NASHVILLE, TN:  Legislation protecting the integrity of elections in Tennessee overcame its first hurdle towards passage this week with approval by the Senate State and Local Government Committee.   The bill requires voters to provide photo identification to guard against fraud and assure only U.S. citizens vote.

“Unfortunately, we know that voter fraud exists and that there are people who try to be dishonest in an election,” said Senator Bill Ketron (R-Murfreesboro), Chairman of the Committee and sponsor of the bill.  “This bill aims to curtail such abuse by making sure those persons voting are who they say they are.”
The bill, SB 150, provides for various forms of photo identification to be used including a driver’s license, military identification, a valid passport, government employee identification cards, and any federal and state-issued identification cards that contain photographs of the voter.  The legislation does not apply to those in nursing homes.  It also allows for those who are indigent to sign an affidavit swearing their status as an eligible voter.  In addition, the bill provides for a “provisional ballot” which would only be counted if the election counting board is able to verify current and valid identification of the voter within three days.

Last April a U.S. Supreme Court decision validated the right of states to require voters to produce photo identification.  According to the National Conference of State Legislatures, of the 24 states that have a voter-ID requirement, seven states specify a photograph be shown to prove identification, including neighboring states Georgia, Florida, and Louisiana.  In no state is a voter who cannot produce identification turned away from the polls.  All states have some recourse for voters without identification to cast a vote or provide for a provisional ballot.

The voter integrity legislation has been approved for the past several years in Tennessee’s State Senate but has failed in the House of Representatives along party lines with Democrats opposing the bill.

“This legislation makes it clear to everyone that Tennessee has the right to make sure that those voting are legitimately casting their votes, and are U.S. citizens,” added Senator Ketron.  “I am hopeful that this measure, which has been upheld by the courts, will be approved by the full General Assembly this year.”

Also on the agenda…

In other action in the State and Local Government Committee this week, legislation was approved to update the political composition of the State Election Commission which has been dominated by Democrats for generations.  State law currently requires that the political composition of the five-member State Election Commission be three members of the majority party and two members of the minority party.  In 2008, the majority party changed prompting the need to replace one Democrat on the state board with a Republican.  The terms of office for State Election Commission board members, however, are on a four-year cycle, which is in conflict with state law given the shift in power.

“The Republican Party, now holds the largest number of seats in the General Assembly,” said Senate Majority Leader Mark Norris (R-Collierville), sponsor of the bill.  “In order to reflect the new majority and comply with state law, we propose to temporarily add two new Republicans to the mix.  The Democrats are in mid-term and won’t go gracefully.”

Under the bill, SB 547, the new members would rotate off in two years when their terms of office expire.  The make-up of the board would consequently return to a five-member status after that time.

Tennessee law also requires county election commissions to reflect the change in majority status by giving Republicans three members of the five-member boards statewide.  Those terms of office will be up next month.

Finally, the Senate State and Local Government Committee approved legislation sponsored by Senator Doug Overbey (R-Maryville) requiring that a convicted felon must pay all fines and court costs imposed before being eligible to have their voting rights restored.  Currently, a person convicted of a felony must be pardoned, discharged from custody or supervision, and have paid all restitution to the victim of the offense to have their rights of suffrage restored.  This legislation, SB 440, would add the payment of fines incurred as a result of the felony as a condition for restoring the right to vote.

Legislation approved by Judiciary Committee strengthens rights of property owners

The Senate Judiciary Committee has approved legislation sponsored by Senator Randy McNally (R-Oak Ridge) to strengthen the rights of property owners in cases of eminent domain.  The potential for abuse of government power in cases of eminent domain has been a growing concern for citizens nationwide in recent years, particularly after the U.S. Supreme Court ruling, Kelo v. New London, which opened the floodgates.  The 5-4 high court decision condoned the rights of local governments to take private property for public use in the name of economic development.

After the Kelo case, many state legislatures moved into action in 2006 to improve their eminent domain laws, including Tennessee.  The legislation, SB 521 and SB 522, approved by the Judiciary Committee would further strengthen that law to provide additional checks and balances to protect citizens from abuse.

Tennessee’s 2006 post-Kelo law reiterated that a “taking” must be for “legitimate public use.”  It prohibited land used predominantly for agriculture production from being considered a blighted area.  It increased notification requirements for eminent domain action from 5 to 30 days, allowing land owners to receive a fair hearing in court with time to prepare their case and provided for attorney’s fees if the property owner is successful.  It also required government entities seeking eminent domain action to deposit moving and other expenses into an account for the owner of land seized through eminent domain.   The bill approved by the Committee this week would further strengthen that law by providing that approval must be given for eminent domain “takings” by the locally-elected governing body.  It also gives property owners the right of first refusal to buy back property from an eminent domain taking if it is not used for the purpose for which it was taken within ten years.

