May 27, 2020

I Predict This Will Come To Pass If Biden Is Elected

     From Regulating Impartiality In Agency Adjudication by Kent Barnett, 69 Duke L.J.1695-1748 (2020):
... [T]he majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators [such as Administrative Law Judges] and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially agency adjudicators, from at-will removal.
This Article argues that the executive branch itself can and should moot or mitigate this constitutional clash. Nothing in Article II prevents the president from issuing executive orders and agencies from promulgating regulations—collectively, what I refer to as “impartiality regulations”—that require good cause for disciplining and removing agency adjudicators, as well as other means of protecting adjudicator impartiality. Indeed, the executive branch has a long-standing yet overlooked practice of using executive orders and regulations for similar purposes. Impartiality regulations are but one form of the executive branch’s internal separation of powers. Such self-imposed separation provides a strong theoretical and practical solution for the agency-adjudicator dilemma. ...
    This may be the rare law review article that has an effect on the real world.
     By the way, my assumption here is that in Seila Law v. CFPB the Supreme Court will find the position of director of the Consumer Finance Protection Board to be unconstitutional because the incumbent may only be discharged for cause. Perhaps, I should say I expect that the Supreme Court will hold that while the position itself is constitutional, that the incumbent no longer has protection against being discharged without cause. The same would be the case for the position of Commissioner of Social Security. Administrative Law Judges would be next in line and I expect the same for them. I don't think Seila Law is getting as much attention as it should. Lucia was easily dealt with. Seila Law is a much larger threat to federal administrative law. Probably, the only way to deal with it is what the author of this article suggests, that is assuming that one cares about administrative justice. I think that Democrats care about administrative justice. I think that Republicans are enthralled with the idea of "deconstructing the administrative state." I think the only possible result of that is anarchy but judging by the Trump Presidency, Republicans like anarchy.

May 26, 2020

This Isn’t Making Sense To Me

     From Federal News Network:
... While the Social Security Administration has been under pressure for not yet rolling out electronic signatures, the agency, which handles Medicare Part B enrollment applications on behalf of the Centers for Medicare and Medicaid Services, is launching an online form to digitize what has been a completely paper-based process. 
“You either walk it into a field office, you fax it in or you mail it in, but ultimately there’s going to be paper involved, David Ellison, SSA’s lead for digital transformation, said last Friday in an ACT-IAC webinar. “Right now, that isn’t happening, with the exception of some fax traffic that we’re picking up.” 
With the pandemic disrupting paper processes, Ellison said SSA is quickly putting together an online form that with have anti-spam CAPTCHA features built-in. 
“It’s not like the old ones, where you look at a grid and you have to pick out the bicycles, and if you get it all wrong, and you have to do it again. With the modern versions, that’s all done in the background,” he said. 
By pushing its anti-fraud measures to the background, Ellison said SSA strikes a balance between providing a straightforward, easy-to-navigate experience for the public, but still keeping fraud measures in place. 
“If someone is misrepresenting themselves, we have a lot of data, like the phone number they’re calling in with. If that’s mismatching with something that we have stored in our back-end systems, because we have a relationship with this citizen, we can steer that caller to someone who maybe is going to handle a fraud scenario, but we want to do it more in the background. We don’t want to expose all the citizens to an uncomfortable experience,” Ellison said. “We’re very lucky right now that these platforms are evolving to collect all this data and to be able to pass it along to our back-end fraud systems. ...
     I don’t understand. Are they designing something to help claimants or to stop fraud? How much fraud could there be in signing up for Medicare Part B? Will they really be treating every case where someone is calling from their child’s phone as if it were possible fraud? 
     Maybe the agency ought to get over its electronic signature paranoia especially for instances that involve a low potential for fraud. It’s not like requiring “wet” signatures gives any real protection against fraud.

Emergency Paid Sick Leave Problems

     From Government Executive:
... The first coronavirus response bill signed into law in mid-March included a provision called the Emergency Paid Sick Leave Act, which provides employees in both the public and private sectors with up to 80 hours of paid sick leave, as well as up to 10 weeks of paid leave at two-thirds of their regular pay for workers who have child and dependent care responsibilities due to school and daycare closures related to the coronavirus pandemic. 
Although the Labor Department offered employers a 30-day “non-enforcement period,” that ran out more than a month ago. As of Friday, the Social Security Administration still had not begun offering the benefit, and it has told stakeholders that the Interior Department’s Interior Business Center has said it will not have implemented it in its payroll software until July. 
The Interior Business Center did not respond to a request for comment, but a spokesperson told Federal News Network that it has provided a workaround to customer agencies until it can update the software. 
Couture said that Social Security has declined to use that workaround, proposing that employees file for weather and safety leave instead. Under this plan, employees would be paid their full pay rate, and likely would be forced to pay the remainder back once the new system is in place.  ...
     If you’re wondering what the Department of the Interior has to do with it, the story is that that agency operates something like a contractor. For a price they handle payroll functions for other agencies. I would have thought that Social Security is plenty big enough to handle its own payroll matters but apparently not. 

