourth Circuit should not be

required needlessly to incur costs and fees in order to achieve the rights

already enjoyed by those individuals residing in the Second and Seventh

Circuit. It may be that the Agency’s conduct is not sanctionable in this case,

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but it must be hoped that the Agency will not, in the future, pursue the

course which it has followed here. Id. at 824. Emphasis Added.

However, notwithstanding SSA General Counsel Fried’s sworn May 22, 1997 Congressional testimony, based on the advice of his counsel, SSA Commissioner Apfel

has continued to defy Judge Payne’s’ Ragsdale admonition. Fortunately, Solicitor

General Waxman decided not to defy Judge Payne’s Ragsdale admonition. Hence,

the litigation stage is now set for the new SSA Commissioner to construct ‘‘Ford’’

Notices to be sent to SSI recipients, like the Ragsdales, who reside in all 50 States

and will now be provided the basic due process rights of explanations of the standards applied to deny and reduce their benefits with the new SSA Commissioner citing to the applicable law.

E. SSA General Counsel Fried’s decision not to acquiesce to the Supreme Court’s

Christensen decision

On May 1, 2000, the Supreme Court decided Christensen v. Harris County, 120

S. Ct. 1655 (2000). Justice Thomas clarified the Chevron deference standard:

Here, however, we confront an interpretation contained in an opinion letter,

not one arrived at after, for example, a formal adjudication or notice-andcomment rulemaking. Interpretations such as those in opinion letters-like

interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant

Chevron-style deference. Id. at 1662. Emphasis added.

However, quite incredibly, SSA General Counsel Fried has determined not to acquiesce to Justice Thomas’ Christensen decision because he does not want to cite to

the duly promulgated regulations in the ‘‘Ford’’ Notices. Rather, SSA General Counsel intends to continue to use the multi-volumed POMS as the ‘‘law’’ to which the

‘‘Ford’’ Notices will cite. Upon information and belief, SSA General Counsel Fried

recommended to SSA Commissioner Apfel that the ‘‘Ford’’ Notices inform the SSI

recipients to surf the internet and to ‘‘call up’’ the cited POMS on the work-inprogress SSA home page to learn the reason why their SSI benefits were denied or

reduced.

SSA General Counsel Fried knows that if the SSA Commissioner acquiesces to

Christensen, then this will be the de facto end to his clandestine implementation

of the SSA nonacquiescence policy because the ‘‘applicable law’’ will be properly promulgated regulations and not the Executive Branch counsel created POMS. Hence,

the importance of the new President’s SSA Commissioner acquiescing to

Christensen when constructing the ‘‘Ford’’ Notices and programming the SSA computer. The Chairman now has an extraordinary October, 2000 opportunity to assist

six million legally defenseless SSI recipients by inquiring of SSA General Counsel

Fried the basis of his decision not to acquiesce to Christensen and not to include

in the ‘‘Ford’’ Notices citations to the ‘‘law’’ which is the duly promulgated regulations. It is most respectfully submitted that if the Chairman asks SSA General

Counsel Fried whether the proposed ‘‘Ford’’ Notice will be citing to the ‘‘Jackson’’

regulation that will be provided to the millions of SSI recipients in all 50 States

who cannot afford to pay their rent without a private rent subsidy, then SSA General Counsel Fried will inform the Chairman that in his legal opinion, as Executive

Branch counsel, he has the Constitutional authority not to heed the admonition of

Judge Payne in his unappealed Ragsdale decision.

The Chairman and the Committee are now witnesses to SSA General Counsel

Fried’s extraordinary expansion of HHS General Counsel del Real’s and SSA Chief

Counsel Gonya’s nonacquiescence policy which they applied to District and Circuit

Court decisions. That nonacquiescence policy has now become SSA General Counsel

Fried’s Constitutionally defying policy and practice not to acquiesce to a decision of

the United States Supreme Court. Hence, the importance of this Committee warning the new SSA Commissioner of the expectation that the SSA Commissioner will

acquiesce to Justice Thomas’ Christensen holding and in the ‘‘Ford’’ Notices cite to

applicable duly promulgated regulations.