“The protection of homes and small businesses and other private property against unreasonable government seizure is a fundamental principle of our form of government,” said Senator McNally.  “These two additional protections will provide the checks and balances needed to make help safeguard against abuse.”

Senate Education Committee hears update on efforts to improve students’ health

The Senate Education Committee heard testimony this week regarding the state’s Coordinated School Health Program’s efforts to improve the health of students in Tennessee.  Coordinated School Health Director Connie Givens told the committee that the program is a national model that is making a significant difference to help Tennessee children make healthy choices and improve student performance.

Tennessee ranks among the highest states in the nation for the incidence of heart disease, stroke and diabetes.  Forty-one percent of students in the state’s schools are overweight or obese.  These adolescents have a 70 percent chance of becoming overweight adults who are subject to these life-threatening health conditions.

Beginning as a pilot project, the program was implemented statewide in 2006.    That legislation was sponsored by Senator Bill Ketron (R-Murfreesboro), General Welfare, Health and Human Services Chairman Rusty Crowe (R-Johnnson City), Senator Steve Southerland (R-Morristown) and Speaker Pro Tempore Jamie Woodson (R-Knoxville), among others.  It provided for a Physical Education Specialist and a Coordinator of School Health position within the Tennessee Department of Education and called for 90 minutes of physical activity for K-12 students.

There are eight components to the Coordinated School Health Initiative including health education, physical activity, nutrition services, school health services, counseling, a healthy and safe school environment, community involvement and health promotion for school staff.  The program also partners with other health care agencies to provide a vast array of health screening services to accomplish those goals.  Givens said the results of the program have included reduced absenteeism, improved academic performance and higher graduation rates.

Research shows that poor health habits in children are associated with poorer academic achievement.  It also shows schools that offer intense physical activity programs have shown positive effects on student academic achievement.

The Committee, in partnership with the American Heart Association, also honored three Tennessee schools for excellence in implementing the Coordinated School Health Law.  Lincoln County High School received “highest honors” for outstanding achievement by a Tennessee high school, E.O. Coffman Middle School in Lawrence County received the award for excellence in a junior high school, while North Stewart Elementary School in Stewart County topped the list for elementary schools.

Turning the tide on Tennessee’s disturbing health status to help future generations make healthy choices is important not only to improve the health of individuals but also for the economic health of the state due to rising health care costs.

Finance Official updates Senate Finance Committee on federal stimulus money

State Finance Commissioner Dave Goetz appeared before the Senate Finance Committee this week where he continued to urge caution regarding the stimulus money coming to the state through the federal U.S. Economic Recovery Act.  The state has revised its statistics on how much will be coming into Tennessee to $4.5 billion over a two-year period.  Earlier predictions were in the $3.8 billion range.

Goetz said he is cautioning leaders at all levels of government in Tennessee to remind them it is a temporary assistance plan and that if recurring expenses are involved to expect the money to disappear at the end of the two-year period.  He also said the federal government is issuing guidance on how the money must be spent daily and that there is nothing to prohibit the federal government them from changing its mind at any time regarding those rules.

Senate Majority Leader Mark Norris questioned Goetz and Department of Transportation Commissioner Gerald Nicely about the need to implement an orderly process to the lawful expenditures of stimulus funds.

“The State Constitution mandates that all expenditures are subject to appropriation by the Legislature,” said Leader Norris.  “The governor has given us his word that he will comply.”

Issues in Brief

Hunting and fishing rights / SJR 30 — The Senate Judiciary Committee approved a resolution this week to amend Tennessee’s Constitution to protect the rights of citizens to hunt and fish.  The measure will be voted on in the same manner as the “Victim’s Rights Amendment” in 1998, the “State Lottery Scholarship Amendment” of 2002, or the recent amendment to give property tax relief to the elderly.  The measure was approved in the 105th General Assembly but must pass by a two-thirds majority in the current legislature before citizens can expect to see the resolution on the ballot in November 2010.

Abortion / SJR 127 – Legislation was filed on Monday by Senator Diane Black (R-Gallatin) to give Tennesseans the opportunity to restore their voice in determining what state law should be regarding common sense protections for abortions.  SJR 127 passed the State Senate overwhelmingly last year but failed along party lines with Democrats voting against the measure in a House Subcommittee.  The resolution addresses a State Supreme Court decision in 2000 that struck down provisions in Tennessee law allowing women to receive “informed consent” information about the surgery and to wait 48 hours before they receive an abortion, making Tennessee more liberal than the courts required in Roe v. Wade.  The earliest this amendment, if approved, could go to voters is 2014.

Coal Fly Ash – Legislation was presented by Senator Tim Burchett (R-Knoxville) to the Senate Environment Committee this week to ban the future storage of coal fly ash in lagoons.  The bill, SB 1559, would prohibit the State Conservation and Environment Department from issuing a permit for disposal of fly ash in holding ponds.  It also prohibits issuance of a permit in landfills unless they contain a liner for protection of groundwater and are capped properly.  Debate on the bill will continue in the committee next week.