May 24, 2020

Delayed Stimulus Checks For Some On Social Securiy

     Some Social Security beneficiaries are still waiting on their economic stimulus checks, according to CBS News. Of course, the Social Security Administration gets caught in the middle. It's the Treasury which is making the payments.

May 23, 2020

Is This A Win For The ALJ Union? Seriously, I'm Not Sure

     From Government Executive:
The Federal Labor Relations Authority on Thursday announced that it would stay implementation of a new union contract set to be imposed between the Social Security Administration and the Association of Administrative Law Judges, reversing a previous ruling allowing it to proceed.
The judges union is one of several labor groups challenging the constitutionality of how members of the Federal Service Impasses Panel, which settles intractable disputes that come up during collective bargaining negotiations, are appointed.
In March, the FLRA denied a request from the judges’ union to block the Federal Service Impasses Panel from issuing an imminent decision imposing a new collective bargaining agreement between the union and the Social Security Administration, finding that the request did not fall under the narrow circumstances under which the FLRA can halt the impasses panel’s proceedings. ...
In April, the impasses panel issued a mostly pro-management decision, prompting the union to file a federal lawsuit in U.S. District Court for the District of Columbia, seeking to declare the panel’s decisions null and void. The union argued that because the impasses panel’s decisions cannot be directly appealed and panel members are supervised only by the president, they are principal officers and must receive Senate confirmation.
Although the Social Security Administration has said it would delay implementation of the new union contract due to the lawsuit, on Thursday the FLRA issued a new decision formally staying the panel’s decision from taking effect. In its ruling, the agency said the lawsuit constitutes a new “differentiating circumstance” necessitating this action. ...

May 22, 2020

Is This A Half Step Forward?

     From Emergency Message EM-20022 issued yesterday:
The purpose of this EM is to provide the Field Office (FO) and Payment Center (PC), and the Office of Hearings Operations (OHO) with temporary supplemental instructions for documenting appointment of a representative while the COVID-19 case processing procedures are in place. ...
To appoint a representative, our regulations require the claimant submit a dated and signed written notice. GN 03910.040 and GN 03940.003 require that the signatures on the notice of appointment and fee agreement be in pen-and-ink to provide a measure of protection of the claimant’s privacy and data integrity. ...
If the claimant’s signature on a notice of appointment (for example, Form SSA-1696) does not meet the standards listed in GN 03910.040 (e.g., signature appears to be electronic or a digitized image of a handwritten signature), follow the instructions below – ... 
Contact the claimant to confirm his or her signature, after verifying identity, and intent to sign following these steps: ...
Confirm that the claimant signed the appointment with intent to sign it using the following script:
  • “We have received an appointment form with your electronic signature and need to ask you a few simple questions to confirm you signed it. Did you sign this form?”
  • “And you understood that by electronically signing this form, you agreed [insert name of Appointed Representative on the SSA-1696] will now represent you on your claim with SSA, and [he/she] and [his/her] employees can obtain information about your claim from SSA?”...

May 21, 2020

75% Absentee Rate At Reopened IRS

     From the Washington Post (emphasis added):

The Internal Revenue Service had barely begun bringing its lowest-paid workers back to the office in late April when someone in the Philadelphia call center came down with a fever, forcing the third-floor staff to head home.

Within two days, an employee in the processing center in Kansas City, Mo., who routes paper checks for deposit was sick with coronavirus symptoms, too. Then the husband of a woman in accounts management in the Covington, Ky., office tested positive, leading managers to presume that she was infected.
The three service centers, among 10 campuses nationwide where the IRS is trying to reinstate 11,000 employees, had to partially close for a week for deep cleaning. ...
The tax behemoth that touches virtually every American has made the government’s most aggressive effort so far to recall its workforce. But like other federal agencies following President Trump’s order to reopen the country, the IRS is struggling to ensure the safety of its employees as it tries to chip away at a crushing backlog and serve the public. ...
As of Monday, about 3,000 customer-service and clerical workers had volunteered to return to the office, an absentee rate of almost 75 percent. ...

Three Listings Extended

     Social Security has extended without change the Listings for Low Birth Weight and Failure to Thrive, Endocrine Disorders, and Cancer (Malignant Neoplastic Diseases). Each of the Listings has an expiration date. They must be extended or modified by that date.

