Clear That Backlog!

Beth Bates, a Jackson, TN attorney, has a nice op ed piece in the Jackson Sun dealing with the human costs of Social Security's hearing backlog. While there has been some progress on this backlog in the past year, a budget freeze could start moving things in the opposite direction.

Budget Situation Perilous

President Obama's recommended budget for fiscal year (FY) 2011, which begins on October 1, 2010, is due out on Monday, February 1. The President has stated that he intends to recommend a freeze for almost all domestic agencies. for the next three years. The Center for American Progress has posted an analysis of what this could mean, which includes this paragraph:

Based on extensive analysis, the IRS Oversight Board has concluded that for each dollar spent at the IRS, four dollars in taxes owed to the Treasury are collected. Studies by the Social Security Administration and Centers for Medicare and Medicaid Services show similar ratios between staffing resources and savings to the U.S. Treasury from identification of fraudulent claims, overpayments, and incorrect billings. These three agencies have a combined annual budget of $27 billion over the next 10 years. The federal government will spend approximately $337 billion on salaries, contracts, and other expenses if we maintain the same level of effort as we have today.

A Contrast

The Department of Veterans Affairs (VA) has its own severe backlog problem. To help deal with the onslaught of claims, VA is proposing some changes to its computer systems. The response from veterans advocacy groups:

• "This is old news"
• "Verbiage in proposal is obtuse to the max ... many in attendance did not understand the Gov.speak gobbledygook."
• "This proposal is Dead on Arrival."

I cannot help but contrast this to past introductions of somewhat similar plans at Social Security. I do not know whether this is good or bad but I have to say that Social Security advocacy groups have been much more restrained in their comments on similar proposals at Social Security even when their private thought might have been the same as what the veterans advocacy groups are saying.

Status Of Attorney Scheduling System?

There have been reports that Social Security is working on a computer system to track Social Security hearings scheduled for individual attorneys to avoid conflicts. I have never heard that Social Security considered such a system to be operational.

I now have a Social Security hearing scheduled in one city on a specific date and at a specific time. Another Social Security hearing office has scheduled a hearing for another client in a different city on the same date and at the same time without calling me as Social Security's own HALLEX manual requires. When I asked for a continuance, I was told that no continuance would be granted since their system did not show any such conflict for me.

What is going on?

A Question And An Opinion

Is it appropriate for a Commissioner of Social Security to change the agency's basic interpretation of a statute without any intervening change in the statute? I was under the impression that members of the Federalist Society such as Michael Astrue opposed reinterpreting even the Constitution which is over 200 years old. Of course, there is the recent example of Citizens United v. FEC where other members of the Federalist Society were quite happy to reinterpret the Constitution when it suited the interests of their political party.

My opinion is that if a Commissioner does not like the settled interpretation of a statute that he inherits that he should go to Congress and ask them to change the statute instead of threatening to unilaterally change that interpretation.

Commissioner Says Ohio Shoots Itself In Foot

From the Cleveland Plain Dealer:

Commissioner of Social Security Michael Astrue said Ohio is losing millions of dollars and contributing to the backlog of disability cases by furloughing state workers paid with federal funds.

Astrue, who met with The Plain Dealer editorial board Thursday, also said the furlough of workers who process disability requests will delay 14,600 claims and postpone almost $3 million in federal benefits to Ohio residents.

According to Asture, Ohio will lose $6.9 million in federal money by imposing a 20-day furlough to each of the 627 employees of the Ohio Bureau of Disability Determination over two years. The furlough began last summer.

Policy Change On Substance Abuse Coming?

From a Request for Comments to be published in the Federal Register tomorrow:

We are requesting your comments about our operating procedures for determining disability for persons whose drug addiction or alcoholism (DAA) may be a contributing factor material to our determination of disability. ...

To provide guidance on how we interpret the DAA provisions of the Act, we issued instructions to our employees in an Emergency Message on August 30, 1996. ...

We are asking for your comments on the procedures we follow when evaluating DAA. In particular, we would like your opinion about what, if any, changes you think we should make to our instructions. For example, do you have any suggestions about:

• What evidence we should consider to be medical evidence of DAA?
• How we should evaluate claims of people who have a combination of DAA and at least one other physical impairment?
• How we should evaluate the claims of people who have a combination of DAA and at least one other mental impairment?
• Whether we should include using cigarettes and other tobacco products in our instructions?
• How long a period of abstinence or nonuse we should consider to determine whether DAA is material to our determination of disability?
• Whether there is any special guidance we can provide for people with DAA who are homeless?

Social Security's position has been that if it is impossible to separate the effects of DAA from the effects of other psychiatric illness that the combined effect of both may be considered disabling. This situation is frequently present in individuals suffering from bipolar disorder, a psychiatric illness which has a high degree of association with DAA. A change in this policy would be of considerable importance.

Social Security has never previously asserted or even suggested officially that tobacco use could be considered DAA.

The talk of whether a period of abstinence should be required before a person could be found disabled is worrisome. The statute does not forbid disability payments to alcoholics and drug addicts. It merely prohibits consideration of alcoholism and drug addiction in determining disability. A person may have a raging substance abuse disorder but be found disabled due to other health problems. This has always bothered some people. They find drug abuse and alcoholism so loathsome that they believe that no one alcoholics or drug addicts should be on Social Security disability benefits even though the statute says otherwise. One interpretation of this notice is that Social Security has a desire to move towards forbidding benefits to anyone with a substance abuse problem.

Electronic Medical Records And Social Security

The Specialized Advisory and Assistance Service (SAAS) of the Social Security Administration has prepared a report on Social Security's trial use of an automated electronic records retrieval system to obtain medical records on Social Security disability claimants in Virginia. I had not previously heard of SAAS. Can anyone enlighten me on them?

The report was not released by Social Security but by MedVirginia, the Health Information Exchange, or HIE, that Social Security is working with. MedVirginia's press release has the title "Social Security Administration Study: $2 Million Return from HIE." The $2 million return that MedVirginia is talking about is not for Social Security but for Virginia hospitals which tells you where MedVirginia is coming from.