Vacancies / County Commissioners — The full Senate passed legislation this week to correct a problem arising from an interpretation of a 2008 law that revised procedures for filling vacancies by a county commission.  That law required a county commissioner to resign from the county commission if they accept an appointment made by that governing body.  Some attorneys have interpreted this to include any appointments made by the county commission, including internal appointment to boards and committees, such as budget and finance committees, beer boards, ethics committees etc.  The legislation, sponsored by Senator Doug Overbey (R-Maryville) clarifies that it was not the intent of the 2008 law to prevent a county commissioner from serving on any board or commission if he or she could lawfully serve on that board prior to the act.

President Obama said he did not want family planning to be used a “political wedge” and refused to continue that “stale and fruitless debate.”

“In the coming weeks, my administration will initiate a fresh conversation on family planning, working to find areas of common ground to best meet the needs of women and families at home and around the world.” — President Barack Obama to CNN

January 21, the day after President Obama was sworn into office, was the 36th anniversary of Roe v. Wade, the U. S. Supreme Court ruling that legalized abortion by stating the right to abortion was guaranteed within the 14th Amendment’s  right to privacy.  Even as inauguration crowds dispersed,tens of thousands of members of the right to life movement converged on Washington for the annual Right to Life march, which ended on the steps of the U.S. Supreme Court.

While Republican opposition to this decision was quickly voiced in tandem with charges that Obama’s decision was a flip-flop on his earlier statements to work to reduce the number of abortions, it is in fact in keeping with that pledge. Finding ways to fund family planning efforts and create a safety net for women of childbearing age is the responsible approach to 21st century health care.

Population Action International said the move will “save women’s lives worldwide” and that the issue is basic health care and well-being for all women and children. Planned Parenthood, which decried the Bush administration action in cutting of funding, took a similar stance, applauding the move as positive direction in women’s health care.

President Obama, in making his decision, said the move to provide funding to family planning clinics would help achieve the goal of reducing unintended pregnancies, “promote safe motherhood,” reduce maternal and infant mortality,  and improve  economic opportunities for women.

“By signaling his intention to restore U.S. funding for UNFPA, the UN Population Fund, President Barack Obama is signaling his re-engagement with the international community on the critical challenge of improving reproductive health around the worl.”  — UN Foundation President Timothy Wirth said.

Dallas, Texas:

Royall worked with the city of Freeport, Texas, to try to condemn a generations-old shrimp business owned by the Gore family to make way for a luxury marina.  The project became the subject of the book, Bulldozed: ‘Kelo,’ Eminent Domain, and the American Lust for Land, authored by veteran legal journalist Carla Main. 

Bulldozed tells the story of Freeport’s plan to take the Gore’s waterfront property for Royall’s luxury marina development project.  Only hours after the U.S. Supreme Court’s infamous Kelo v. City of New London eminent domain abuse decision, the city instructed its attorneys to redouble their efforts to seize the Gore family business.  Bulldozed unravels why, after years of litigation, the threat of condemnation continues to hang over the Gores.  The book was reviewed in many newspapers, including The Wall Street Journal, was nominated for the Texas Historical Commission’s annual T.R. Fehrenbach Book Award and it won a highly competitive independent press award for political science writing.

After journalist Main wrote her book exposing the Freeport land grab, Royall sued her as well as her publisher, Encounter Books, for defamation.  He even sued nationally renowned Law Professor Richard Epstein who wrote a blurb for the book’s dust jacket.  When someone reviewed the book, he sued him.  When two newspapers published that review, he sued them.

On Wednesday, December 10, 2008, the Institute for Justice Texas Chapter (IJ-TX) filed a notice of appearance with the Dallas County District Court in order to vindicate the right of author Main, her publisher and Professor Epstein to freely debate eminent domain abuse.

“Rather than try to defend his indefensible effort to have the government take someone’s land for his private development project, H. Walker Royall sues and sues and sues and sues,” said Matt Miller, executive director of the Institute for Justice Texas Chapter, which is defending the book’s author, the publisher and law professor Epstein.

Earlier, when the Gores—the original victims of Royall’s eminent domain abuse effort in Freeport—complained against Royall’s actions, he sued them for defamation.  That lawsuit is ongoing.

Main is a veteran journalist who was an associate editor of The National Law Journal, where she edited the opinion page and wrote a column on law and society.  She wrote for The Wall Street Journal, Policy Review, National Review, The American Lawyer and The New York Sun, among other publications.  Before becoming a journalist, Main practiced as an attorney in New York City for ten years.