May 20, 2020

Some Tentative Musings About The Future For Benficiaries

     Alicia H. Munnell, the director of the Center for Retirement Research at Boston College, has penned a piece for Marketwatch on the effects of the Covid-19 pandemic on Social Security. She's not definite. It's not possible to be at this point. She suggests that even though there will be no near term effect upon Social Security's ability to pay benefits, the economic effects of Covid-19 may hasten the day that something will have to be done about the Social Security trust funds. She also believes it is possible there will be no cost of living adjustment in Social Security benefits this year because the economic crisis has stopped inflation. In the long run, Munnell thinks that there may be some effect upon future Social Security payments to those whose earnings are reduced or absent now due to Covid-19. Low income workers may be the ones most affected.

May 19, 2020

What A Mess

     Can Social Security start holding in person hearings prior to the release of a vaccine for Covid-19? Many disability claimants are immunocompromised because of medication they're taking. Even if everything else is reopening, it may be inadvisable for them to attend a hearing. And it's not just the claimants. Some of the Administrative Law Judges (ALJs) who hold the hearings are immunocompromised as are some of the attorneys, vocational experts and hearing reporters who attend the hearings. Many others are at additional risk from Covid-19 because of their age. I really want to get back to in person hearings but can they be held with reasonable safety for all the participants?

May 18, 2020

Still No Update To Fee Payments Stats

     I pointed out a few months ago that Social Security was late in posting updates on the amount of fees paid to attorneys and others representing claimants before the agency.
     They still haven't posted an update. The last one posted was for November 2019. I don't know why but it looks like a decision was made to stop posting the numbers. Is a report still being compiled internally?

May 17, 2020

New List Of Sanctioned Attorney And Non-Attorney Representatives

     The Social Security Administration has posted an updated list of attorney and non-attorney representatives who have been barred from representing claimants before the agency due to misconduct. It's a cumulative list that goes back to the late 1980s. Here are the names added in the last year. The date listed is the date the person was sanctioned.
  • Calder, Jarrett Skipper,  South Carolina, Attorney, 7/25/19
  • Hoegh, Thomas,  California, Attorney, 2/18/20
  • Isayan, Andranik California, Non-attorney, 8/2/19
  • Krout, Jr., Dale E., Florida Attorney, 6/10/19
  • Liles, Sean, Michigan, Attorney, 5/20/19
  • Melkonian, Lousine, California, Non-attorney, 7/1/19
  • Patrick, Megan Mariah, Misissippi, Attorney, 12/9/19
  • Pogosian, Ani, California, Non-attorney, 9/4/19
  • Smith Grayson,Christy, Kentucky, Attorney 12/9/19
     Almost half the list comes from the state of California. The three non-attorneys from California were all sanctioned around the same time and all have surnames of Armenian origin. I don't know what the story is there. I'm guessing it was a group thing.

May 16, 2020

NADE Newsletter

https://www.nade.org/wp-content/uploads/2020/05/2020-SPRING-EDITION.pdf
     From the Spring 2020 newsletter of the National Association of Disability Examiners (NADE), the voluntary organization of personnel who make disability determinations for Social Security at the initial and reconsideration levels, concerning a meeting with Grace Kim, Social Security's Deputy Commissioner of Operations and John Owen, the Associate Commissioner of the Office of Disability Determinations:
... The NADE board brought up an agenda item that was noticed in various regions. There have been problems seen where the DDS [Disability Determination Service] is contacted by an office claiming to be an appointed representative who filed the SSA-1696 [appointing an attorney or other person to represent a Social Security disability claimant] with the field office but it is not in the electronic file. Grace mentioned that this is a customer service issue and someone has been appointed to look into the issue. ...
     This is a big problem for people like me. We keep submitting  the 1696 form repeatedly and field offices do nothing with it. This leaves us incapable of representing the claimant before the agency. This problem has been around for years and it's been getting worse.
     I don't understand the process but, apparently, it's ridiculously difficult for field office personnel to enter the appointment of a representative in their computer system. I think most of those who represent claimants would prefer some system where we could enter the information directly. I don't see how imposing this work load on field office personnel adds any layer of protection for claimants or the system. If there's some issue with us abusing the system, it's not hard to find us or to take action against us.
     There is also material in the newsletter about how NADE members are coping with the changes brought about by Covid-19. I'm not going to reproduce any excerpts here but reading it might be a good idea for those who have had little contact with DDS personnel. There are a lot of unjustified negative attitudes about disability examiners. The system may be uncaring but the people aren't.