Summary

Please excuse the harshness of the comments which have evolved over two decades of tortuous litigation challenging the HHS-SSA nonacquiescence policy notwithstanding the sworn Congressional testimony that the nonacquiescence policy

had ended in June, 1985. However, as Judge Sifton has determined, after taking

trial testimony from SSA Commissioner Apfel’s own expert witnesses, SSA Commissioner Apfel’s present administration of the SSI program as to SSI recipients is a

Kafkaesque procedure whereby SSA Commissioner Apfel does not explain in simple

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1SSA Key Workload Indicators, Hearings—Appeals—Civil Actions, Attorney Fees, for fiscal

years 1997 and 1998 respectively reveal that 69,369 and 78,991 requests for review to the Appeals Council were denied resulting in the issuance of the appended notice.

English the standards that he has used to deny and reduce benefits to legally defenseless aged, blind, and disable SSI recipients.

The present incomprehensibility of the SSA Notices is not because of the enabling

statute or duly promulgated regulations, but rather is a result of an expansion of

Executive Branch power based on the nonacquiescence policy and SSA General

Counsel Fried’s ‘‘co-ordinate Branches of the Government’’ Constitutional theory.

Thus, the seemingly simple issue of the production of readable SSI Notices masks

a more fundamental issue of the Executive Branch not only providing inaccurate information in sworn Congressional testimony, but now usurping the Constitutional

authority of the Supreme Court. Hence, theimportance of this Committee’s bi-partisan Report regarding Improving Social Security Notices becoming a Constitutional

challenge to the new Congress and the new SSA Commissioner.

Thank you for considering these comments and considering the suggestion that

the Chairman inquire of SSA General Counsel Fried whether he has recommended

to SSA Commissioner Apfel that the SSA Commissioner should acquiesce to

Christensen when the ‘‘Ford’’ Notices are constructed by citing to the duly promulgated regulations in order that six million aged, blind, and disabled legally defenseless citizens will understand the Notices that result in the reduction and denial of

benefits upon which their very lives depend. SSA General Counsel Fried’s answer

to the Chairman’s Christensen inquiry could be an excellent bright line standard for

the new President’s new SSA Commissioner to evaluate prior to the SSA Commissioner’s confirmation hearing.

[Attachments are being retained in the Committee files.]

f

SOUTH BROOKLYN LEGAL SERVICES

NEW YORK, NY 11201

October 6, 2000

Congressman E. Clay Shaw, Jr.

Chairman, Subcommittee on Social Security

Committee of Ways and Means

A.L. Singleton, Chief of Staff

Subcommittee on Social Security

Committee of Ways and Means

U.S. House of Representatives

1102 Long worth House Office Building

5Washington, D.C. 20515

Re: Social Security Notices

Dear Congressman E. Clay Shaw, Jr., and Mr. A.L. Singleton,

In response to your September 19, 2000 notice soliciting comments, I write to complain about a notice used by Social Security’s administrative appellate board, the

Appeals Council. I am a legal services attorney who represents indigent persons

seeking Supplemental Security Income (‘‘SSI’’) and Social Security Disability (‘‘SSD’’)

benefits. These comments are submitted on behalf of these clients. Included as part

of these clients are Mitzie Girvan and Rosa Calderon, both of whom could not understand the Appeals Council’s notice and therefore missed their statutory deadlines

with which to file their appeals in Federal court.

The notice in question is used to deny a request for review of an unfavorable Administrative Law Judge decision, and typically bears the heading ‘‘ACTION OF APPEALS COUNCIL ON REQUEST FOR REVIEW.’’ (The text of the notice is typed

at pages 7–8 of these comments, while an original copy is attached as exhibit A).

The notice is impossible to understand unless you have 15 and a half years of education (the equivalent of three and one half years of college.) In fact, according to

a common yardstick used by courts and writers to assess the readability of a document, a typical applicant for Supplemental Security Income (‘‘SSI’’) or Social Security Disability (‘‘SSD’’) benefits is better able to understand Lincoln’s ‘‘Gettysburg

Address’’ or the 1040 EZ tax instruction form than the contents of this notice. The

notice is sent annually to about 75,000 persons 1 who have had crucial Social Security and SSI benefits denied, terminated or reduced. Congress requires that Social

Security notices be written in ‘‘simple and clear language.’’ 42 U.S.C. §§ 405(s);

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2Mosley was a class action challenging the language in the Appeals Council notice in question.