Author Carla T. Main

“The book was a labor of love,” said Main.  “I researched it meticulously and gave Mr. Royall multiple opportunities to be interviewed.  His primary complaint about the book seems to be that I described him as participating in an economic development taking, which he did.”

Richard Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School, where he has taught since 1972.  He also teaches at the New York University School of Law.  Epstein has published 14 books.  His Torts and Cases and Materials on Torts textbooks are widely used in law schools across the country.

In 1985, Epstein published Takings: Private Property and Eminent Domain, a book about the Fifth Amendment and the limits of the government’s power to use eminent domain to take private property.  The book has been cited four times by the U.S. Supreme Court.  Takings is an essential book in the debate about eminent domain and property rights in America.

Epstein was sued by Royall over a small blurb on the back cover of Bulldozed.  Epstein said, “It is a sad day in the life of America when a powerful individual like H. Walker Royall, who has complete access to the media, thinks that the appropriate response to criticism is to remain silent and then to bring a defamation action against those who comment on his deeds.”  Writing an admiring blurb is not something Epstein ever expected would get him sued.  “There are few times in my professional career when I’ve been flabbergasted and this is definitely one of them,” said Epstein, who has been a law professor for more than 40 years.  Epstein’s blurb reads, in its entirety:

“Like a Greek tragedy unfolding, Carla Main’s book chronicles the eminent domain struggles in Freeport, Texas, which pitted the Gore family, with its longtime shrimp business, against the machinations of an unholy alliance between city politicians and avaricious developers. If you have ever shared the Supreme Court’s unquestioned deference to the public planning process that shaped its ill-fated Kelo decision, you’ll surely change your mind as you follow this sordid saga to its bitter end. You’ll never look at eminent domain in the same way again.”

Encounter Books is a non-profit publisher that promotes democratic culture with a catalogue of award-winning and important books.  Encounter Books has more than 100 titles on topics including religion, military affairs, Greek civilization and current events.  Roger Kimball, president and publisher of Encounter Books, also publishes The New Criterion magazine.  Kimball said, “There is the First Amendment, which I think is very much at stake in this case.  There is also the broader issue of public education.”

“Eminent domain for private gain is the subject of nationwide public debate,” said senior attorney Dana Berliner, who was co-counsel in the Kelo case and who will help direct this litigation.  “If Walker Royall didn’t want anyone to talk about him or his development deals, he shouldn’t have made a deal to develop a private marina using public money and someone else’s land.  The Constitution protects people who talk about important issues like eminent domain abuse by governments and private developers.  If developers don’t want people writing about them, then they shouldn’t be involved with government’s abuse of eminent domain.”

The freedom to learn about eminent domain abuse is also at stake because Royall is asking the court to stop the presses on Bulldozed, preventing anyone else from reading the book.  “Mr. Royall should tell the public why he doesn’t like Carla Main’s book, rather than try to censor it,” said Wesley Hottot, an IJ-TX staff attorney.

About the Author: Founded in 1991, the Virginia-based Institute for Justice fought the landmark legal battle to protect property rights in the U.S. Supreme Court, arguing Kelo v. City of New London in 2005.  The Institute has successfully defended eminent domain abuse activists sued for speaking out in St. Louis, Mo., Clarksville, Tenn., and Renton, Wash.

AU Executive Director Barry Lynn

Americans United for Separation of Church and State on Wednesday urged the Texas State Board of Education to stick to sound science and reject creationist concepts when revising its science standards. The state school board is currently examining the science curriculum, which is reviewed and updated every 10 years. The Seattle-based Discovery Institute and other Religious Right forces are seeking to include loopholes that undermine instruction about evolution and open the door to creationist ideas.

Scientists, teachers, mainstream religious leaders and civil liberties activists want to improve the Texas standards to ensure that the public school classroom does not become a vehicle for religious indoctrination.

“Public schools should educate, not indoctrinate. The Religious Right is exploiting Texas public schools to push a narrow viewpoint and in the process is doing a great disservice to its students, not to mention undermining the mandates of our Constitution.” ~~   Rev. Barry W. Lynn, Americans United executive director.

The battle in Texas is focused on Religious Right-backed language currently in the standards that requires schools to teach the “strengths and weaknesses” of evolution. That wording, experts say, is an invitation to introduce creationist concepts based on fundamentalist religion, not science.

“Let’s just hope members of the Texas school board recognize the ‘strengths and weaknesses’ language for what it is,” Lynn concluded. “If they don’t, they could be inviting public school districts to face some costly litigation.”

In its letter to the board, Americans United makes it clear that litigation may result if religious beliefs are introduced into public school science classrooms.

The board’s decision, which is expected to be made in March, could influence science instruction across the country. Texas is the second largest purchaser of textbooks, after California. To meet Texas standards, textbook producers may include creationist concepts in books that would circulate nationally.

A hearing is scheduled for today in Austin for individuals and groups to testify on the curriculum.