May 15, 2020

Arbitrator Finds Bad Faith Bargaining

     From Government Executive:
An independent arbitrator last week ruled that the Social Security Administration violated federal labor law by engaging in bad faith bargaining in its contract negotiations with a union representing administrative law judges who preside over Social Security disability cases. 
The ruling is a result of a grievance filed by the Association of Administrative Law Judges, which accused the agency of repeatedly denying the union’s requests for information while the parties prepared to negotiate a new contract. 
In its grievance, the union highlighted a number of instances when routine requests for data related to provisions in its collective bargaining agreement were delayed or denied. These requests included detailed disposition data for the agency’s administrative law judge corps, the estimated cost of training a new administrative law judge, the criteria by which the agency places ALJs under “close supervision” and data supporting the need for the agency’s demand for a seven-year contract term. 
In many of these cases, arbitrator Malcolm Pritzker found the agency’s denials did not meet the standard needed to justify withholding information. In one instance, he noted that although the agency claimed the union’s request regarding the proposed contract duration was “not related to collective bargaining,” officials eventually used the requested data as part of the agency's justification for the contract length before the Federal Service Impasses Panel. ...

May 14, 2020

"Policy changes at the SSA had slowed down any further expansion. That changed with the rapid spread of COVID-19"

     From a Northrop Grumman website:
Ordinarily, the Social Security Administration’s (SSA) headquarters and its more than 1,200 field offices across the country, are visited daily by thousands of citizens either in person, or by phone, seeking assistance with supplemental income and health and disability insurance. ...
Four years ago, a Northrop Grumman team began working with the SSA on a project to allow field office workers the opportunity to telework one or two days per week using a softphone, or having access to their phone lines through their computers.  ...
The project had rolled out to nearly half of the field office workforce, about 28,000 employees, however policy changes at the SSA had slowed down any further expansion.
That changed with the rapid spread of COVID-19.
With SSA facilities closing in response to the coronavirus pandemic, there was suddenly an immediate need for all 50,000+ SSA field office employees to have softphone access.
During a marathon multiday session beginning March 13, a team of 16 Northrop Grumman employees who support the SSA on the Information Technology Support Services Contract (ITSSC2), sorted through databases to identify the SSA employees who were not set up with softphones. More than 30,000 names were identified and given to the SSA’s Division of Integrated Telecommunications Management (DITM). Plans were immediately put in place to accelerate the softphone rollout. ...
Within five days, the project to identify names and provide softphone access was complete. ...
     What I've wondered about is how they came up with all the hardware so quickly. I'm pretty sure the "softphones" require hardware.

Might Need A Psych Evaluation

     From Your Content:
Officials announced the arrest of a 65-year-old Philadelphia man who forced entry into a federal building after authorities informed him it was closed due to coronavirus, Your Content has learned. What’s more, the crazed elderly man slapped the federal officers around, resulting in additional charges. ...
Authorities say Washington forced his way inside the SSA office at 701 East Chelten Avenue, after he was told by a FPS security officer that the office was closed to the public because of the coronavirus pandemic. ...

May 13, 2020

26 Months Of Pre-Trial Detention?

    From a press release:
After having served approximately 26 months in pretrial detention, Slaven Nedic, 28, of St. Louis, was sentenced to three years of probation.  Nedic appeared today before U.S. District Judge John A. Ross. 
According to court documents, on March 9, 2018, Nedic entered the lobby of the Crestwood office of the Social Security Administration and punched an armed guard in the face.  He also attempted to obtain control of the guard’s firearm during the ensuing physical confrontation.  An unarmed employee of the administrative agency heard the altercation, and came to the guard’s aid.  The two were able to restrain Nedic until local law enforcement officials arrived.  Nedic has been in custody since his arrest on March 9, 2018. ...

OHO Receipts Stabilizing As ALJ Corps Dwindles But Dispositions Still Far Outpace Receipts

     This was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations. Click on the image to view full size.

May 12, 2020

"The Injustices ... Are Both Many And Deep"