It was dismissed as moot after the defendant waived the 60 day time limit for the named plaintiff to seek judicial review. 3To obtain a measure of the readability of the Appeals Council notice, I typed the text of the

notice into my computer and ran the Grammatik program on my WordPerfect 7.0 program. The

Grammatik’s analysis of the Appeals Council notice placed it at the 15.41 grade level on the

Flesch-Kincaid index for readability. Courts have used the Flesch-Kincaid index to assess the

readability of notices. Pereira v. Shalala, 841 F. Supp. 323 (C.D. Cal. 1993). 4The Grammatik’s program on readability places Lincoln’s ‘‘Gettysburg Address’’ at the 12.9

grade level and the 1040 EZ instructions at the 10.5 grade level. 5See definition of Flesch-Kincaid Grade Level, in ‘‘help’’ box of Grammatik. Corel (WordPerfect) Corporation 1996. See also David v. Heckler, 591 F. Supp. at 1037 (documents at 12–

14th grade level ‘‘defy understanding by the general populace’’); Pereira v. Shalala, 841 F. Supp.

at 327 (documents at 13–15th grade level ‘‘likely to confuse and deceive areasonable claimant’’). 6See September 12, 1995 notice (form SSA–L444) which scored 9.5 on the Flesch-Kincaid

Grade Level. It is appended in full at the end of these comments (pgs 8–9) and attached as exhibit B. 7 Calderon v. Apfel, Eastern District of New York (CV–99–5157), The Commissioner later

waived its jurisdictional defense for reasons other than it’s defective notice.

1383(o). While Social Security is well aware that the notice is statutorily defective,

See e.g. Mosley v. Apfel, 98–CV–6652 (E.D.N.Y),2 it has not re-written the notice.

Accordingly, I ask that this sub-committee require Social Security to change its Appeals Council notice.

The Appeals Council notice at issue is not written in simple or clear language as

statutorily required. Rather it is laced with legalese, long sentences, and difficult

words. For example, when describing a persons’s right to file an appeal, the notice

does not use simple language such as ‘‘if you want to file an appeal’’ or ‘‘if you think

this decision is wrong’’. Rather, the notice states:

if you desire court review of the Administrative Judge’s Decision you may

commence a civil action by filing a complaint in the United States District

Court for the judicial district in which you reside within sixty (60) days

from the date of the receipt of this letter....

(Emphasis supplied on difficult or poor word choice.)

Nor does the Appeals Council notice have any useful headings as in the Commissioner’s other notices, such as ‘‘Your Right to Appeal’’ or ‘‘If You Disagree with the

Decision.’’ Nor does it give the address of the Federal court where the appeal could

be filed, or the address of a local Social Security office (as required by 42 U.S.C.

§§ 405(s); 1383(o)) where one could obtain instructions regarding how and where to

file an appeal in Federal court.

Further, an analysis of the word choice used in the appended Appeals Council notice indicates that one needs 15.41 years of education (the equivalent of three and

a half years of college) to understand itsmeaning.3 This means that the Appeals

Council notice is harder to understand than either Lincoln’s ‘‘Gettysburg Address’’

or the instructions to a 1040 EZ tax form.4

Documents written for a general audience should be written at a six to eighth

grade level.5 Indeed, a typical SSA notice containing the appeal rights of a person

denied SSI at the initial level is written at the nine and one half grade level.6 Clearly, Social Security knows how to make a notice readable when it wants to.

The consequences of not using simple language and not providing the address of

the court house where the appeal could be filed, or a social security office where

additional information could be obtainedabout how to file a Federal court appeal,

are serious. First, if you do not file your appeal, your case is finished and, generally,

cannot be reopened. Here, the appended Appeals Council notice does not state the

consequences of its decision or of not filing an appeal in Federal court. Rather it

vaguely states in rather difficult prose that ‘‘your request [for review of the Administrative Law Judge’s decision] is denied and the Administrative Law Judge’s decision stands as the final decision of the Commissioner of SocialSecurity in your case.’’