Religious Right groups have already succeeded in pushing through their agenda in Louisiana, which now allows science teachers to use “supplemental materials” to teach the “strengths and weaknesses” of evolution. AU is closely monitoring whether religious beliefs are being introduced unconstitutionally as science by teachers in Louisiana.

The federal courts have repeatedly struck down other tactics used by the Religious Right to push religion in public science classes. In 1987, the U.S. Supreme Court in Edwards v. Aguillard invalidated a Louisiana statute requiring science educators to “balance” teaching evolution concepts with “creation science” concepts.

In 2005, a federal district court said in Kitzmiller v. Dover Area School District that Pennsylvania public schools cannot teach “intelligent design,” a creationist concept that claims the universe and living things were created by an “intelligent cause.” The court ruled “intelligent design” unconstitutional for use in public schools because it is unscientific and religious.

About the Author: Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.

The often irreverent and always funny George Carlin is the latest name on the list. Carlin died Sunday of heart failure at age 71. From the vantage point of youth, 71 was “old,” distant, beyond comprehension. From the vantage point closer to 60, his 71 years now seems pretty young. I remember Carlin first as “the hippy dippy weatherman” — a tamer version of Carlin in those early days.

In the very early 60s, Carlin’s comedy was tame. Then he fell under the spell of controversial Lenny Bruce, whose ribald and often vulgar comedy inspired and led Carlin in a new groundbreaking direction. Combined with the social unrest of the Vietnam era, Carlin quickly broke new ground using comedy to make his message clear. part of that message was simply to make us think.

Love him or hate him, Carlin was unique, and definitely a product of the sixties, taking his irreverence across the boundaries of propriety to a new comedic landscape with the famous “Seven Words You Can Never Say On Television.” That routine led to his arrest and a landmark indecency case before the U.S. Supreme Court. He also set the stage for new generations of stand-up comedians.

Through comedy, Carlin challenged us to confront issues and ideas, using comedy as a tool to challenge the our beliefs and social structures.

Some his memorable lines and plays on words:

• Have you ever noticed that anybody driving slower than you is an idiot, and anyone going faster than you is a maniac?
• Do people in Australia call the rest of the world “up over”?
• Can a stupid person be a smart-ass?
• Does killing time damage eternity?
• Why is it that night falls but day breaks?
• Why is lemon juice made with artificial flavor, and dishwashing liquid made with real lemons?
• Are part-time band leaders semi-conductors?
• Can you buy an entire chess set in a pawn-shop?
• Daylight savings time. Why are they saving it and where do they keep it?
• Have you ever imagined a world with no hypothetical situations?
• One tequila, two tequila, three tequila, floor.

Carlin was a regular performer on the theater circuit in my hometown, where I watched him as as a member of the audience, and later as a critic. A Carlin show was a guaranteed pleaser.

Carlin was to receive the 2008 Mark Twain Prize for American Humor at the Kennedy Center for the Performing Arts in November.

He will be missed.

For decades, Congress, the United States Supreme Court, and the Social Security Administration have recognized that the informality of SSA’s process is a critical aspect of the program. Creating unreasonable procedural barriers to eligibility is inconsistent with Congress’ intent to keep the process informal and non-adversarial, and with the intent of the program itself, which is to correctly determine eligibility for claimants, awarding benefits if a person meets the statutory requirements.

On October 29, 2007, the Social Security Administration (SSA) published proposed regulations that make significant changes to the SSA appeals process, including hearings before administrative law judges (ALJs). Comments must be submitted on or before December 28, 2007 to the Commissioner of Social Security, P.O. Box 17703, Baltimore MD 21203.

While there are some notable potential improvements to the process, for example, a 75-day hearing notice and retaining the claimant’s right to administrative review of an unfavorable ALJ decision, we also have serious concerns, from a claimant’s perspective, that many changes and new requirements are unfair and limit the rights of people with disabilities.

While it is appropriate to deny a claim because the evidence establishes that the individual does not meet the statutory definition of disability, it is wrong to deny benefits to an otherwise eligible, disabled individual who falls between procedural “cracks” or who is unable to submit relevant evidence because of procedural limitations.

For people with disabilities, it is important that SSA improve its process for making disability determinations. We strongly support efforts to reduce unnecessary delays for claimants and to make the process more efficient, so long as the steps proposed do not affect the fairness of the process to determine a claimant’s entitlement to benefits. Any changes to the process must be measured against the extent to which they ensure fairness and protect the rights of people with disabilities.

The most significant proposed change would close the record to new evidence in two ways by:

• Restricting the submission of evidence at the ALJ and Review Board (the replacement for the Appeals Council) regardless of its relevance to proving a claimant’s disability; and
• Limiting the scope of review and ability to submit new evidence after a federal court or Review Board remands a case because of legal errors. To exacerbate the adverse effect of these changes, claimants would be advised to file new applications, potentially with detrimental consequences, and restricted in their ability to reopen prior claims.

