It's debatable if the fiduciary standard is 'higher' than suitability. But the better question might be, who's holding the bar?
SUMMARY: The Administrative Conference of the United States adopted four recommendations at its Fifty-eighth Plenary Session. The appended recommendations address ways to improve the adjudication of Social Security disability benefits, best practices for use of benefit-cost analysis in rulemaking by independent regulatory agencies, transparency in agencies' scientific decisionmaking, and best practices for agencies with respect to the administrative record in informal rulemaking.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2013-1, Amber Williams; for Recommendations 2013-2 and 2013-3, Reeve Bull; for Recommendation 2013-4, Stephanie Tatham. For all four recommendations the address and phone number are: Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036; Telephone 202-480-2080.
SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations for improvements to agencies, the President, Congress, and the Judicial Conference of the United States (5 U.S.C. 594(1)). For further information about the Conference and its activities, see http://www.acus.gov.
At its Fifty-eighth Plenary Session, held June 13-14, 2013, the Assembly of the Conference adopted four recommendations. Recommendation 2013-1, "Improving Consistency in Social Security Disability Adjudications," identifies ways to improve the adjudication of Social Security disability benefits claims before administrative law judges and the Appeals Council, suggests changes to the evaluation of opinion evidence from medical professionals, and encourages the agency to enhance data capture and reporting.
Recommendation 2013-2, "Benefit-Cost Analysis at Independent Regulatory Agencies," highlights a series of best practices directed at independent regulatory agencies in the preparation of benefit-cost analyses that accompany proposed and final rules.
Recommendation 2013-3, "Science in the Administrative Process," promotes transparency in agencies' scientific decision-making, including: articulation of questions to be informed by science information; attribution for agency personnel who contributed to scientific analyses; public access to underlying data and literature; and conflict of interest disclosures for privately funded research used by the agencies in licensing, rulemaking, or other administrative processes.
Recommendation 2013-4, "The Administrative Record in Informal Rulemaking," offers best practices for agencies in the compilation, preservation, and certification of records in informal rulemaking, and supports the judicial presumption of regularity for agency administrative records except in certain limited circumstances.
The Appendix (below) sets forth the full texts of these four recommendations. The Conference will transmit them to affected agencies and to appropriate committees of the United States Congress. The recommendations are not binding, so the relevant agencies, the Congress, and the courts will make decisions on their implementation.
The Conference based these recommendations on research reports that it has posted at: http://www.acus.gov/meetings-and-events/plenary-meeting/58th-plenary-session/. A video of the Plenary Session is available at the same web address, and a transcript of the Plenary Session will be posted once it is available.
Dated: July 3, 2013.
Paul R. Verkuil,
Appendix--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Administrative Conference Recommendation 2013-1
Improving Consistency in Social Security Disability Adjudications
Adopted June 13, 2013
The Administrative Conference of the United States (Conference) has undertaken many studies over the years relating to the Social Security disability benefits system. /1/ It has issued a number of recommendations specifically directed at improving the Social Security Administration's (SSA's) initial application and appeals processes, /2/ as well as other recommendations more generally designed to improve agency adjudicatory procedures. /3/ The Conference last issued a recommendation on the Social Security disability benefits system over twenty years ago. The system has grown substantially since that time. Approximately 3.3 million disability claims are now filed annually, /4/ which represents a 57% increase since 1990. /5/ In a program of this size, adjudicating disability benefits claims in a fair, consistent, and timely manner is a monumental challenge.
