SSA inspector general reverses course on fining employees

The Social Security Administration's inspector general last week backed away from imposing fines of up to $3.8 million on four employees in the agency's Office of Disability Adjudication and Review, agreeing not to pursue any criminal, civil or administrative action against them.

A settlement agreement signed last Monday by the IG's chief counsel, Kathy Buller, and lawyers for the employees established that the IG office will not pursue any actions against the employees based on allegations that they inappropriately cited the same expert testimony in numerous disability benefits cases.

The National Treasury Employees Union, which represented three of the employees and worked closely with the fourth, has maintained that they were following the instructions of the administrative law judge deciding the cases. The union hailed the agreement as a victory.

"The OIG's sudden reversal of course and its extraordinary agreement to forgo taking any action at all against these employees shows that there was nothing to the OIG's charges from the beginning," said NTEU President Colleen Kelley.

The settlement stipulates that the IG office withdraw letters sent to the employees informing them of potential fines of $5,000 per case, translating to total charges of $100,000 each for two attorneys, $215,000 for a third employee and $3.5 million to a supervisor who oversaw more than 700 cases.

The IG office agreed not to "request or encourage" any entity to pursue criminal, civil, administrative or personnel actions against the employees. References to the incident will be removed from their personnel files.

The settlement requires the four employees to cooperate in future IG interviews on the matter, but they may be accompanied by a representative such as a lawyer or union official.

In a statement, the IG office linked the issue of recycling expert testimony to "the unconscionable delays often encountered by applicants for disability benefits" and problems with the hearings and appeals process. "The unauthorized reproduction of evidence from one disability case and its improper use in more than 700 unrelated cases as a 'quick fix' means of accelerating the process in one hearing office suggests that legitimate efforts to eliminate or reduce backlogs have not been successful," the statement said.

"The employees in question will be interviewed at length by OIG personnel as a first step in a new OIG audit initiative focused on the Office of Disability Adjudication and Review and its policies and practices," the IG stated.

The union has maintained that because the employees were performing their job duties in preparing decision language in the manner instructed by the judge, they would be protected from legal action. In a press briefing, union officials said the practice of reusing general testimony in multiple cases has been used for years, and the employees were not informed that it might be suspect.

The judge whose cases are in question has since died.

Jonathan Lasher, deputy chief counsel for the IG's office, said reusing expert testimony was not a documented practice in disability decisions. Asked whether the judge had, indeed, directed that the testimony be included in the cases, he said, "We have no basis to believe that's true." But pressed on whether his office had investigated the claim, he declined to answer. "We're in too deep as far as detail goes, there," he said.

Lasher also said investigators have "no reason to think" the practice is being used at other disability review offices, though he would not discuss whether that has been investigated. He said there were no plans to issue a formal statement recommending against the practice. "I think we've been pretty clear on that," he said.