Is there reason to believe that the real purpose of the changes is to reduce allowances? The proposed rule assumes that fewer claims would be allowed, with a more than $1.5 billion reduction in benefit payments over the next ten years. From our perspective as advocates for claimants with disabilities, this is not acceptable.

1. The record essentially closes five days before the hearing with limited exceptions. All new evidence would need to be filed five business days before the ALJ hearing date. Evidence submitted after that date is considered “late.” The ALJ would have the discretion to ignore any evidence submitted within five days of the hearing or later, regardless of its relevance or importance, or that it was beyond the claimant’s control to obtain the evidence. Why is restricting the submission of evidence unfair to people with disabilities?

• We believe that these proposed restrictions violate a claimant’s right under the Social Security Act (the Act). The Act guarantees the right to a hearing with a decision based on evidence “adduced at the hearing.” The proposed changes eliminate the ALJ’s duty to fully and fairly develop the record. This duty is especially heightened for unrepresented claimants.
• The proposed changes will force individuals to file court cases just to have SSA consider evidence that was improperly rejected earlier in the process. The NPRM changes are more restrictive than the Act, which allows a federal court to send a case back to SSA where there was a good reason why new and material evidence was not submitted earlier.
• The proposed changes are inconsistent with the realities of claimants obtaining representation. Many individuals seek and obtain representation shortly before or even after the ALJ hearing date, since the hearing is the first in-person contact with a disability adjudicator. Under the NPRM, an ALJ would be able to exclude relevant evidence in this situation.
• The proposed changes are inconsistent with the realities of obtaining medical evidence. We strongly support early submission of evidence but there are many legitimate reasons why it is not provided earlier. The 75-day hearing notice will be a great help but there is no requirement that medical providers turn over records during that time period. Also, there are cost or access restrictions, such as HIPAA requirements, that prevent the ability to obtain evidence in a timely way.
• The proposed changes are inconsistent with the realities of claimants’ medical conditions. Medical conditions are not static. They may worsen over time and/or diagnoses may change. Some conditions, e.g., multiple sclerosis, autoimmune disorders, or certain mental impairments, may take longer to diagnose definitively. The severity of the impairment may change, e.g., a seemingly minor cardiac impairment results in a heart attack. It may take more time to fully understand and document the combined effects of multiple impairments. Some claimants may be unable to accurately describe their impairments or limitations either because they are in denial, lack judgment, do not understand their disability, or the impairment by definition makes this a difficult task. The purpose of the disability determination process is to determine whether the claimant is eligible for benefits to which he or she is statutorily entitled. Excluding evidence that is relevant to the determination is inconsistent with the purpose of the process.

2. Individuals who appeal erroneous ALJ decisions will be limited in new evidence they can submit in a “remand” hearing.

• We support the proposed change that restores the claimant’s right to seek administrative review of an unfavorable ALJ decision. But that right is severely curtailed by new and significant limits on review by the Review Board (RB) or the federal courts. If the RB or court finds that the ALJ decision was wrong and remands the case for a new ALJ hearing, the NPRM limits the remand hearing to consideration of the claimant’s condition on or before the date of the original ALJ decision. This means that even if the original impairment(s) worsened during the appeal, which could be months or years, the individual could not submit new evidence of this change.
• Claimants with disabilities will be disadvantaged by this change. The NPRM states that this change “will not unduly disadvantage claimants” but our position is that it most certainly will. SSA says that a claimant can file a new application if his or her condition worsens during the time between the ALJ’s first decision and the remand proceedings. However, a new application, in many cases, is a poor and even disadvantageous substitute for the appeal. For all claimants, benefits could be lost from the effective date of the first application. Title II claimants would be particularly harmed because they would need to complete a five-month waiting period for cash benefits and Medicare benefits could be delayed because of the 24-month Medicare waiting period and many Title II workers could be permanently foreclosed from eligibility for benefits if their insured status had expired.

• The proposed change can be interpreted as establishing time-limited benefits. The language of the proposed regulation is ambiguous and can be interpreted to mean that, in a remand proceeding, the individual could only be found eligible for a time-limited period ending no later than the date of the first ALJ decision. Under this interpretation, because they would not be found to be disabled on an ongoing basis, claimants with disabilities would: (1) not be protected by use of the medical improvement standard; (2) would lose their automatic access to Medicaid and Medicare; (3) would lose access to most SSI and Title II work incentives. This interpretation must be rejected by SSA because of the serious repercussions.

• The proposed change is inconsistent with the Act and limits the ability of the federal courts to remedy legal errors. Currently, if a case is appealed to court and is remanded back to SSA, the court reverses and vacates the first ALJ decision. Since there is no longer a final decision by SSA, the claim remains “open” on remand. The proposed change would limit the ALJ’s ability on remand to consider new and material evidence, even if the court orders SSA to consider such new evidence. SSA cannot limit the court’s authority on appeal to remedy errors in the first ALJ decision.