Second, if you do not file your Federal court appeal on time, the Commissioner

will move to dismiss it (and generally will win, thereby precluding any further appeal). This is true even if you filed the appeal pro se, have a marginal education,

and state you did not understand the notice. Indeed, this happened to two of my

clients, Ms. Calderon and Ms. Girvan. Ms. Calderon, a woman with a seventh grade

education, missed her deadline to file her Federal court appeal by a few weeks.7 The

pro se clerk suggested that she explain why she was late. With the aid of her daughter, she wrote that she ‘‘was unable to comprehend the notice given to me,’’ and still

Social Security sought to dismiss her complaint as untimely. Similarly, Ms. Girvan,

who reads and writes only marginally well, filed her appeal 19 days late because

the Appeals Council notice ‘‘didn’t state where to go. I never know [sic] where to

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8Girvan v. Apfel, Eastern District of New York (CV–99–5649). 9 Her case is presently prending at the Court of Appeals, Second Circuit, Girvan v. Apfel, 00–

6242. 10The notice also deprives city and State welfare agencies of ‘‘interim assistance’’ payments

that might be obtained if the applicant appealed to Federal court and ultimately prevailed.

go or who to ask.’’ 8 The Federal court judge nevertheless dismissed Ms. Girvan’s

complaint.9

Finally, the incomprehensibleness of the Appeals Council’s notice robs low income

persons of crucial benefits that often are obtained by appealing to Federal court.10

The Federal reporters are filled with cases in which Social Security’s decision denying benefits are overturned. Indeed, a review of this office’s docket for 1999 and

2000 indicates that of the 13 Federal court appeals we obtained from litigants who

appeared pro se before administrative law judges, three were reversed for payment

of benefits by Federal judges while eight were remanded for de novo hearings.

In conclusion, Social Security must change its Appeals Council notice in order to

comply with its statutory obligations that it be written in ‘‘simple and clear language.’’ 42 U.S.C. §§ 405(s); 1383(o). Its failure to do so results in tens of thousands

of persons failing to pursue crucial benefits to which they often are entitled. Changing the language would not be hard. As a starter, I would change the fifth paragraph from:

[i]f you desire a court review of the Administrative Law Judge’s decision,

you may commence a civil action by filing a complaint in the United States

District Court for the judicial district in which you reside within sixty (60)

days from the date of the receipt of this letter. . .

to

If you think this decision is wrong, you may file an appeal at the Federal

court house located at [insert address of Federal court house]. You must go

there and file the appeal soon. If you do not go in the next 60 days your

case will be over and you will not be allowed to appeal any further. If you

have questions about this letter, you can ask for help at your local social

security office. Your local Social Security office is located at [insert address

and phone number].

Thank you for considering these comments. Please feel free to contact me if further information is needed.

Sincerely,

JOHNSON M. TYLER, ESQ.

SSI Unit Director

cc: Kenneth Apfel, Commissioner, Social Security Administration Arthur Fried,

Chief Counsel, Social Security Administration

Refer to: TAHB5 O

Social Security Administration

f

FFICE OF HEARINGS AND APPEALS

SS# ###–##–### FALLS CHURCH, VA 22041–3255

June 22, 1999

ACTION OF APPEALS COUNCIL ON REQUEST FOR REVIEW

Ms. Mitzi Girvan

416 Rockaway Parkway,

Apt. 17B

Brooklyn, NY 11212

Dear Ms. Girvan,

The Appeals Council has considered the request for review of the Administrative

Law Judge’s decision issued on September 22, 1997.

Social Security Administration regulations provide that the Appeals Council will

grant a request for review where: (1) there appears to be an abuse of discretion by

the Administrative Law Judge; (2) there is an error of law; (3) the Administrative

Law Judge’s action, findings, or conclusions are not supported by substantial evidence; or (4) there is a broad policy or procedural issue which may affect the general

public interest. The regulations also provide that where new and material evidence

is submitted with the request for review, the entire record will be evaluated and

65

review will be granted where the Appeals Council finds that the Administrative Law

Judge’s actions, findings, or conclusion is contrary to the weight of the evidence currently of record (20 CFR 416.1470).

The Appeals Council has concluded that there is no basis under the above regulations for granting your request for review. Accordingly, your request is denied and

the Administrative Law Judge’s decision stands as the final decision of the Commissioner of Social Security in your case. In reaching this conclusion, the Appeals Council has considered the applicable statutes, regulations, and rulings in effect as of the

date of this action.

If you desire a court review of the Administrative Law Judge’s decision, you may

commence a civil action by filing a complaint in the United States District Court

for the judicial district in which you reside within sixty (60) days from the date of

the receipt of this letter. It will be presumed that this letter is received within five

(5) days after the date shown above unless a reasonable showing to the contrary

is made. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of this

notice. The right to court review is provided for in section 1631(c)(3) of the Social

Security Act (42 U.S.C. 1383(c)(3)).

