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Oct 27, 2015

The Actual Language From The Big Deal -- Doesn't Look Dramatic But Hard To Understand

     The reporting from various media sources last night on the Social Security provisions of the deal between the White House and Congressional leaders varied from confused to inadequate to completely wrong. We have the actual bill now. Here is some of the actual text of the bill with my interpretation, or maybe I should say questions, in brackets and bolded:
  • Not later than October 1, 2022, the Commissioner of Social Security shall take any necessary actions, subject to the availability of appropriations, to ensure that cooperative disability investigations units have been established, in areas where there is co-operation with local law enforcement agencies, that would cover each of the 50 States, the District of Columbia, Puerto Rico, Guam, the Northern Mariana Islands, the Virgin Islands, and American Samoa. [Congress demands that Social Security extend cooperative disability reviews to every state and even to the Northern Mariana Islands but limits this to the extent that Congress appropriates money, dramatically undercutting the demand]
  • Section 3 811(a) of such Act (42 U.S.C. 1011(a)) ... is further amended by striking the period at the end and inserting ‘‘, except that in the case of a person who receives a fee or other income for services performed in connection with any determination with respect to benefits under this title (including a claimant representative, translator, or current or former employee of the Social Security Administration), or who is a physician or other health care provider who submits, or causes the submission of, medical or other evidence in connection with any such determination, such person shall be guilty of a felony and upon conviction thereof shall be fined under title 18, United States Code, or imprisoned for not more than ten years, or both.’’. [I don't understand. It's now a crime to submit medical evidence in support of a disability claim? This doesn't make sense to me.]
  • Section 1140(b) of such Act (42 U.S.C. 15 1320b-10(b)) is amended by inserting after the second sentence the following: ‘‘In the case of any items referred to in subsection (a)(1) consisting of Internet or other electronic communications, each dissemination, viewing, or accessing of such a communication which contains one or more words, letters, symbols, or emblems in violation of subsection (a) shall represent a separate violation’’. [Even viewing an inappropriately used Social Security symbol is a crime?]
  • The Commissioner shall carry out a demonstration project ...[A]ny such benefit otherwise payable to the individual for such month (other than a benefit payable for any month prior to the 1st month beginning after the date on which the individual’s entitlement to such benefit is determined) shall be reduced by $1 for each $2 by which the individual’s earnings derived from services paid during such month exceeds an amount equal to the individual’s impairment-related work expenses for such month [OK, we're only talking about a benefits offset demonstration project.] ... For purposes of paragraph (2)(A) and except as provided in subparagraph (C), the amount of an individual’s impairment-related work expenses for a month is deemed to be the minimum threshold amount. [This sounds like a stringent offset. Any earnings over impairment-related work expenses are subject to the offset. That would strongly discourage work by Social Security disability recipients]... In this paragraph, the term ‘minimum threshold amount’ means an amount, to be determined by the Commissioner, which shall not exceed the amount sufficient to demonstrate that an individual has rendered services in a month, as determined by the Commissioner under section 222(c)(4)(A). [What are you saying here? There is a threshold amount beyond the impairment-related work expenses? I don't understand what you're trying to say.] The Commissioner may test multiple minimum threshold amounts.[So lots of thresholds will be tried. Good.] ... An individual who has authorized the Commissioner of Social Security to obtain records from a payroll data provider under subsection (c) shall not be subject to a penalty under section 1129A for any omission or error with respect to such individual’s wages as reported by the payroll data provider.’’.  [You're going to enforce the benefit offset by getting electronic records from employers and you won't punish the claimant if these records are mistaken. Sounds fine if these electronic records are accurate. Are they? I don't think my firm is reporting wages to anyone other than the IRS. What about self-employment?]
  • If an individual is eligible for a wife’s or husband’s insurance benefit (except in the case of eligibility pursuant to clause (ii) of subsection (b)(1)(B) or subsection (c)(1)(B), as appropriate), in any month for which the individual is entitled to an old-age insurance benefit, such individual shall be deemed to have filed an application for wife’s or husband’s insurance benefits for such month. ... If an individual is eligible (but for section 202(k)(4)) for an old-age insurance benefit in any month for which the individual is entitled to a wife’s or husband’s insurance benefit (except in the case of entitlement pursuant to clause (ii) of subsection (b)(1)(B) or subsection (c)(1)(B), as appropriate), such individual shall be deemed to have filed an application for old-age insurance benefits. [I think they're ending file and suspend.]
  • An initial determination under subsection (a), (c), (g), or (i) shall not be made until the Commissioner of Social Security has made every reasonable effort to ensure—  ‘‘(1) in any case where there is evidence which indicates the existence of a mental impairment, that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment; and ‘‘(2) in any case where there is evidence which indicates the existence of a physical impairment, that a qualified physician has completed the medical portion of the case review and any applicable residual functional capacity assessment.’’. [This ends the Single Decision-Maker project. This modestly slows down disability determinations.]
  • Section 201(b)(1) of the Social Security Act (42 U.S.C. 401(b)(1)) is amended by striking ‘‘and (R) 1.80 per centum of the wages (as so defined) paid after December 31, 1999, and so reported’’ and inserting ‘‘(R) 1.80 per centum of the wages (as so defined) paid after December 31, 1999, and before January 1, 2016, and so reported, (S) 2.37 per centum of the wages (as so defined) paid after December 31, 2015, and before January 1, 10 2019, and so reported, and (T) 1.80 per centum of  the wages (as so defined) paid after December 31, 12 2018, and so reported,’’. [This would end the Disability Trust Fund problem but only for three years, at which point we may have to go through the same "crisis" again.]
  • The Commissioner of Social Security shall annually submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report on the number of work-related continuing disability reviews conducted each year to determine whether earnings derived from services demonstrate an individual’s ability to engage in substantial gainful activity. [Is work supposed to trigger a continuing disability review, that is, if you do any work, is Social Security supposed to review your medical records to see if you're still disabled? If that were the case it would be a big deterrent to any attempt to return to work. I think, or maybe hope, that they are just talking about using employment records to determine whether a beneficiary's status under the work incentives.] 
  • Notwithstanding any other provision of law, the Office of Personnel Management shall, upon request of the Commissioner of Social Security, expeditiously administer a sufficient number of competitive examinations, as determined by the Commissioner, for the purpose of identifying an adequate number of candidates to be appointed as Administrative Law Judges under section 3105 of title 5, United States Code. The first such examination shall take place not later than April 1, 2016 and other examinations shall take place at such time or times requested by the Commissioner, but not later than December 31, 2022. Such examinations shall proceed even if one or more individuals who took a prior examination have appealed an adverse determination and one or more 1 of such appeals have not concluded ...[This is strong pressure on the Office of Personnel Management to assure that enough Administrative Law Judge candidates are available to be hired by Social Security. Why do I suspect that this problem won't go away?]