Carl Boatner
     From the Meridian Star:
Carl Boatner suffers from chronic obstructive pulmonary disease, coronary artery disease, two liver diseases, diabetes, obesity, hypertension, major depressive disorder and anxiety disorder.
The administrative law judge handling his appeal of the denial for disability payments determined those medical conditions “could reasonably be expected to cause” disabling symptoms.
And then he denied Boatner’s appeal.
He concluded the Carthage man’s severe medical conditions failed to “meet or medically equal the criteria for any listed impairment,” despite the fact they had once landed him in hospice, a care facility designed to give supportive care to people in the final phase of a terminal illness.
Boatner didn’t die before getting his benefits, but that wasn’t the case for Phillip E. Herring of Tupelo.
Vonda Peters of Tupelo received her brother’s third denial letter in the mail the day after his funeral in July 2019. “I don’t normally cuss, but I thought, what the f---?” Peters said.
U.S. District Judge Carlton Reeves, in a ruling that eventually awarded Boatner disability benefits, pointed to a pervasive attitude among many administrative law judges to view applicants with skepticism, adding Boatner’s judge issued denials at a rate 25 percent higher than the national average.
“The injustices of the disability payment system are both many and deep,” Reeves ruled. “Research suggests the majority of denials may be incorrect, and applicants struggling to manage their disabilities say such denials can amount to a ‘death sentence.’” ...
In a May 11, 2018, ruling, Reeves posed the question: Did the administrative law judge review the evidence properly?
Reeves’ response: No.
In his blistering opinion, he detailed where each component of the disability process had failed Boatner before he then awarded the veteran truck driver his long-denied benefits.
Reeves turned his focus on the state agency acting on the Social, Security Administration’s behalf — Disability Determination Services. ...
n his ruling, Reeves described the “waiting” Boatner had to do, saying, “Boatner has spent nearly a decade seeking disability payments from the Social Security Administration, filing his last application in 2014. Despite acknowledging the severity of Boatner’s medical conditions and his trips to death’s doorstep, the Administration has denied each of his four applications. These denials have been painful. One caused Boatner to walk out of his house, put a gun to his head, and threaten to kill himself.” ...
In his ruling, Reeves took aim at the disability examiners and the administrative law judge that handled Boatner’s case, noting the ALJ had resolved more than 600 cases in 2016. Reeves also said examiners are not prepared to handle as many cases as SSA asks them to handle.
Mississippi DDS’ 111 examiners processed approximately 64,000 cases last fiscal year, according to Patti Patterson, regional communications director for the Atlanta regional office of the Social Security Administration. Caseloads per examiner range from 65-125 cases, said Chris Howard, head of the Department of Rehabilitation Services. ...

May 11, 2020

When To Reopen Social Security Field Offices? Union Says Never

     From Bloomberg Law:
Telework at the Social Security Administration is boosting call center answer rates and otherwise improving customer service, the leader of a union that represents about 25,000 field office and call center workers says.
The agency should allow employees to continue teleworking to the maximum extent possible even after the Covid-19 pandemic abates, said Ralph de Juliis, president of Council 220 of the American Federation of Government Employees. The union is asking the agency to consider a plan that would allow the SSA to close most of its 1,300 field offices in the U.S. and save hundreds of millions of dollars on facility costs, he said. Though the agency has clashed with its unions in the past over telework, de Juliis said he’s hopeful agency officials are seeing the benefits now that most employees are working from home. 
“If they want to go that way, they have the union’s support,” he said. ...

May 10, 2020

This Just In: There Are Nutty People Working At The White House

     From the Washington Post:
... Senior White House economic officials also are exploring a proposal floated by two conservative scholars that would allow Americans to choose to receive checks of up to $5,000 in exchange for a delay of their Social Security benefits, according to three people familiar with the internal matter. That plan was written by Andrew Biggs of the right-leaning American Enterprise Institute and Joshua Rauh of the right-leaning Hoover Institution at Stanford University. ...

Another Question Or Two

     Some claimants whose cases have already been scheduled for a hearing by Social Security are declining the offer of a telephone hearing. That leaves a hole in the schedule of an Administrative Law Judge (ALJ). Are hearing offices trying to fit the cases of other claimants who haven't already been scheduled into those holes? I think the answer is generally no so my next question is, why not? 
     Let me spell out what may be obvious to many readers. I'm pointing out a possible flaw of centralized scheduling -- inflexibility.

May 9, 2020

A Pet Peeve: "It's Been A Minute"

     Here's a pet peeve of mine: Clients who answer "It's been a minute" when asked when some event occurred. What the hell does that mean? Where did this usage come from? I think I've only heard this in the last year or two. Is this usage national? 
     Unfortunately, lawyers usually need to know when things happened! We get annoyed when given answers like this. My instinct as a lawyer is that if my client seems evasive when answering a question, I've just hit upon a key problem.  Of course, "It's been a minute" isn't necessarily evasive but it sounds that way even when it isn't.

May 8, 2020

Man Sentenced For Threating SSA Employee

     From KHGI in Nebraska:
37- year-old John J. Scoggins of Omaha, Nebraska, was sentenced on Wednesday for making a threat to a Social Security Administration Official.
Scoggins was sentenced to five months of prison with an additional one month home detention, followed by a one-year term of supervised release.
According to United States Attorney Joe Kelly, on February 8, 2019, Scoggins contacted the Social Security Administration by telephone to confirm his address and other information related to his benefits.
During the conversation, Scoggins became belligerent with the Social Security Administration employee and threatened to physically harm her, according to officials.