If you cannot file your complaint within 60 days, you may ask the Appeals Council to extend the time in which you may begin a civil action. However, the Council

will only extend the time if you provide a good reason for not meeting the deadline.

Your reason(s) must be set forth clearly in your request.

If a civil action is commenced, the Commissioner must be served by sending a

copy of the summons and complaint by registered or certified mail to the General

Counsel, Social Security Administration, Room 611, Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235. (See rules 4(c) and (i) of the Federal Rules

of Civil Procedure). In addition, you must serve the United States Attorney for the

district in which you file your complaint and the Attorney General of the United

States, as provided in the FederalRules of Civil Procedure.

Sincerely yours,

SUSAN C. MCNABB

Appeals Officer

Supplemental Security Income Notice

DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION.

Social Security Number: JOHN DOE

xxx–xx–xxxx BROOKLYN, NY 11231

Sept. 12 1995

We have determined that you cannot get supplemental security income payments

based on the claim that you filed. The attached page explains why we decided that

you are not disabled or blind. However, you may appeal this determination if you

still think you are disabled or blind.

The determination on your claim was made by an agency of the State. It was not

made by your own doctor or by other people or agencies writing reports about you.

However, any evidence they gave us was used in making this determination. Doctors and other people in this State agency who are trained in disability evaluation

reviewed the evidence and made the determination based on Social Security law and

regulations. The law is explained on the second page of this letter.

YOUR RIGHT TO APPEAL

If you think we are wrong, you can ask that the determination be looked at by

a different person. This is called a reconsideration. IF YOU WANT A RECONSIDERATION, YOU MUST ASK FOR IT WITHIN 60 DAYS FROM THE DATE

YOU RECEIVE THIS NOTICE. IF YOU WAIT MORE THAN 60 DAYS, YOU

MUST GIVE US A GOOD REASON FOR THE DELAY. Your request must be

made in writing through any Social Security office. Be sure to tell us your name,

Social Security number and why you think we are wrong. If you cannot write to us,

call a Social Security office or come in and someone will help you. You can give us

more facts to add to your file. However, if you do not have the evidence yet, you

should not wait for it before asking for a reconsideration. You may send the evidence in later. We will then decide your case again. You will not meet with the person who will decide your case. Please read the enclosed leaflet for a full explanation

of your right to appeal.

66

There are groups that can help with your appeal. Some of these groups may be

able to give you the name of a lawyer who will help you for free. Contact any Social

Security office if you want the names of these groups.

New Application

You have the right to file a new application any time, but filing a new application

is not the same as appealing this decision. If you disagree with this decision and

file a new application instead of appealing you might lose some benefits, or not qualify for any benefits. So, if you disagree with this decision you should file an appeal

within 60 days.

This determination refers only to your claim for supplemental security income

payments. You will be notified separately if you also filed a claim for Social Security

benefits.

If you have any questions, call, write, or visit, any Social Security office. Most

questions can be handled by telephone or mail. If you visit a Social Security office,

please take this notice with you.

DISABILITY AND BLINDNESS REQUIREMENTS

To get Supplemental Security Income payments:

You must be unable to work due to a medical condition which has lasted or will

last for at least 12 months in a row. The condition bust be severe enough to keep

you from working not only at your usual job, but in any other substantial gainful

work. We look at your age, education, training and work experience when we decide

whether you can work. Children under age 18 must be found disabled based only

on a severe physical or mental condition.

OR

Your eyesight must be no better than 20/200 in the better eye with the use of

a correcting lens or your visual fields must be restricted to 20 degrees or less.

OTHER IMPORTANT INFORMATION

Definitions of disability are not the same in all government and private disability

programs. Government agencies must follow the laws that apply to their own disability programs. A finding by a private organization or other government agency

that a person is disabled does not necessarily mean that the person meets the disability requirements of the Social Security Act.