15 comments:

  1. Thank you so much for this summary and your excellent notations on same. Any reprter worth their salt should review this post before writing their article on SSDI.

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  2. I think you're right about file and suspend although the effective date seems a little murky. In one sense it seems to apply to those attaining age 62 after 2015 and in another suspend seems to prohibit benefits effective 180 days after signing.

    Would be interested in any other insights in this regard.

    Otherwise, and ever as to file and suspend, there is nothing that would be impossible to live with. Certainly noting to indicate the ridiculous Heritage proposal to cap benefits appears anywhere for now.

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  3. Wow. So the "crisis" of intra-fund borrowing has now been resolved for the next 3 years with no "ransom" of draconian cuts. Can we now exhale?

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  4. Charles wrote:

    "[I don't understand. It's now a crime to submit medical evidence in support of a disability claim? This doesn't make sense to me.]"

    ==========

    No, the bill doesn't propose making it a crime to submit medical evidence in support of a disability claim. You have to read the entire statutory provision that is being amended. 42 U.S.C. 1011(a) deals with fraud; the proposed amendment just stiffens the penalty for insiders, claimant's representatives, and medical providers.

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  5. Thanks for all your good work Charles
    I knew this would be the best place to look for real news on this issue.
    The reporters just want exciting headlines and to repeat the talking points they are given.

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  6. A nice collection that really amounts to a huge nothing. Why? Because I doubt there are 10 people in Congress that actually have a clue what SSDI is, how it works and how people on the program get by.

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  7. Try this summary of what is going on here:
    http://docs.house.gov/meetings/RU/RU00/CPRT-114-RU00-D001.pdf

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  8. The ending of the SDM is huge in that now there will be a medical opinion supporting a denial. In SDM states there was often no medical opinion evidence except from the treating physician. Look for more ALJ denials.

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  9. I don't think you're right about file and suspend. The 5th bullet appears aimed at individuals who file for spouse benefits at full retirement age while delaying filing for their own retirement benefits, usually until they've earned maximum delayed retirement credits at age 70. The deemed filing rule that applies to applications for spouse and retirement benefits effective before full retirement age will now be extended. You can still "file and suspend", but doing that reduces or eliminates eligibility for spousal benefits.

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  10. So does this mean deducting 1 dollar for every 2 earned after SGA or are they getting rid of SGA?

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  11. @ 2:33

    I don't understand your comment. Unless a State is a prototype State, all claims that reach ODAR have at least one MD/DO opinion--SDMs only do physical RFCs and only at the initial level.

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  12. Your last point is the Agency's attempt to get around the MSPB binding precedent which contains a prohibition against the testing of attorney's for positions with the Agency. Jarred v. Commissioner In Jarrad v. Social Security Commission, 2010 M.S.P.B. 207, p. 12 “the agency correctly argued, applicants for attorney positions cannot be lawfully subjected to an examination” in order to avoid granting a veteran attorney preference...

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  13. The demo was cooked up by Paul Ryan's guys. It amounts to a colossal waste of money to test a proces which has no chance of increasing the number of DI beneficiaries who leave the rolls to return to work. So much for Mr. Ryan's professed brilliance.

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  14. I think it's cool that COSSA gets to demand OPM run another ALJ exam (albeit at SSA's expense) whenever she/he wants and that there is some ability to for SSA to force OPM to give more names. Seems like it might be a great five years or so to be applying for ALJ!

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  15. Work at a substantial level already triggers a CDR. We are supposed to review them to see if claimants are working despite having a disability. Those who "meet a listing" may possibly still meet the listing, say, for deafness, and be earning SGA. But for those allowed for medical vocational reasons, it is very difficult to say that they have not improved over their status when allowed. Most are cessations. Therefore, I think this might be saying that they want to collect information to determine if earning at the SGA level can per se be taken to indicate that the claimant is no longer disabled. The work incentives largely apply to SSD. (Expedited reinstatement if they do not complete the trial work period, 36 months of Medicare even though they are working, if they are still considered disabled.) Frankly, a lot of people find it in their best interest to become unable to work before the end of the trial work period. Most quickly figure out what level of income will trigger a work CDR and make every effort to stay below that level.

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