May 7, 2020

Claimants Denied Disability Benefits Don't Go Back To Work; They Just Keep Trying To Get On Disabiltiy Benefits

     From the Social Security Bulletin, the agency's scholarly publication:
This article examines the experiences of Social Security Disability Insurance (DI) applicants aged 51 or older who were initially denied benefits because the disability examiner determined that they could perform either their past work or other work. ... We find that few older DI applicants who were denied benefits on this basis resumed work at a substantial level following denial. More commonly, applicants denied at this stage continued to pursue benefits, often successfully. Nearly two-thirds of initial work capacity-related denials were ultimately allowed DI benefits after appealing the initial decision or reapplying, and our estimates suggest that many of the rest claimed Old-Age and Survivors Insurance benefits before they reached full retirement age.
     Is it just me or does this suggest that it would be fairer to allow more of the disability claims filed by older people? Denying so many of the disability claims filed by older people creates misery and doesn't end up saving much money anyway. It makes work for me and other attorneys but that's certainly not a valid policy objective.
     Also, do you see evidence in this study to support increasing the age categories in the grid regulations? Should 55 or 57 be the new 50? Where is the proof that making this change would be a reasonable thing to do?

Video CEs

     Social Security has now issued new instructions to allow for video consultative examinations of disability claimants but only by psychiatrists and psychologists. 
     I'm not seeing any physical consultative examinations locally. Are any going on elsewhere? Is there a plan for this other than to hold cases indefinitely?

Lawsuit Over Wet Signature Requirement

     From a press release:
Timothy Cole is being treated for non-Hodgkin's lymphoma. His treatment leaves him immunocompromised and unable to work, and places him at additional risk during the COVID-19 pandemic. He needs to apply for disability benefits from the Social Security Administration (SSA) and the safest way to do so would be to fill out the application online at his home in Jacksonville, Florida. Because he is immunocompromised, leaving his home or interacting with paper mail is dangerous for Mr. Cole. But since he plans to hire an attorney to help with the complex application process, he cannot submit his application online because applicants using authorized representatives, like attorneys, must sign a paper copy of their application. This is true even though SSA has an online application and electronic signatures are accessible, secure, and federally approved.
Mr. Cole and three other plaintiffs, along with the National Federation of the Blind, are suing the Social Security Administration in federal court. They seek a court order requiring SSA to allow e-signatures on applications rather than requiring a "wet-ink" signature when the applicant is using an attorney or other authorized representative. SSA does not require wet-ink signatures for applications for some benefits when an authorized representative is not being used by the applicant. The suit contends that the requirement has always been discriminatory, but during the COVID-19 pandemic it also endangers the health and even the lives of applicants, as even SSA has recognized in quarantining its own mail for two days and shutting down its field offices. ...

May 6, 2020

11% Reduction In Backlog Of Pending Cases?

     From National Public Radio:
... Social Security field offices are closed. But the shutdown hasn't stopped the agency from processing claims for new benefits and appeals of benefit denials. And according to statistics that the SSA sent its workers, the agency has been doing so at a faster pace than before. ...
According to [Ralph] deJuliis [head of the union that represents most Social Security employees], the SSA has found that its backlog of pending cases has fallen by 11% since March 23, when the agency instituted wide-scale telework, and that calls from recipients are answered more quickly. ...
     Exactly which backlog of pending cases is it that's fallen by 11% since March 23? There are many backlogs at Social Security and they certainly haven't all dropped by 11% in less than a month and a half. I'd love to see those statistics that Social Security sent its employees.

May 5, 2020

Emergency Paid Leave Not Yet Available At SSA

     From Federal News Network:
Employees at the Social Security Administration say the agency hasn’t yet made emergency paid sick leave available to them, despite a congressionally-mandated implementation date and assurances from its payroll provider that its customers can, in fact, access these new benefits.
Under the Emergency Paid Sick Leave Act (EPSLA), all federal employees are eligible for up to 80 hours of emergency paid sick leave if they meet certain coronavirus-related circumstances. Congress included emergency paid sick leave in the Families First Coronavirus Response Act, which the president signed into law March 18.
Under the law, employees had access to the emergency paid sick leave starting April 1, and the benefits are available through Dec. 31, 2020.
But SSA employees and the unions that represent them say the agency hasn’t explained when they’ll be able to formally request and use emergency paid sick leave benefits under the new law. 
“We are working with our payroll provider on implementation of this new legislation and the associated leave balance,” an SSA spokesman wrote in an email to Federal News Network. “In the meantime, employees may continue to take personal leave or request advanced leave when necessary. Additionally, the leave from this legislation may be applied retroactively or used for future needs.” ...

May 4, 2020

A Question

     A question for those representing Social Security claimants or for employees of Social Security's Office of Hearings Operations (OHO): 
Claimant already has a hearing scheduled for July or August of this year but the hearing office is notified that the claimant declines a telephone hearing. Does OHO just cancel the hearing or leave it on the schedule hoping that by then they can do an in person hearing?