The executive summary for the report is the worst that I have ever read. It is far too long and far too wordy. My eyes glazed over as I read sentences such as, "The overarching technical success was the transmission of semantically interoperable live health information via the NHIN." Why do academics write so poorly? Is that a requirement to get a Ph.D.?

Hidden away in the report is the fact that the "mean case processing time" for the cases transmitted across the HIE was 59 days while the comparable state average was approximately 84 days. I am not sure what this number represents since the report also states that only "anecdotal evidence suggests that some disability determination decisions may have been made faster with this electronic process." Fifty-nine days as opposed to 84 days sounds like more than anecdotal evidence. Maybe the 59 days number does not mean as much as it seems to mean.

One intriguing tidbit from the report is that some of the development for the project was outsourced to Dubai creating time zone problems for all involved.

I have to wonder after reading this report what SAAS is and why was a private contractor releasing this report instead of Social Security? Also, why would the contractor be so crass as to tout the profit potential of HIE for health care providers in this sort of press release? That is serious tone deafness.

Bad News

The President has decided to seek a three year freeze on domestic discretionary spending. The freeze would allow increases in spending only to match increases in the cost of living. This freeze includes the Social Security Administration's operating budget. This is potentially devastating for Social Security. The agency was dramatically underfunded during the Bush Administration and now faces rapidly increasing workloads due to the aging of the baby boom population.

Update: I am getting messages from people telling me in effect "What's the problem? The President is exempting Social Security." Sure, he is exempting Social Security benefit payments. Unfortunately, there is no sign that the President is exempting Social Security's operating budget from this planned budget freeze. The operating budget is a separate matter from the benefit payments.

And We Thought Backlogs Were Bad At Social Security

At the Department of Veteran's Affairs Regional Office in Roanoke, VA, the stacks of backlogged case files are so big that they threaten the structural integrity of the building!

Understaffing Social Security Makes Sense If You Start With This Premise

From CNS News:

The Social Security Administration (SSA) spent $30 million in stimulus money in 2009 to hire 585 new bureaucrats who will be responsible for certifying whether people are eligible for disability so they can be paid by the taxpayers not to work.' ...

Sandra Fabry, director for the Center for Fiscal Accountability at Americans for Tax Reform, called SSA’s use of stimulus funds for ODAR a “bad deal for taxpayers on both ends.”

“You’re paying money on the front end to make these hires and are obligating taxpayers at the same time to pay millions and millions more on the recipients’ side,” she said.

Bottom line, Fabry said, the move by SSA grows the scope of government in both spending and “dependency.” ...

Fabry acknowledged the claims back-log, but questioned whether or not this is a good use of taxpayer dollars ...

Glad It Worked Out For Him

From the Independent Mail of Anderson, SC (emphasis added):

When Freddie Jordan could no longer feel his hands or his feet, which prevented him from working as a pipe fitter, he was nervous.

For 15 years, he worked with Stover Mechanical as a pipe fitter, and he’d only missed three days of work. Surely, he said, that would count for something when he discovered he could no longer work because of the neuropathy in his hands and his feet. At 57 — just five years short of retirement — he knew he was going to need to apply for disability benefits.

“I was scared,” said Jordan, a Honea Path resident. “The insurance company told me that I was going to need an attorney. And I had heard that some folks had to wait two or three years for their benefits. I didn’t want to lose my land and my truck.”

His fears were eased, he said, when he called the Social Security Administration office in Anderson.

First, they told him he didn’t need a lawyer. Save that money, they said.

“They told me to just tell the truth, and I’d be OK,” Jordan said.

His wait was three months, not three years. Now, for two months, Jordan has been receiving his benefits.

Social Security Releases Much Data

A press release from Social Security:

Michael J. Astrue, Commissioner of Social Security, today announced that the agency is making new data about beneficiaries and the agency’s disability and hearing processes available to the public. The new data supports the President’s Transparency and Open Government initiative and is available at www.data.gov.

“I applaud President Obama’s commitment to creating an unprecedented level of openness in government and the new datasets we are posting far exceed what was asked of us,” Commissioner Astrue said. “Social Security has always valued transparency and sought to give the public user-friendly information about our programs. Each year we send millions of Americans personal information about their Social Security contributions and potential benefits. Our website www.socialsecurity.gov has a wealth of information about our programs and the Social Security trust funds. I hope the new data we are making available will lead to a better understanding of our operations and the important role we play in people’s lives. I look forward to engaging Americans in the business of their government.”

Here are a few examples of the value of the Social Security datasets available today:

• Researchers can find out about the work-related experiences of our beneficiaries receiving Social Security disability benefits and give us policy guidance for our disability programs.
• The public can see information about hearings workloads and a breakdown of the types of decisions made by Administrative Law Judges.
• Researchers can study the effects of current and proposed legislative and program provisions.
• People who have requested a hearing on their disability claim can estimate the amount of time they may have to wait for the hearing to be held and for a decision.
• The public can see general information requested under the Freedom of Information Act.

“These new datasets are just the beginning of our efforts. In February we will launch our Open Government webpage that will include improved access to our data in a variety of formats. In April we will publish our Open Government plan,” said Commissioner Astrue. “Let me also reassure all Americans that while our goal is to become more open and transparent, we will continue to vigilantly protect the personal information the public entrusts to us. We will ensure that transparency does not put that information at risk.”

Here is the list of Social Security provided datasets. Here are what I find to be the more interesting of the newly released data, some of which I was unable to open due to technical problems, which I have noted below:

• Hearing Office Dispositions Per ALJ Per Day Rate Ranking Report
• Hearings Held In-Person or Via Video Conferencing Per Hearing Office
• Hearing Office Average Processing Time Ranking Report (technical problems)
• Hearing Office Workload Data (technical problems)
• State Agency Workload Data (technical problems)

Please let me know if you can open the datasets that I had trouble with.

OIG Report On Hearing Office Productivity

In response to a request from Senator Voinovich, Social Security's Office of Inspector General (OIG) has produced a report on Hearing Office Disposition Rates. Nothing surprising about the findings:

Our review identified various factors that impacted hearing office productivity. Specifically, we found ALJs had control over certain factors that affected hearing office productivity—motivation and work ethic, case review time, and hearings management. Further, we identified factors related to support staff that can also affect hearing office productivity—staff quantity, quality, and composition.