3. Forcing Individuals with Disabilities to File Multiple Applications Is Neither Fair Nor Efficient. By closing the record to new evidence and limiting the period that can be considered to determine eligibility, claimants would unnecessarily be forced to file multiple applications. A claimant will be required to file a new application for consideration of any change in disability after the date of the original ALJ decision, even if the change is related to the impairments considered in the prior application. This is an onerous burden to place on claimants. Why would the agency force an individual to file additional applications when the claim for disability could be resolved by making the decision based on a complete record?

• We are concerned that the impetus for these changes is a reduction in allowances since the NPRM makes clear that closing the record is intended to result in a $1.5 billion reduction in benefit payments over the next ten years. Does this mean that SSA assumes that claimants will be confused and discouraged and will not file new applications? Do the “savings” include those claimants who file new applications and lose benefits from the effective date of the first application or are permanently foreclosed from eligibility? If so, this is a particularly inappropriate and harmful change.

• Claimants may jeopardize eligibility by reapplying. Requiring claimants to file new applications simply to submit new evidence relevant to their impairments may severely jeopardize, if not foreclose, eligibility for benefits. Benefits could be lost from the effective date of the first application, which in Title II cases can be as much as 12 months before the application date. Workers who are eligible for Title II disability benefits are particularly harmed. Cash benefits could be delayed because of the Title II 5-month waiting period and Medicare benefits could be delayed because of the 24-month Medicare waiting period.
  

• Eligibility may be foreclosed forever because of the Title II recency of work test. Under this test, to be eligible for disability insurance benefits, the worker must have worked 20 of the last 40 quarters to be insured. This means that onset of disability must occur during the insured status period, which usually ends 5 years (20 quarters) after work stops. If the worker’s insured status expired before the first ALJ’s decision, the worker may never be eligible when a new application is filed. The following example describes the dilemma faced by individuals under the proposed change.

Example: The claimant files for Title II benefits in January 2007, based on a heart condition. The claimant’s insured status expires December 31, 2007. The first ALJ decision is issued in January 2008, finding that the claimant was not disabled before her insured status expired. One month later, the claimant has a serious heart attack. After recuperating for several months, she files a new application. The new application will be denied because there is a final decision – the ALJ decision – that she was not “disabled” prior to December 31, 2007.

• Under current procedures, if the claimant appeals to federal court and asks for a remand based on new and material evidence that was not available earlier, the court has the authority to remand the case to have SSA consider the new evidence. On remand, the ALJ is able to find that the later evidence shows that her original impairment was more serious and that she in fact was disabled before her insured status expired. Under the NPRM, the ALJ would be precluded from considering the new evidence and, if a new application is filed, it likely would be denied

• Urging claimants to reapply is inconsistent with Congressional intent. Previously, SSA notices misled claimants regarding the consequences of reapplying instead of appealing. A 1990 law requires SSA to include clear and specific language in notices describing the adverse consequences of reapplying. More than 15 years after Congress acted on this problem, it is troubling that the concept of reapplication is still imbedded in SSA’s thinking and used as a justification for preventing the consideration of all evidence relevant to the claim.

• Requiring new applications is administratively inefficient and will increase SSA’s workload. The proposed change is administratively inefficient because it would require SSA to handle even more applications at a time when it otherwise expects an increase in filings and would cause further congestion in the front end of the process. Many individuals, who are unable to avail themselves of the online application process, will require the personal involvement of SSA claims representatives. This is particularly problematic at a time when the agency is faced with its lowest staffing level in more than 30 years.

4. Individuals would be limited in their ability to reopen prior applications. Exacerbating the problems with restrictions on submitting evidence and limits on the period during which eligibility can be determined, the NPRM severely limits the claimant’s right to reopen prior applications. Reopening a prior application can be very important for people with disabilities who clearly meet the disability standard but were unable to adequately articulate their claim in the first application, were unable to obtain critical evidence, or have an impairment that is difficult to diagnose, such as multiple sclerosis or certain mental impairments.

Reopening situations currently do not arise frequently, but when they do, they usually have compelling fact patterns involving claimants who did not understand the importance of appealing an unfavorable decision, often claimants with mental impairments who repeatedly file new applications instead of appealing. When they finally obtain representation on a subsequent claim, new and material evidence is submitted that may establish disability as of the earlier application. Reopening is discretionary and cannot be required, but it can be used to right obvious wrongs.