May 3, 2020

Senator Smith And Representative Craig Provide Leadership

     You may have wondered whether anyone in Congress is trying to do something to make sure that the dependents of Social Security beneficiaries receive economic stimulus payments. There are ongoing efforts. Senator Tina Smith (D-MN) and Representative Angie Craig (D-MN02) are leading the way. I wish there were more followers.

May 2, 2020

Rep Payees And Stimulus Payments

     When a person is receiving Social Security benefits through a representative payee their economic stimulus payment is being sent to the bank account of their representative payee because that’s the only bank account information Social Security has to give the Department of the Treasury. Social Security has now announced that it isn’t responsible for making sure the money is spent in the interests of the person it is intended for. Apparently, no agency is.

May 1, 2020

I Doubt This Is More Than A Localized Or Even An Individual Problem

     From a local television station that prefers to hide its call letters:
A local veteran, fighting for disability benefits, says he should have an answer in his case by now. In fact, he's already waited the three months they told him it would take. ... 
Alvie Roach says he has been working for just shy of seven years to file and appeal his disability claims. ...
He had his last hearing in early January, well before COVID-19 closures were put into place. His decision expected within three months. ...
But now were hitting almost four months of waiting, and still no word on that decision. Alvie says when he tried to investigate with the his lawyer's help, he found the judge actually filed a decision the day after his hearing. So, why won't anyone tell him what happened. ...
      I have not seen or heard of increased delays in getting out decisions after hearings so I expect this is at most a localized problem. Decision writing is the part of the process that's least likely to be delayed because of working at home. 
     I don't think the judge "filed" the decision the day after the hearing. More likely the Administrative Law Judge (ALJ) put it in a decision writing queue and there's some delay there. While the ALJ may have made up his or her mind, nothing is cast in stone until the final sign off. Sometimes, perhaps not often enough, a decision writer gets back to the ALJ basically to ask "Are you sure about this?" Sometimes the ALJ changes his or her mind. Some delay on this account isn't necessarily a bad thing. My experience is that a little unexpected delay is a bad sign. The claimant is likely to be denied. A lot of unexpected delay, on the other hand, is either a neutral sign or perhaps even a favorable sign. I hold my breath in these cases.
     Also, the seven years part is unusual. The most common explanation when that happens is that the claimant failed to appeal an unfavorable decision and then let years elapse before filing a new claim. There are very few cases which are aggressively pursued for seven years. I've had some but not many.

Apr 30, 2020

Fax Number For Medicare Part B Enrollment Released

     From the Social Security Administration:
Although our offices are closed to the public for in-person services, we are taking steps to serve you and your clients during the Coronavirus Disease (COVID-19) pandemic. Your clients who already have Medicare Part A (hospital insurance) but need to sign up for Medicare Part B (medical insurance) can now submit their completed Form CMS-40B, Application for Enrollment in Medicare Part B (Medical Insurance) to us by:
  • Fax at 1-833-914-2016; or
  • Mail to their local Social Security office. You can find the local office’s mailing address by using the Locate An Office by Zip button at www.ssa.gov/locator.
Your clients can get Form CMS-40B at www.cms.gov/Medicare/CMS-Forms/CMS-Forms/CMS-Forms-Items/CMS017339. ...
     I'm almot certain that this fax number is solely for Medicare Part B enrollments. Let's hope it's monitored regularly and that, if it's a paper fax, that they keep it loaded with paper.  Social Security needs to switch to e-faxes. That's a change that the rest of the world has made or is making.

National Taxpayer Advocate On Stimulus Payments To Dependent Children

     The National Taxpayer Advocate (NTA) is part of the IRS. The NTA's blog is offering a long explanation for why the Department of the Treasury is only offering a limited window of time for Social Security and SSI recipients to file "tax returns" so that their children can receive economic stimulus payments. The whole thing is based upon the ridiculous premise that all these payments must be sent out in one big batch. The possibility of sending out a big batch now and then sending out smaller batches of payments later as people make the requisite filings seems to be beyond the ken of anyone at IRS. Perhaps more important, like the rest of the IRS, the NTA can't seem to comprehend that the Social Security Administration already has information on the dependents of those receiving Title II Social Security benefits and that information could be used to make payments to the parents of those children.
     At least, the NTA is saying that maybe something should be done about this situation although it makes conflicting recommendations that either Congress do something or the IRS do something. Maybe the IRS should do something and if they don't, maybe the Congress should tell them to do something.
     If there are further economic stimulus payments to be made, I'm not eager for the Social Security Administration to make them but it's clear to me that having the IRS do it was a terrible idea. They're out of their depth.