Fast Scheduling

My firm is seeing some Social Security hearings scheduled within a month after asking for one. This might be welcome news except for the fact that we have many other cases where claimants have been waiting for over a year for a hearing. These cases being scheduled rapidly are not ones which are supposed to be expedited, such as those for terminally ill claimants or "wounded warriors." We are seeing this from at least two different hearing offices. This just started this month.

Is this a local phenomenon or is something happening regionally or nationally that could explain this?

My opinion is that the only fair thing is to schedule hearings in the order in which claimants asked for them insofar as practical. What I am seeing seems inappropriate to me.

Budget Commission Coming

From the Washington Post:

Faced with growing alarm over the nation's soaring debt, the White House and congressional Democrats tentatively agreed Tuesday to create an independent budget commission and to put its recommendations for fiscal solvency to a vote in Congress by the end of this year.

Under the agreement, President Obama would issue an executive order to create an 18-member panel that would be granted broad authority to propose changes in the tax code and in the massive federal entitlement programs -- including Medicare, Medicaid and Social Security -- that threaten to drive the nation's debt to levels not seen since World War II.

South Carolina Field Office Receives Award

From the Independent Mail of Anderson, SC:

The Anderson office of the Social Security Administration pays more than $93 million in benefits to local residents every month.

The speed in which it takes applications for those benefits and turns the applications around has now garnered the office’s staff an award for being the best district office for the Social Security Administration’s Atlanta region, said Jan Hammett, one of the office’s officials. ...

The staff will receive the recognition on Thursday at 9:30 a.m. Rodney Taylor, the deputy regional commissioner for the Atlanta region, will present the award.

Libertarians And Social Security

William Eggers and John O'Leary have an interesting piece on Reason.com with the title Five Reasons Why Libertarians Shouldn't Hate Government. Here is an excerpt that should have some resonance for those who saw what happened at Social Security during the last presidential administration:

To shrink government, you need to love government. Most liberals believe deeply in government. As a result, they sit on school boards, city councils, and regional planning boards. They become expert at navigating through the bureaucracy and know which bureaucratic levers to pull to make their policy vision reality.

Many conservatives and libertarians come from the world of business. They don’t particularly like government. They view it as merely a necessary evil. As a consequence, they rarely immerse themselves in the intricacies of governing, preferring to make their case from a safe distance.

Once in power, they tend to have far more difficulty navigating the complex terrain of the public sector. The result? From Ronald Reagan’s Grace Commission to the 1995 government shutdown by a GOP Congress, most high-profile attempts to shrink government fail.

Until small-government types better master the nuts and bolts of the public sector—how to design policies that work in the real world and how to execute on large public undertakings—their initiatives to downsize government will continue to disappoint.

Florida Office Honored

From The Villages Daily Sun:

When Tom Milligan learned the Leesburg Social Security office was to be honored for excellence, he was surprised — and gratified.

“I’ve always thought we were very deserving, every year,” said Milligan, the office’s district manager. “It’s a great honor, and we’ve worked really hard.”

A brief award presentation took place Thursday afternoon at the office.

“It means a lot to us — the people in this office,” Milligan said, “and hopefully it means a lot to this area — that they get the kind of service here that they would like to have.”

The award was presented by Paul Barnes, regional commissioner for the Southeast Region of the Social Security Administration.

Getting Media Attention Helps

From KIVI-TV in Boise, Idaho:

An 18-year-old Orofino teen with a rare disease that has left him partially blind and deaf has won his year-long fight to get Social Security benefits.

Jacob Walk has type-2 neurofibromatosis, a disease that causes tumors to grow on nerves throughout his body. He says he's accepted his prognosis, and knows the disease will likely leave him completely blind and deaf in the coming years. He's had eight brain surgeries and has at least 14 tumors on his spine.

The Lewiston Tribune reports Walk first applied for Social Security benefits more than a year ago, but was denied -- twice. He took his fight to the media and to lawmakers, and last week U.S. Sen. Mike Crapo told him a Social Security administrative law judge had decided in Walk's favor.

Hearing Office Processing Time Report

From the newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR).

The Only Thing That Changed Was That His Story Ended Up On Television

From NBC New York:

Male Aquino would rather risk freezing to death in his cardboard box than move into a warm shelter filled with drug users. But after being featured in a series of NBC New York reports in recent weeks, Aquino's luck seems to have improved.

After applying unsuccessfully for disability benefits for eight years, Aquino suddenly received a Social Security check for almost $2,300 and a promise of $761 a month in the future.

He says the only thing that's changed was that his story ended up on television.

The 24 Month Medicare Gap

From the Associated Press:

Disabled by chronic back pain and unable to afford medical insurance, Lea Walker hoped President Barack Obama's health care overhaul would close a coverage gap that has trapped her and millions of other workers.

It won't.

Although disabled workers can expect improvements, the legislation moving toward final passage in Congress doesn't deliver the clean fix that advocates for people with serious medical conditions hoped for. Some of the neediest could find themselves still in limbo. ...

She started receiving monthly disability checks from Social Security, but found she would face a 24-month wait for Medicare. Insurance available through her husband's job was out of reach at $800 a month.

At any given time, an estimated 1.8 million disabled workers languish in the Medicare coverage gap, a cost saver instituted nearly 40 years ago. Many, like Walker, are uninsured. Lawmakers had hoped to eliminate the gap as part of health care overhaul, but concluded it would be too expensive. ...

"I think everyone needs to realize this is going to be a first, very major step toward health care reform and then there will be a need to come back in the next several years and make midcourse adjustments," said Sen. Jeff Bingaman, D-N.M., who pushed unsuccessfully to phase out the waiting period.

While I wish that Congress would deal fully with the problem now, this article makes the problem out to be worse than it is. Many, perhaps most, of the people in the 24 month waiting period will be eligible for Medicaid under the health care reform bills pending in Congress. Because Medicare lacks an adequate prescription drug benefit, Medicaid may be better for low income families anyway. These bills would also give Medicaid coverage to many of those who are stuck in the lengthy process of appealing Social Security disability denials.