[Additional attachments are being retained in the Committee files.]

f

FORM SSA L444

LAW OFFICES OF VOLLMER & TANCK

UNIONDALE, NY 11553

October 9, 2000

The Honorable E. Clay Shaw

Chairman, Subcommittee on Social Security

Committee on Ways and Means

U.S. House of Representatives

1102 Longworth House Office Building

5Washington, D.C. 20515

Dear Congressman Shaw:

Thank you for the opportunity to submit this written comment for the hearing

record on the topic of the quality and effectiveness of Social Security notices. In your

opening statement, you noted that Social Security Administration (‘‘SSA’’) notices

‘‘are confusing, illogical [and] contradictory,’’ and referred to ‘‘a recent court case

[ruling] that certain [Social Security] letters are. . . ‘constitutionally defective’ because they violate the principles of due process.’’ I am one of the attorneys of record

in that court case.

In Ford v Apfel, 87 F.Supp.2d 163 (E.D.N.Y. 1999), Robert Ford, a disabled recipient of Supplemental Security Income (‘‘SSI’’), challenged the constitutional adequacy

of financial eligibility and benefit notices sent by SSA to 6.5 million elderly, blind

and/or disabled SSI claimants nationwide. Mr. Ford did not challenge the readability of the SSI notices (that is, the level of comprehension of the language used),

67

but rather the substantive content and accuracy of those notices (that is, whether

the notices and SSI benefit payment amounts were based on complete information

and were correctly calculated).

I submit this letter to request that the text of the Ford decision be included in

its entirety in the record of this hearing. I also write to provide your Subcommittee

with historical information obtained through discovery and at trial about SSA’s noncompliance with SSI notice improvement recommendations made in the 1992 and

1994 Reports of the Office of the Inspector General of the United States Department

of Health and Human Services (‘‘OIG’’) and the United States General Accounting

Office (‘‘GAO’’).

During her testimony on September 26, 2000, Barbara D. Bovbjerg, an Associate

Director of the GAO, summarized the key findings of a newly released GAO report

which updated your Subcommittee on the extent to which SSA adopted and/or implemented the notice improvements that OIG and GAO recommended more than 8

years ago.

Regrettably, Ms. Bovbjerg testified that ‘‘SSA has not made comprehensive improvements to [SSI award notices or SSI benefit adjustment notices] and has only

recently begun developing action plans for improving them.’’ She reported that SSI

award and benefit adjustment notices still do not adequately explain the basis for

the decision, the relationship between program rules and benefit amounts, or a decision’s effect on the claimant’s SSI payment precisely the same deficiencies identified

by IOG in 1992 and by GAO in 1994.

When GAO inquired why SSA had not undertaken comprehensive corrective action over the last 8 years, Ms. Bovbjerg, citing Ford in a footnote, reported to the

Subcommittee that

. . .SSA officials told [GAO] that they postponed plans to improve SSI

award and benefit adjustment letters pending the outcome of a recently decided court case [finding] that SSA’s letters denied [SSI] recipients due

process because the letters did not adequately explain the basis for SSA’s

decisions.

If this recitation of SSA’s position is accurate, then SSA, having failed to revise

its SSI notices as pledged, now seeks to revise history instead. Contrary to SSA’s

portrayal, the pendency of this litigation did not postpone SSA’s plans to improve

its SSI notices consonant with GAO and OIG recommendations because no such

plans existed. Nor did SSA formulate such plans when plaintiffs repeatedly offered

to settle the litigation if SSA stipulated to implement those recommendations.

From October, 1995 through December, 1998, United States Magistrate Steven M.

Gold presided over multiple settlement conferences in a concerted effort to avoid

trial and expedite the notice modifications that were eventually won by plaintiffs

after trial. I personally attended every settlement conference on behalf of plaintiffs.

Throughout these negotiations, plaintiffs offered to settle the case if SSA agreed to

implement the GAO and OIG recommendations.

Specifically, plaintiffs demanded that SSA include a budget worksheet with SSI

notices which summarized how the benefit amount was calculated. Plaintiffs also

sought limited textual revisions to the SSI notices to enable SSI claimants to ascertain how their benefit amount was determined, why their SSI applications were denied, what legal authority supported the intended action, and how they could access

and review their case files for further information.

SSA made only two counterproposals. In March, 1997, SSA offered to include generic notice language inviting SSI claimants to ‘‘contact [SSA]. . .if you have any

questions about how [SSA] made these decisions [or] to review [SSA] records with

you.’’ This fell far short of the GAO and OIG recommendations and was rejected by

plaintiffs.