Medicare Part B Problems

     From the Associated Press:
At greater risk from COVID-19, some seniors now face added anxiety due to delays obtaining Medicare coverage.
Advocates for older people say the main problem involves certain applications for Medicare's "Part B" coverage for outpatient care. It stems from the closure of local Social Security offices in the coronavirus pandemic. ...
Social Security handles eligibility determinations for Medicare, and while many issues can still be resolved online, some require personal attention. That can now entail hold times of 90 minutes or more to reach Social Security on its national 800 number, according to the agency's website. ...
Fred Riccardi, president of the advocacy group Medicare Rights Center, said an already cumbersome process has been exacerbated by the pandemic shutdown, raising the risk that some seniors will fall into a coverage gap or end up owing penalties. ...
His organization is among groups asking Congress to hold seniors harmless from Medicare application problems during the coronavirus emergency. It's unclear how many are affected.
Social Security declined several interview requests and instead sent The Associated Press written responses to questions. The agency said it has seen an increase in requests for Part B enrollment because of older workers losing job-based coverage.
Social Security said it worked with the Centers for Medicare and Medicaid Services to waive certain signature requirements for Part B forms during the pandemic and has set up a dedicated fax number to receive applications.
Social Security gets credit for trying, said Leslie Fried of the National Council on Aging, but that "I don't know anyone who has a fax machine anymore." ...
Social Security said the pandemic did lead lead to much longer telephone holds, but its latest weekly average was down to 45 minutes, depending on when a person calls and whether others are trying at the same time. Agency employees have been able to continue to serve the public by teleworking. ...
     What's that "dedicated fax number to receive applications"? That certainly hasn't been publicized. Applications for what? Just Part B? Is that national or local? Don't they still need "wet signatures"?
     Second, Leslie Fried doesn't know anyone who has a fax machine anymore? I don't know what to say in response to that other than LOL!

Apr 29, 2020

SSAB Urges Stimulus Payment Sanity

     From a press release issued yesterday by the Social Security Advisory Board:
Today, the Social Security Advisory Board (“Board”) wrote to the Commissioner of Social Security about the short turn-around time from announcement to deadline for families to complete the online form to receive the $500 relief payments for eligible dependents under the Coronavirus Aid, Relief, and Economic Security Act:
  • The April 22, 2020 deadline for Social Security beneficiaries was only announced on April 20.
  • The May 5, 2020 deadline for Supplemental Security Income (SSI) recipients was announced on April 24.
The Board’s letter urges the Commissioner to continue his work with Treasury to seek elimination of the filing deadlines for Social Security beneficiaries and SSI recipients. ...
     I guess they feel something might yet be done. I hope so but my impression is that the people in charge are deliberately doing the least they can do. It seems to have gone beyond simple incompetence.
     I don't understand why they're writing the Commissioner of Social Security. The problem isn't at Social Security. It's at the Department of the Treasury. Write Treasury Secretary Steve Mnuchin, pictured above with his wife, Louise Linton.

Apr 28, 2020

Official Notice On Telephone Hearings Through August

     I received this e-mail message from Social Security today:

SSA Attorneys and Representatives:

We would like to inform you that we are scheduling telephonic hearings only through the month of August due to COVID-19 related concerns.  Furthermore, our schedulers will now need confirmation first if a claimant (or their representative acting on his/her behalf) voluntarily accepts a telephone hearing before scheduling and releasing any notice of hearing for the months of July and August. 

For this reason, we highly recommend that representatives check their ERE status report for any cases currently scheduled in July, as well as cases in “ready to schedule” status, and begin confirming as soon as possible with your claimants whether they voluntarily accept a telephonic hearing.  Please know that our schedulers are currently contacting your offices primarily by telephone in order to confirm whether the claimant voluntarily accepts a telephonic hearing and to schedule the cases for hearing.  Therefore, knowing this information beforehand will assist with a more expeditious and efficient scheduling experience when we contact your office. At the bottom of this email are ERE status report instructions for any firms that are new on our mailing list.  We also have a representative ERE/ARS guide that we can furnish upon request. 

Likewise, our schedulers will also need confirmation if your claimant decides instead they decline a telephonic hearing so that we may proceed with postponing their case if it was previously scheduled for July, and/or refrain from scheduling their case for August, or until in-person hearings resume.

In the alternative, we are also accepting “blanket” declinations or acceptances from SSA attorneys and representatives, should this be an option you voluntarily wish to consider. 

We are also working on alternative ways of communicating and submitting information for these purposes.  As we receive additional scheduling updates that affect Georgia and North Carolina offices, we will forward them to the representative community. 

Pease (sic) note that our unit was under a “freeze” from all scheduling activities until recently.  Accordingly, we are still working on updating and responding to emails previously sent to our representative box.  Furthermore, please be advised that our unit is only handling confirming telephonic hearings for cases previously scheduled in July and/or “ready to schedule” cases that we can potentially schedule for the August docket.   All matters for cases scheduled from April through June are being handled by the local hearing office at this time. ...