This proposed change eliminates ALJ discretion to reopen an earlier decision where new and material evidence shows that the claimant was disabled at an earlier time. Under the NPRM, to assure that claimants cannot “circumvent” the strict new limits for submitting evidence after the record is closed, the NPRM eliminates “new and material evidence” as a basis for reopening a decision by the ALJ or the Review Board. This is unfair for claimants in a number of situations, such as: claimants who are not able to get a proper diagnosis for a considerable period of time (multiple sclerosis, for example); claimants who were unrepresented and whose cases were poorly developed; claimants with mental impairments that prevent or inhibit their ability to cooperate with development of claims; cases where physicians refuse to provide medical records until unpaid bills are paid; and bankrupt hospitals who are unable to provide records. The proposal also could result in a total loss of eligibility if Title II disability insured status previously expired.

5. Other Proposed Changes Make the Process Too Formal and Unfair to Individuals. There are many other proposed changes, including new time limits, which make the process overly complicated and legalistic. These changes may well become procedural traps for claimants, especially those who are unrepresented.

New time limits. Additional new time limits, beyond normal appeal deadlines, would be established with no “good cause” extension including: (1) Objecting to the time or place of the hearing (30 days after receiving the hearing notice); (2) Objecting to the issues in the hearing notice (5 business days before the hearing); (3) Requesting subpoenas for missing records (20 days before the hearing); and (4) Filing brief to Review Board (with appeal or within 10 days of filing).

1. Possible limits on issues before the ALJ. There is a new requirement that the appeal to the ALJ must include a statement that lists the “medically determinable impairments” preventing work. Does this limit the impairments considered by the ALJ or will some ALJs use this requirement to limit impairments that can be considered? Claimants should not be limited only to those impairments listed on their appeal request. The claimant also must object to issues in the hearing notice within 5 business days of the hearing, with no extension. The current process is flexible and allows raising objections “at the earliest possible opportunity.” What happens if the claimant obtains legal representation within 5 days of the hearing? Is the representative precluded from raising issues? This is inconsistent with due process.
2. Rescheduling hearings for “good cause.” The NPRM deletes the criteria in current regulations for circumstances when the ALJ will change the time and/or place of the hearing and when the ALJ has the discretion to change the time and/or place. The current “good cause” factors for have been severely curtailed, placing nearly total discretion in the ALJ. Without these criteria, will more hearings be dismissed inappropriately because the claimant is unable to attend?
3. Inability to object to telephone hearings. The claimant will be informed in the notice if the hearing is to be held in person, by video teleconference or by telephone. For the first time, the ALJ is authorized to direct the claimant to appear by telephone “under certain extraordinary circumstances.” There is no provision in the proposed rule to object to a hearing scheduled to be held by telephone. An ALJ could determine that “extraordinary circumstances” exist and hold a hearing by telephone without allowing the claimant an opportunity to object. Claimants should be given the right to object.
4. Dismissal of appeal for failure to appear at a prehearing or posthearing conference. If neither the claimant nor the representative appears at a prehearing or posthearing conference, the ALJ would have the discretion to dismiss the appeal. Like current process, this is an extreme penalty that should be reserved only if both the claimant and representative miss the actual ALJ hearing without good cause. Dismissal on this basis should not be left to the ALJ’s discretion.
5. The contents of the appeal to the Review Board (RB). The appeal to the RB must be in writing and the NPRM lists what “should” be included: a written statement that identifies the ALJ’s errors, explains why it should be reversed or modified, and cites applicable law and specific facts in the record. These requirements are very formal and legalistic, and assume that the claimant is represented by an experienced legal representative. We are concerned that the failure to raise issues in the appeal statement will be deemed a waiver of the right to have them considered by the RB or that the RB will give less consideration to appeals that do not include a statement meeting these requirements.
6. Payment required for a copy of the record. Claimants would be penalized for appealing to the RB by a new requirement to pay for requested copies of the record or the hearing recording, unless there is a “good reason” not to pay. This change may violate the Privacy Act which grants an individual the right of access to his or her own records. The current procedure should be retained which provides that the Appeals Council will not charge for a duplicate hearing recording or a copy of the claims file.
7. Submitting evidence to the Review Board. In addition to the strict limits for submitting new evidence to the RB, the NPRM requires that the claimant “must submit” a statement with the additional evidence explaining why he or she believes the strict criteria are met. Will this turn into a trap for unrepresented claimants? Will the RB refuse to consider the additional evidence if such a statement is not submitted? In addition, while the claimant must meet strict limits for submitting new evidence under the NPRM, the RB is free to obtain new evidence either by remanding the case to the ALJ or by obtaining it on its own if it can be done “more quickly” and would not “adversely affect” the claimant’s rights. There is no further explanation and there is no requirement that the RB proffer the new evidence to the claimant before issuing a decision.

About the Author: Nancy Schorr is the Executive Director of NOSSCR, the National Organization of Social Security Claimants Representation, an organization committed to providing the highest quality of representation and advocacy on behalf of people seeking Social Security Disability and Supplemental Security Income.