By the way, I will make a prediction now. If some combination of the plans pending in Congress come into effect, a higher percentage of Social Security disability claims will be approved because of better documentation of illness. I think we can also hope that eventually the rate of disability in this country will decrease because of better access to medical care.

Newspaper Tries To Blame Social Security For Murder?

From the Boston Globe:

Two decades ago, Congress was abuzz over scandals involving indigent parents who fabricated behavioral problems in their children to get disability payments for mental disorders. Stunned by news of these so-called “crazy checks,’’ US lawmakers in 1996 enacted tougher standards for children to qualify for such benefits.

But in a highly unusual criminal trial set to start on Tuesday, prosecutors are expected to allege that stricter eligibility rules did not stop a financially strapped Hull couple, Carolyn and Michael Riley, from concocting an elaborate scheme involving powerful psychotropic drugs. By 2006, everyone in the family was on the federal disability rolls, except for the youngest child, 4-year-old Rebecca, whose application had been denied. As the parents were appealing that decision, Rebecca died in December 2006 of an alleged overdose of psychiatric drugs that she had been prescribed for bipolar and hyperactivity disorders.

The parents now face first-degree murder charges.

As I read this, I have to wonder whether the newspaper is accurately describing the case. First degree murder is normally something intended. Nothing about the story presented suggests that these parents were deliberately trying to kill their child. Felony murder is a death that may have been unintended but which happens during the commission of a felony. Are prosecutors saying the parents were trying to commit fraud on Social Security and their daughter died as a result of this fraud? That sounds like a stretch. How would you prove fraudulent intent by the parents? This sounds like a highly disordered family. It is not implausible to me that severe mental illness was rampant in the family. There is a significant genetic component to bipolar disorder.

I expect this newspaper is trying to make a political case using only a caricature of a criminal case. It makes me wonder about the validity of the political argument they are making.

By the way, I have a ready explanation for the increase in the number of children receiving SSI benefits on account of mental illness. Previously, it was believed that bipolar disorder was either rare or non-existent in children. Now child psychiatrists believe that bipolar disorder is not uncommon in children. This belief is bolstered by a National Institute of Mental Health study. Putting the label of such a severe disease on children leads to more of them receiving disability benefits. More children are being diagnosed with bipolar disorder not because of something to do with Social Security but because of research. If you want to blame a government agency for this, blame the National Institute of Mental Health but be prepared to argue with their rigorous scientific study.

GAO Report On ALJs

From Results-Oriented Cultures: Office of Personnel Management Should Review Administrative Law Judge Program to Improve Hiring and Performance Management, a report by the Government Accountability Office (GAO):

SSA [Social Security Administration] and HHS [Department of Health and Human Services] officials responsible for hiring new ALJs reported they were satisfied with the quality of the judges hired from OPM’s [Office of Personnel Management's] ALJ [Administrative Law Judge] register of qualified candidates in 2008. Despite their satisfaction with these ALJ candidates, agency officials raised several issues regarding ALJ hiring and offered suggestions to improve the process, including (1) opening the OPM registry to accept new candidates more frequently, (2) giving greater consideration to agency-specific knowledge and experience, and (3) providing additional agency flexibility in meeting the procedural requirements associated with selecting from the three best qualified candidates and awarding veterans’ preference. OPM officials reported they are working to address these issues and develop new approaches, where appropriate. ...

To safeguard the independence of ALJ decisionmaking, ALJ agencies are prohibited from rating or tying an ALJ’s compensation to their performance. Nevertheless, SSA and HHS officials reported using numerous other practices to manage ALJ performance. ALJ association officials were concerned some SSA performance management practices could affect ALJs’ decisional independence.

SSI Recipients Eligible For VA Benefits

From a recent report by Social Security's Office of Inspector General (OIG):

To perform our review, we identified 2,390 SSI [Supplemental Security Income] recipients as of March 2009 (from 1 of 20 Social Security number segments) with military earnings during certain wartime periods who appeared to meet VA’s [Department of Veterans Affairs'] requirements for benefits. [This would have to be non-service connected VA disability benefits, a point that the report should have made clear. Some of these veterans would also qualify for service connected disability benefits from VA.] We randomly selected 100 cases from this population for detailed analysis. (See Appendix B for more details on our scope, methodology, and sample results.)

RESULTS OF REVIEW

We found that some SSI recipients appeared potentially eligible for VA benefits instead of SSI payments. Based on our review, we estimate SSA paid about $1.3 billion to approximately 22,000 SSI recipients who appeared to meet VA requirements for benefits. In addition, we estimate that SSA will continue to pay about $126 million in SSI payments over the next 12 months to individuals who appeared eligible for VA benefits instead of SSI payments.

Of the 100 cases in our sample,
• 45 appeared potentially eligible for VA benefits;
• 45 did not appear eligible for VA benefits; and
• 10 had military earnings, but we were unable to determine potential VA benefit eligibility.

Award To Medicare Rights Center

The Medicare Rights Center has received an award from the Social Security Administration for its outreach efforts on Extra Help, a program which helps low income Americans pay deductibles and co-payments for the Medicare prescription drug benefit.

Surprising E-Verify Problem

All federal agencies are supposed to use the E-Verify system to determine that new hires are eligible to work in the U.S. E-Verify is a Department of Homeland Security operation, in theory, but the data comes from the Social Security Administration.

It turns out that in the first six months of fiscal year 2009, 19% of Social Security's new hires were not cleared through E-Verify according to a report from Social Security's Office of Inspector General(OIG). Forty-four of those new hires would not have been cleared by E-Verify. (The report does not go into this point but probably in most cases, maybe even all cases, the problems preventing the individual from being cleared by E-Verify would have been technical and could have been corrected.) Of those new hires who were verified, 49% were not verified on a timely basis, which is within three days of being hired.

Social Security agreed with OIG that the agency needs to do better.

Federal Computer Week is running a story on this.