In February, 1997, SSA agreed to include boilerplate notice language which recited that the SSI claimant had the right to review and obtain free copies of his/

her SSA records, but rejected every other notice modification because ‘‘SSA is virtually unable to produce routine notices with the amount and type of information

which plaintiff seeks.’’ Again, this fell far short of GAO and OIG recommendations

and was rejected by plaintiffs.

SSA never engaged in serious settlement discussions to implement the GAO and

OIG recommendations. Had they done so, the matter could have been resolved at

any point in time from the 1994 filing of this litigation through the entry of final

judgment after trial in January, 2000.

By Judgment and Order dated January 13, 2000, the Honorable Chief Judge

Charles P. Sifton directed SSA to

. . .expeditiously prepare and implement a plan. . .that modifies [SSA’s]

automated SSI financial eligibility notices so as to provide information reVerDate 20-JUL-2000 13:31 Nov 14, 2000 Jkt 060010 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 K:\HEARINGS\67603.TXT WAYS1 PsN: WAYS1
68

1See ‘‘Office of Inspector General’s Clarity of Supplemental Security Income Notices, September 1992,’’ page 11. 2See ‘‘Office of the Inspector General’s Examples of revised Supplemental Security Income Notices, September, 1992,’’ page A–4.

3Social Security Administration: Many Letters Difficult to Understand (GAO/T–HEHS–94–

126, March 22, 1994).

quired in order to understand the reasons for the award, modification, termination or denial of SSI benefits in such detail as is necessary to permit

a reasonable person to understand the basis for the agency’s action. . .

The Court directed SSA to implement an array of notice modifications so SSI

claimants could obtain ‘‘information and explanation’’ about their living arrangement category (a key factor in computing the actual monthly SSI benefit payment),

permissible resource levels, the right to review case files and the legal authority for

the intended action. Reflecting the import of the OIG and GAO reports that were

introduced at trial, Chief Judge Sifton also ordered SSA to include ‘‘benefit computations in worksheetform.’’

The Court retained jurisdiction for the purpose of enforcing compliance, and directed SSA to submit an implementation plan with its time line for the completion

of the notice modifications within 120 days and to update the Court on progress

every successive 120 days until implementation was complete.

In her testimony, Ms. Bovbjerg stated that ‘‘SSA plans to add the [budget] worksheet to the SSI [notices] by July 2002,’’ but ‘‘SSA officials estimated that it could

take 10 years to implement the full range of planned improvements.’’ If SSA is permitted to proceed at its present pace, it will take longer for SSA to implement SSI

notice improvements than it took NASA to land men on the moon.

The addition of another decade to SSA’s timeline hardly constitutes ‘‘expeditious’’

implementation, and is especially troubling given SSA’s historical propensity to

pledge one thing and do another.

In September, 1992, OIG recommended that SSA

. . .include a worksheet with all award and postentitlement [SSI] notices.

This worksheet should itemize the gross payment, all deductions, the net

payment amount, and the payment date.1

In her written response to OIG’s recommendations, Gwendolyn King, then-Commissioner of SSA, assured OIG that SSA would ‘‘take the suggestions into consideration. . .when we revise our notices [and] determine whether certain of the suggestions are technically feasible.’’ 2

Despite the former Commissioner’s pledge to assess ‘‘technical feasibility,’’ plaintiffs established at trial that the worksheet recommendation was never brought to

the attention of Charles Wood, SSA’s Associate Commissioner of the Office of Systems Design and Development, George Schmittle, SSA’s computer expert in charge

of SSI notices, or Lorna Leigh, defendant’s computer specialist in charge of SSI computational software. Ford, 87 F.Supp.2d at 171–172.

In 1994, Joseph F. Delfico, then-Director of the GAO, testified before this

very Subcommittee that

. . .GAO selected and read over 500 [notices] to get a sense of how easy

or difficult they were to understand. GAO staff with an accounting background and years of Social Security program knowledge had difficulty determining or verifying specific points contained in the [notices].3

In its findings, GAO reported that

. . .the purpose of [the notices is] not being clearly stated, no information

[is provided] on dollar amounts used by SSA to adjust payments,. . .and

the reader must] perform complex analyses to reconstruct adjustments to

benefits.

