Some of us have been around long enough to remember when the Social Security Administration’s (SSA’s) reconsideration step applied in New York in disability claims. We not so fondly recall it as the “rubber stamp” step. Since 1999, NYS has been one of ten states in SSA’s Disability Redesign Prototype, which tested the elimination of the reconsideration stage in disability claims. Not anymore! As of January 1, 2019, reconsideration is back. SSA announced on December 12, 2018, that the prototype test would be phased out in New York and several other prototype states in January. This means that claimants who apply for Social Security Disability Insurance Benefits or Supplemental Security Income, or both, in New York, and who receive an initial denial determination on or after January 1, 2019, will have to request reconsideration as the first step of the appeals process. Only if residents are denied at the reconsideration step, may they appeal further by requesting a hearing before an ALJ.
According to SSA, reinstatement of the reconsideration step will ensure that SSA has a national, unified disability process that affords all claimants the same due process rights no matter where they live. It claims some disability claimants will receive favorable determinations more quickly. And it asserts SSA will be able to reduce the average wait times for a hearing, thereby achieving greater balance to the overall disability appeals process. Huh? Yes, maybe some claimants will receive a favorable determination more quickly, but in those states where reconsideration has been in place, the average reversal rate at the reconsideration stage was a whopping 12.6% in Fiscal Year 2018. And the average processing time for reconsideration decisions in 2017 was 101 days. And will the reduction in wait time at OHA simply be the result of more claimants dropping out of the process in frustration?
Those of us who objected to the return of reconsideration pointed out that despite an almost twenty year experiment, SSA has little data to demonstrate the value of the additional step. To the contrary, pilot programs have shown that devoting more time and effort to the initial stage of the process could improve SSA’s ability to arrive more quickly at statutorily compliant decisions. But SSA has no plans of which we are aware to require better development of the record, additional contact with claimants, or better training for disability examiners to make reconsideration meaningful.
Instead, as far as we know, a different analyst at the Disability Determination Service (DDS) – or Division of Disability Determinations (DDD) in New York – will conduct a paper review of the initial decision. Unlike the reconsideration step that has continued to be part of the Continuing Disability Review (CDR) process in New York, there will be no opportunity for a face-to-face review or hearing before a Disability Hearing Office (DHU). Nor will there be formal or informal conferences that are available for non-medical reconsiderations, such as overpayment claims. See Form SSA-561.
Reconsideration can be requested on-line, or by completing Form SSA-561. Then, of course, the claimant will have to complete another Disability Report, Form SSA-3441, and more authorizations. Yet another opportunity to increase the size of the exhibit file!
Will there be an opportunity to advocate for claimants at the reconsideration level? Nationwide, approximately 52% of claimants were represented at reconsideration in FY 2017. But there may be some barriers to meaningful representation. Advocates who have represented claimants at the DHO level in CDRs or Age-18 review are aware of some of the hurdles. DDD cannot accept or enter a representative’s Form 1696 directly. It must be submitted through the local District or Field Office, thus slowing down the process. And representatives must then request a CD of the Exhibit File from DDD, another slow-down. The Disability Determination Services do not have access to ERE, and are apparently a long way from being connected. We hope to learn more from DDD about best practices to obtain CDs and interact with the analysts, and will keep you informed.