Bomb Threat In Pennsylvania

A man has been arrested for yelling "If I don't get my check, I'm going to blow this building sky high" as he left the Easton, Pennsylvania Social Security field office.

Chubby Checker And Social Security

From Social Security's E-News:

Michael J. Astrue, Commissioner of Social Security, and Chubby Checker, the Grammy Award winning rock and roll legend, today launched a new public service campaign to inform millions of Americans about a new "twist" in the law that will make it easier to qualify for Extra Help with Medicare prescription drug costs. To learn more, click here.

Health Care Reform And Medicare

The Coalition to End the Two-Year Wait for Medicare has sent a letter to the Speaker of the House of Representatives and the Senate Majority Leader giving their views on the pending health care reform legislation. The two year wait that the Coalition's name refers to is the waiting period for Medicare after a person becomes eligible for disability benefits under Title II of the Social Security Act. The waiting period is actually two and a half years since it is on top of a five month waiting period before cash benefits begin that is usually six months because it is five full calendar months.

The letter is a good summary of the possible effects of the bills going into conference between the House and the Senate. Eliminating the two year waiting period is out of the question at the moment. The main issue is how many of these people will qualify for Medicaid. Here is an excerpt from the letter:

While both bills have a Medicaid expansion as an essential element in providing coverage to the uninsured, the House bill extends eligibility to people not eligible for Medicare with incomes up to 150 percent of the federal poverty level. The Senate bill’s ceiling on eligibility is set at 133 percent of the federal poverty level. Expanding eligibility for Medicaid will provide people with disabilities living near the poverty level access to comprehensive health coverage with limited cost sharing. Compared to providing coverage through an exchange, expanding Medicaid is both cost-effective and provides a level of benefits that helps eliminate cost as a barrier to care. We urge you to adopt the House bill’s directive to set eligibility for Medicaid at 150 percent of the federal poverty level.

The House and Senate bills also differ considerably in the help they provide with premiums and cost-sharing for individuals with limited incomes but above the Medicaid eligibility threshold. For example, under the Senate bill, individuals at 200 percent of the federal poverty level pay a higher share of income in premiums for plans that pay a smaller percentage of health care costs (lower actuarial value) than under the House bill. As a result, people with disabilities and limited incomes could face a combination of high premiums and large deductibles that make cost, even under the new coverage options available through the exchange, a continuing barrier to care. The Senate bill does provide valuable protections worth maintaining in the final bill, including overall caps on out-of-pocket spending and more generous premium subsidies for individuals between 250 percent and 400 percent of the federal poverty level. However, it is essential that the final bill provide affordable coverage to people with disabilities on limited incomes. We urge you to adopt the actuarial values for exchange plans and the premium subsidies for people with limited incomes from the House bill.

Number Of Employees At Social Security Continues To Climb

Below are the September 2009 figures for the number of employees at Social Security, recently released by the Office of Personnel Management (OPM), along with earlier figures for comparison purposes.

• September 2009 67,632
  
• June 2009 66,614
  
• March 2009 63,229
  
• December 2008 63,733
  
• September 2008 63,990
  
• June 2008 63,622
  
• March 2008 60,465
  
• December 2007 61,822
• September 2007 62,407
• September 2006 63,647
• September 2005 66,147
• September 2004 65,258
• September 2003 64,903
• September 2002 64,648
• September 2001 65,377
• September 2000 64,521
• September 1999 63,957
• September 1998 65,629

New SSI Regulations

Social Security has posted new final regulations in the Federal Register. These are technical revisions to the Supplemental Security Income (SSI) regulations on income and resources. The changes concern:

• Statutory Employees
• Exclusion of Child Tax Credit (CTC) From Income and Resources
• Exclusion of Flood Mitigation Payments From Income and Resources
• Exclusion of Energy Employee Occupational Illness Medical Benefits and Compensation Payment From Income and Resources
• Home Exclusion to Victims of Domestic Abuse
• Conditional Payments
  

But What If They Say No?

Social Security has posted a notice in today's Federal Register stating that it has decided to set a standard $15 payment that it will make for electronically transferred medical records. According to Social Security "The $15 rate is based on our average payment for medical records obtained through non-health IT [Information Technology] processes."

I would like to cap what my firm pays for medical records in this fashion. Unfortunately, even with a state statute controlling medical record cost, we have to pay more in most cases or we do not get the records we want.

Fee Payment Numbers

Social Security has posted these final numbers on payments to attorneys and others for representation of claimants before the Social Security Administration in 2009.

Fee Payments
Month/Year	Volume	Amount
Jan-09	28,423	$101,128,880.69
Feb-09	31,352	$112,791,207.17
Mar-09	29,199	$104,155,187.96
Apr-09	30,963	$110,133,425.19
May-09	36,603	$126,725,262.45
June-09	31,799	$113,962,564.84
July-09	34,802	$124,621,068.71
Aug-09	28,218	$100,279,282.51
Sept-09	28,455	$100,918,402.40
Oct-09	36,729	$131,011,485.43
Nov-09	29,423	$103,696,628.46
Dec-09	25,753	$90,630,340.80

California May End Furloughs Of State Employees Who Make Disability Determinations For Social Security

From the New York Times:

Gov. Arnold Schwarzenegger took his first shot at closing California’s impending $20 billion budget gap on Friday ...

Mr. Schwarzenegger also proposed ending the furloughs for state workers, which were begun last year by the administration and were overturned in part in court battles waged by some unions. In their place, the governor said that he would like to see 5 percent pay reductions across the board, and that he wanted state employees to contribute an additional 5 percent toward their retirement costs.

OIG Report On Arizona Biltmore Conference

Social Security's Regional Management Conference at the Arizona Biltmore last July led to adverse press attention for the agency. Senator Charles Grassley, the Ranking Minority Member of the Senate Finance Committee, asked for a report by Social Security's Office of Inspector General (OIG) on the conference. Here are some excerpts from the recently released report:

In general, we found most of the approximately $675,000 in costs incurred at the Training Forum was properly supported and in compliance with Agency guidance and applicable laws and regulations (see cost breakout in the table below). However, we question whether approximately $13,400 spent on reception refreshments was allowable, since the reception did not meet the established criteria for such refreshments. We also found the Region accepted gifts and donations from outside sources for the conference, which may be inconsistent with ethical guidelines and other policies. In addition, we found that regional staff could have maintained better contract procurement documentation related to the trainers. ...