At trial, Nancy Lloyd, SSA’s program analyst in charge of operational aspects of

the SSI program, testified that SSA decided to reject GAO’s recommended inclusion

of a budget worksheet with SSI notices because ‘‘it was found to be too costly and

too burdensome on [SSA].’’ Donna Goon, a member of SSA’s notice clearance and

review staff, testified that SSA considered GAO’s conclusions, but took no action to

redress the problems identified by GAO. Instead, SSA made a policy decision to suspend improvements to SSI notices while SSA devoted its computer resources to

other matters. Ford, 87F.Supp.2d at 171–172.

Although SSA now claims that implementation of the requisite notice improvements will require another decade, Charles Wood, SSA’s Associate Commissioner of

the Office of Systems Design and Development, and Lorna Leigh, defendant’s computer specialist in charge of SSI computational software, both testified at trial the

69

4See Falling Through the Net, a Report of the National Telecommunications and Information

Administration of the United States Department of Commerce dated July 8, 1999, which is

available via the internet at http.ntia.doc.gov/ntiahome/fttn99/contents.html. 5 Id. at page 15, ChartI–21. 6See 1999 SSI Annual Statistical Report of the Social Security Administration, page 11. 7 Id. at page 11, 32. 8 Id. at page 36.

GAO’s proposed budget worksheet would could be ‘‘designed and debugged’’ within

six months. Commissioner Wood also testified that implementation of all forms of

plaintiffs’ relief (notice textual changes and budget worksheet) would take just two

years under current staffing levels that assign just 13 computer programmers to format and produce all SSI notices. Ford, 87 F.Supp.2d at 163, 183. With the addition

of additional staff, the requisite notice improvements could doubtless be completed

in less than 2 years.

Despite the urgings of the OIG, GAO and a Federal court, SSA continues to balk

at implementation of the requisite SSI notice improvements. Consider, for example,

SSA’s response to the inclusion of appropriate legal citation in the text of its SSI

notices.

Among his fact findings, Chief Judge Charles P. Sifton noted in Ford that

SSI notices

. . .fail to identify the provision of Federal law, Federal regulation or [SSA

policy material] that has been applied to make determinations to grant or

deny, change or terminate benefits. Without reference to such authorities

(and most often without other legal assistance), plaintiffs are deprived of

any meaningful way of correcting legal error by consulting such legal texts

as may be available in public libraries, regional SSA offices or elsewhere.

Ford, 87 F.Supp.2d at 180–181.

In its current implementation plan, SSA intends to ‘‘provide information regarding legal authorities via the Internet’’ in lieu of inclusion of specific citation within

the body of the SSI notices themselves. Instead, SSA intends to develop notice language ‘‘referring the SSI individual to the website.’’

According to the National Telecommunications and Information Administration of

the United States Department of Commerce, there is a growing ‘‘digital divide’’ that

deprives low income households of internet access.4 According to that agency, only

6.1 percent of households with annual income equivalent to SSI income levels had

internet access.5 Our nation’s SSI population surely fall on the wrong end of this

digital divide.

In December, 1999, SSA provided SSI benefits to 6.5 million claimants nationwide.6 One in three is over age 65, and one in six is over age 75 7. One in every

three suffer suffers from mental retardation orsome other mental disorder.8 While

disability can also be a barrier to understanding written notices, Internet access

also requires not only reading and comprehension skills, but a set of ‘‘computer literacy’’ skills. Poverty, marginal education, blindness, mental impairments and advanced age surely impede Internet access for this vulnerable, low-income population.

It is difficult to envision a classification of persons less suited to rely on the Internet

than SSI claimants.

Although the Court in Ford retained jurisdiction to oversee the implementation

of SSA’s notice improvements, courts are generally reluctant to micromanage the internal operations of a government agency. That supervisory function is reserved to

the executive and legislative branches of government.

In your opening statement, you expressed extreme disappointment that SSA had

made little or no progress in improving its notices despite the agency’s repeated

pledges to make improvements. You correctly noted that SSA simply must accelerate corrective actions ‘‘before millions of baby boomers reach their peak disability

years.’’ I urge the Subcommittee to use its influence to encourage SSA to implement

GAO’s recommendations with all deliberate speed.

In a slightly different context, former President Ronald Reagan once noted that

it is important to ‘‘trust, but verify.’’ I respectfully submit that it is time for your

Subcommittee to schedule annual hearings on this very important issue in order to

verify that SSA does its utmost to implement these long-overdue notice improvements on behalf of our nation’s most vulnerable constituency.

Respectfully submitted,

PETER VOLLMER, ESQ.

Æ