FOOTNOTE 1 The Social Security Act created two programs--Social Security Disability Insurance and Supplemental Security Income--to provide monetary benefits to persons with disabilities who satisfy these programs' respective requirements. See 42 U.S.C. 401(b), 1381 (2011). END FOOTNOTE
FOOTNOTE 2 These recommendations include: Recommendation 91-3, The Social Security Representative Payee Program, 56 FR 33847 (July 24, 1991); Recommendation 90-4, Social Security Disability Program Appeals Process: Supplementary Recommendation, 55 FR 34213 (Aug. 22, 1990); Recommendation 89-10, Improved Use of Medical Personnel in Social Security Disability, 55 FR 1665 (Jan. 18, 1990 (as amended)); Recommendation 87-7, A New Role for the Social Security Appeals Council, 52 FR 49143 (Dec. 30, 1987) [hereinafter ACUS Recommendation 87-7]; and Recommendation 78-2, Procedures for Determining Social Security Disability Claims, 43 FR 27508 (June 26, 1978). END FOOTNOTE
FOOTNOTE 3 See, e.g., Recommendation 2011-4, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, 76 FR 48789 (Aug. 9, 2011); Recommendation 89-8, Agency Practices and Procedures for the Indexing and Public Availability of Adjudicatory Decisions, 54 FR 53495 (Dec. 29, 1989); Recommendation 86-7, Case Management as a Tool for Improving Agency Adjudication, 51 FR 46989 (Dec. 30, 1986); Recommendation 73-3, Quality Assurance Systems in the Adjudication of Claims of Entitlement to Benefits or Compensation, 38 FR 16840 (June 27, 1973). END FOOTNOTE
FOOTNOTE 4 Soc. Sec. Admin., Annual Performance Plan for FY 2013 and Revised Performance Plan for FY 2012, at 11 (2012). END FOOTNOTE
FOOTNOTE 5 Soc. Sec. Advisory Bd., Aspects of Disability Decision Making: Data and Materials 6 tbls. 1a & 1b (Feb. 2012) [hereinafter SSAB 2012 Report]. END FOOTNOTE
Those cases flow through a nationwide, multi-step process, by which SSA determines whether a claimant is disabled and eligible for benefits. State agencies make initial disability determinations using federal guidelines. Claimants may file (and pursue) their own claims or they may choose to enlist the assistance of a representative, who may or may not be a lawyer. /6/ If benefits are denied, claimants may request reconsideration (in most states). If benefits are denied after reconsideration, claimants may request a hearing before an Administrative Law Judge (ALJ). ALJs adjudicate nearly 800,000 cases a year. /7/ In FY 2011, about 56% of disability benefits claims were allowed at the ALJ hearing stage, /8/ though more recent figures show a decline in this rate. /9/ ALJ hearings, which may be in-person or by video teleconferencing, are conducted using a de novo standard of review, and generally follow the Administrative Procedure Act's adjudication procedures. Although ALJs preside at the hearings, decisionwriters typically write decisions for ALJs based on instructions from them. Usually, decisionwriters are not assigned to specific ALJs, but serve instead as part of a "pool" in each hearing office from which writing assignments for decisions are made.
FOOTNOTE 6 The administrative process for adjudication of Social Security disability claims is nonadversarial in nature. See, e.g., 20 CFR 404.900(b), 416.1400(b) (2012) (describing agency's administrative review process as "informal" and "nonadversary"); Mathews v. Eldridge, 424 U.S. 319, 339 (1976) ("The hearing is nonadversary and the SSA is not represented by counsel."); Richardson v. Perales, 402 U.S. 389, 403 (1971) ("We bear in mind that [SSA] operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary."). END FOOTNOTE
FOOTNOTE 7 SSAB 2012 Report, supra note 5, at 13. END FOOTNOTE
FOOTNOTE 8 Harold Krent & Scott Morris, Statistical Appendix: Analysis of Administrative Law Judge Disposition and Favorable Rates in Fiscal Years 2009 to 2011 13, 14 tbl. A-8 (2013) [hereinafter Statistical Appendix]. END FOOTNOTE
FOOTNOTE 9 Harold Krent & Scott Morris, Achieving Greater Consistency in Social Security Disability: An Empirical Study and Suggested Reforms 8 (2013) (noting a 50% allowance rate in FY 2012). END FOOTNOTE
--This is a summary of a Federal Register article originally published on the page number listed below--
Citation: "78 FR 41352"
Federal Register Page Number: "41352"