The Training Forum was held at the Arizona Biltmore Hotel, which was selected as part of a competitive bidding process. The Region contracted with a private firm representing the Hotel to supply the necessary space as well as meals and refreshments. The bid related to the Hotel stated it had 738 guest accommodations and restaurants on-site as well as proximity to off-site restaurants, shopping, and airport shuttle transportation.

The Hotel charged $85.51 per room per night, which was below the Government per diem of $96 per room per night. ...

A number of non-governmental organizations donated items to the conference (see Appendix F) that were later used as free employee door prizes. We believe the Agency’s acceptance of such donations was inappropriate for a number of reasons. First, we believe the acceptance of outside donations may be mistaken for SSA’s endorsement of a product. For example, Blue Cross/Blue Shield donated small items, such as pens, dental floss, and key chains with flashlights. Since Blue Cross/Blue Shield is one of many companies that provide health insurance to SSA employees, the acceptance and distribution of such items to SSA employees may be interpreted as SSA’s endorsement of this company’s product. ...

The Region also accepted a donation of the services of a disc jockey from the San Francisco Region Management Association (SFRMA) at the opening night reception, a service that regional managers estimated would have cost about $1,200. The receipt of such services appears to violate the voluntary services prohibition of the Antideficiency Act.

Questions Raised On Contract With Mathemetica

From Contract With Mathematica Policy Research, Inc., For Services To Evaluate Youth Transition Demonstration Projects, a report by Social Security's Office of Inspector General (OIG):

SSA contracted with Mathematica to support the development, implementation, and evaluation of the Youth Transition Demonstration (YTD) interventions designed to help youth with disabilities maximize their economic self-sufficiency as they transition from school to work. ... The contract period of performance was September 30, 2005 to September 29, 2014. As of September 2008, there were nine modifications to this contract (see Appendix D), and SSA had expended approximately $17.1 million of the $46.8 million contract award. ...

For the first 3 years of the 9-year contract period, SSA received the goods and services for which it contracted. However, a lack of tangible results achieved to date through this and previous YTD projects funded by SSA raises concerns as to whether additional expenditures on YTD projects will yield significant benefit to SSA. ...

Work performed under this contract was intended to build on background research, conceptual frameworks, measurement strategies, and evaluation findings from ongoing and previous SSA evaluation projects conducted since 1999. To date, SSA has received little tangible benefit from approximately $42.4 million spent on YTD-related projects since 1999. In addition to $17.1 million expended under this contract through September 2008, SSA spent approximately $25.3 million on three previous YTD-related initiatives. ...

A senior Agency official indicated that predecessor YTD-related projects conducted over the past 10 years encountered significant problems that diminished their effectiveness. While these setbacks could reasonably have resulted in reconsideration of continued project funding, SSA instead increased funding and expanded the projects. Given the history of setbacks and the substantial costs expended, SSA should have established clear expectations, including cost-effectiveness, with measurable results and interim assessments to inform decisions on continued funding. Instead, Agency officials plan to perform a cost-benefit analysis only after the contract is completed. SSA strongly disagreed with our conclusion and stated the outcome of this contract is not policy changes or monetary savings to the Agency but rather a report that answers whether the interventions successfully help youth transition into adulthood, which informs SSA about the costs or savings to the Agency should such a program be implemented. ...

Based on the lack of results achieved from the $42.4 million in YTD expenditures made from Fiscal Years (FY) 1999 through 2008, we believe a substantial risk exists that spending the $29.7 million remaining on this contract will provide little or no actual benefit to SSA.

Sixth Circuit Says The DOT May Not Be Enough To Justify Denial

From Cunningham v. Astrue:

The VE based his testimony on job descriptions contained in the Dictionary of Occupational Titles (“DOT”), a document published by the Department of Labor that was more than a decade old when the ALJ heard Cunningham’s claim. While the Social Security Commissioner does take administrative notice of this document when determining if jobs exist in the national economy, 20 C.F.R. § 404.1566(d)(1), common sense dictates that when such descriptions appear obsolete, a more recent source of information should be consulted. The two relevant descriptions here—document preparer and security camera monitor—strike us as potentially vulnerable for this reason. Without more, however, we cannot adequately review whether these job descriptions were up-to-date and, thus, whether the VE’s testimony was reliable. ...

In light of the fact that more current job descriptions were available at the time of the hearing before the ALJ—the Department of Labor replaced the DOT with the Occupational Information Network (O*NET), a database that is continually updated based on data collection efforts that began in 2001— and that the two descriptions relied on by the VE are not found in O*NET, we conclude that the VE’s dependence on the DOT listings alone does not warrant a presumption of reliability. E.g., O*NET Resource Center, http://www.onetcenter.org/dataCollection.html (last visited Jan. 4, 2010). As such, we remand to the Commissioner for consideration of whether the DOT listings, specifically the document preparer and security camera monitor descriptions, were reliable in light of the economy as it existed at the time of the hearing before the ALJ.

Social Security's plan to do something about the DOT sometime in the next ten years or so may not work. The agency should have started serious work on this at least ten years earlier. The only option now may be something quick and dirty.

Update: I have been asked to note that the Court did not recommend this opinion for publication which means that it is not precedential. Either party can ask the Court to change this to a published decision. I would be surprised if appellant's counsel failed to do so. In any case, once attorneys know this argument worked one time, it is likely to be used again. A Court can declare an opinion non-precedential but a Court cannot prevent attorneys representing other clients from being influenced by it.

Information On New Hearing Offices

Social Security's Office of Inspector General (OIG) has just released The Office of Disability Adjudication and Review’s Staffing Plans Under the American Recovery and Reinvestment Act. It is tempting to wonder if this report had something to do with David Foster's abrupt departure from ODAR but there is nothing in the report to suggest that.

The report does give a summary of ODAR's plans for opening new hearing offices this year. I wish I could do this as a table but Blogger makes that almost impossible. What I can do is give you the data separated by commas. First you see the location of the new hearing offices, after a comma there is the number of Administrative Law Judges to be assigned to the offices, after another comma there is the total number of staff to be assigned to the office, and finally, after another comma, you will see the projected opening date for the office.

New Hearing Office Location, ALJs To Be Assigned To Office, Total Staff To Be Assigned To Office, Planned Opening Date (All In 2010)

• Anchorage, Alaska 2, 11, February
• St. Petersburg, Florida 11, 54, May
• Akron, Ohio 12, 58, June
• Livonia, Michigan 10, 49, June
• Madison, Wisconsin 6, 30, June
• Phoenix, Arizona 8, 39, June
• Tallahassee, Florida 5, 45, June
• Toledo, Ohio 10, 49, June
• Covington, Georgia 9, 45, July
• Topeka, Kansas 5, 26, July
• Fayetteville, North Carolina 9, 58, August
• Mt. Pleasant, Michigan 12, 58, August
• Valparaiso, Indiana 12, 63, August
• Totals 111, 585

Personnel Changes

MEMORANDUM

Date: January 5, 2010

Refer To: S7K
To: Senior Staff

From: Michael J. Astrue /s/

Commissioner

Subject: Executive Personnel Assignments - INFORMATION

In addition to those assignment changes announced in October 2009, I am making additional executive assignment changes affecting the Offices of Disability Adjudication and Review and Quality Performance.

David Foster will move from Deputy Commissioner for Disability Adjudication and Review to Assistant Deputy Commissioner for Quality Performance.

Glenn Sklar will move from Assistant Deputy Commissioner for Quality Performance to Deputy Commissioner for Disability Adjudication and Review.

Judy Kautsch will return to be the Associate Commissioner for Electronic Services and Strategic Information.

Theresa Gruber, currently in the SES Candidate Development Program, will serve as the Acting Assistant Deputy Commissioner for Disability Adjudication and Review.

Judge William King has been named Acting Regional Chief Administrative Law Judge (ALJ) in San Francisco.

Judge JoAnn Anderson, most recently Acting Regional Chief ALJ in San Francisco, is on a detail assignment as Acting Associate Chief Judge overseeing special initiatives in the immediate Office of the Chief Judge.

Judge Robert Wright, Hearing Office Chief Judge in Albany, NY, is the Acting Associate Chief Judge for the National Hearing Center.

David Foster Leaves ODAR

An e-mail message:

From: Foster, David V.
Sent: Tuesday, January 05, 2010 2:45 PM
To: Kautsch, Judy; Jonas, Patricia; Ray, Gerald; Cristaudo, Frank; Griswold, Nancy J.; Rime, Carla; Ramirez, Adolph; McDaniel, Eileen; McKinnon, Beth; Stewart, Patrice; Bentley, James; Reich, Elizabeth; Sanchez, Raymond; Murdock, John; Meisels, Ray; Wright, Robert; Markowski, Lisa; Watts, Robbie; Schneider, Sybil; Garcia, Ernesto; Smith, Regina B.; Delisle, Michelle; #ODAR All Managers; Taylor, Paula; #ODAR All RCALJs
Cc: Wells, Reginald

Subject: Announcement

Effective immediately, I am no longer Deputy Commissioner for ODAR. I have greatly enjoyed working with all of you and expect that you will do great things on behalf of ODAR and for the American people. Good luck. David

I do not know what happened. This e-mail sounds awfully abrupt.

Backlogs In Maine And How To Pronounce NOSSCR

From the Maine Public Broadcasting Network:

According to figures from the National Organization of Social Security Claimants Representatives, known as NOSSCR -- or noss-car -- the backlog of people around the country waiting for decisions on their social security disability applications increased by more than 38 percent last year.

Nationally, the number of new claims filed between 2008 and 2009 jumped 14 percent. In Maine, it was slightly higher: 17 percent. Topsham attorney Jim Fongemie says all this is creating longer wait times for decisions and hardships for his clients who are appealing their initial denials. ..

It's a trend that mirrors what's happening around the country, says spokesman Steve Richardson of the Social Security Administration. "We always see the unemployment rate affects the number of disability claims we receive, and with the recent unemployment numbers at over ten percent, the number of our disability applications are expected to peak in 2010 at over 3.3 million, and that's kind of what we're seeing."

More On Las Vegas Shootings

From the Las Vegas Sun:

Johnny Lee Wicks, identified as the man who opened fire at the federal courthouse Monday morning in downtown Las Vegas, has been at odds with the federal government over Social Security benefits for about two years. ...

Wicks moved from California to Nevada in January 2008 and called the Social Security Administration’s Nevada office soon thereafter to change his address, according to an August 2009 report in the case by U.S. Magistrate Judge George Foley Jr.

Wicks likely was surprised and upset to learn that his Social Security benefits would be reduced due to the move because he would be losing a "California State Supplement’’ of $317 a month to his federal Social Security benefits. ...

Foley’s report shows Wicks had in-person meetings with a Social Security case manager at the agency office at 1250 S. Buffalo Drive as well as telephone and U.S. mail contact with the agency before filing his suit.

"Plaintiff met with (the case manager), who was allegedly disrespectful and told the plaintiff to move back to California,’’ Foley’s report says.

Things may have gotten worse in February 2008 when Wicks received a notice from the Nevada Social Security office that he had been overpaid $317 and asked him to repay the money and saying that, otherwise, it would withhold $63.70 per month beginning in May 2008.

The agency later found Wicks did not need to repay the overpaid $317, records show.

Nevertheless, Wicks filed his lawsuit alleging that in cutting his benefits, his civil rights were violated by the agency because of his race (black).

"Lots of state workers and agencies have taken part in this scam, mainly for old blacks who are not well educated,’’ Wicks charged in the lawsuit, in which he had no attorney and represented himself.

Probably, Mr. Wicks' psychiatric problems were too severe for any explanation or kindness to get through to him but this tragedy does underline the importance of good customer service even to claimants who are obviously deranged. Who knows how many similar incidents have been headed off by gentle, patient explanations?

Card Files At Social Security -- Late 1930s

Assault In Las Vegas Was Based On Social Security Dispute

From the Las Vegas Sun:

A man upset over losing a lawsuit regarding his Social Security benefits walked into the Lloyd D. George Federal Courthouse in downtown Las Vegas this morning, pulled a shotgun from beneath his jacket and opened fire, killing a court security officer. ...

While the investigation is still under way, the officials say the early evidence points to the man's anger over his benefits case as the motive for the shooting.

Press Release On California Decision

A press release from Social Security:

Michael J. Astrue, Commissioner of Social Security, issued the following statement regarding two recent decisions of the California Superior Court for the County of Alameda:

"When it comes to the furlough of state employees whose jobs are paid for by federal funds, California Superior Court Judge Frank Roesch ruled state officials have 'abused their discretion' and that 'such a policy is arbitrary, capricious and unlawful.' I could not agree more.

For more than a year, I have made the case that these furloughs cost states money, hurt their most vulnerable citizens, and harm hard-working civil servants. California’s furlough of Disability Determination Service (DDS) employees costs the state $849,000 per furlough day in administrative funding. More importantly, each furlough day results in a delay costing California’s disabled citizens over $420,000 in much-needed Social Security benefits. For the sake of the citizens of California, I call on Governor Schwarzenegger to reject his own failed policy and not appeal the court's ruling.

Social Security funds 100 percent of DDS employees’ salaries as well as all overhead costs -- about $2 billion nationwide this year. These funds cannot be used by the states for any other purpose, so states do not save a single penny by furloughing employees in the DDSs – they only slow getting benefits to the disabled, unduly harm its civil servants, and cost the state needed tax revenue. Nevertheless, about a dozen governors are imposing similar across-the-board hiring freezes or furloughs that also affect DDS employees. I sincerely hope Congress will use its oversight authority to investigate not just California, but the other states that are using -- or have used -- furloughs and hiring freezes for positions that are fully funded by the Social Security Administration and other federal agencies."

To read the entire decision in Service Employees International Union Local 1000, and Yvonne Walker v. Arnold Schwarzenegger, et al., click here.

To read the entire decision in Union of American Physicians and Dentists v. Arnold Schwarzenegger, et al., click here.

To read the California state report, click here.

To read a letter from Vice President Biden to the Governors, click here.

What gets me is that the reason given for refusing to exempt state employees whose salaries are not paid for by state money is that state employees who were not exempted from the furlough would get angry yet state employee unions are suing to get some employees exempted from the furlough even though those unions presumably represent employees who would not be exempted from the furlough. I would like to put this all down to the fact that the nuttiness of California politics but much the same thing is happening in several other states.

Field Office Experience With Social Security Verification Of Citizenship

It sounds bizarre to me and probably to many of my readers but Social Security records are being used more and more as a means of verifying citizenship. As an example, Social Security has just put out an Emergency Message to its staff concerning inquiries from the public occasioned by the use of Social Security records to verify citizenship for purposes of Medicaid and the S-CHIP program.

My concerns with this are that the Social Security records were not set up as a means of verifying citizenship and that the Social Security Administration may lack adequate staff to deal with the inquiries and problems resulting from the inevitable errors in these records.

I would be interested in hearing how this is going from those who work in the field offices. How many inquiries are you getting? Is it a major part of your workload? Are the people making the inquiries upset, even desperate? How long is it taking to resolve problems? Is this is a big and growing problem or something Social Security can take in stride?

Most Popular Stories Of 2009

Here is the top ten list of most popular stories on Social Security News in 2009, many of which are actually stories from prior years:

1. $250 Economic Stimulus Payment Questions And Answers
2. Stimulus Bill Payment To Social Security Recipients Down To $250
3. List Of New ALJs (2008)
4. New ALJ Forum (2007)
5. Economic Stimulus Bill Has $900 Million For Social Security And Bonus For SSI Recipients
6. Federal Employee Salaries
7. Binder and Binder Lawsuit (2008)
8. More Deflation -- COLA Consequences? (2008)
9. Payment Center Direct Contact (2007)
10. I Had Noticed ...

No, I don't understand why some of these were so popular.

First Claim For Disability "Freeze" Taken On This Date In 1955

According to Social Security's history office, "This photo shows the first disability freeze application being taken in the Wheeling, West Virginia office on January 2, 1955. The applicant (left) is Mr. William Calvin King. The claim is being taken by the local Social Security office manager, Edgar Allen Poe (no foolin'!)." The earnings record "freeze", or period of disability to be technically correct, was enacted two years before cash disability benefits.

California Court Enjoins Furloughs

I was not expecting there to be news about Social Security on New Year's Day, but there is. State budget problems have become a major headache for Social Security. States are furloughing employees and imposing hiring freezes. These actions usually affect the state disability determination agencies that make determinations on Social Security disability cases at the initial and reconsideration levels. This is happening even though the furloughs and hiring freezes do nothing to help state budgets since all salaries and costs associated with the disability determination agencies are picked up by the federal government. State governors seem to believe that the fair thing is to treat all their employees the same.

The state that has the worst budget problems is California. It was had the worst furloughs of state employees, including disability determination emploees. This has had a dramatic effect upon disability determination in that most populous of all states.

One response to this mess has been litigation. Social Security did not start this litigation but has filed a "Statement of Interest" with the California court. It is extremely unusual for any federal agency to take an official position in a case pending in a state court other than to file papers to remove a case to federal court or to assert that a state court lacks authority to compel the federal agency to do anything. The Los Angeles Times reports on what happened yesterday in that litigation:

An Alameda County Superior Court judge Thursday ordered Gov. Arnold Schwarzenegger to halt thrice-monthly furloughs for tens of thousands of state workers, saying the administration overstepped its authority in approving the unpaid days off. ...

He said that the governor's use of furloughs was an "abuse of discretion" and that he "violated a mandatory duty to take into account the agencies' varying needs before reducing workplace hours."

The governor plans to appeal Roesch's decision and noted that the order blocking the furloughs would be stayed until the appeal is ruled on, said Aaron McLear, a spokesman for Schwarzenegger.

Happy New Year!