Fichtner Nomination To SSAB Advances

     The Senate Finance Committee has scheduled a hearing for February 5 on three nominations. One of them is the nomination of Jason J. Fichtner to be a member of the Social Security Advisory Board (SSAB).

Rep Payee Fraud In Washington State

     From a press release:

A Kitsap County [WA] man who ran a business serving as a financial guardian for elderly or disabled clients pleaded guilty today in U.S. District Court in Tacoma to Social Security Fraud – Representative Payee Fraud. WAYNE JEROME HOUSTON, 61, of Port Ludlow, Washington owned and operated Cross Point Services LLC, a guardianship organization for disabled and vulnerable adults.  ...

According to the plea agreement, HOUSTON and his company were responsible for managing the financial affairs of 15-20 clients a month.  HOUSTON had access to the clients’ bank accounts so he could pay rent, utilities and other bills for them.  Social Security benefits were paid into some of the accounts, for at least 13 clients who required a representative payee to manage their benefits.  HOUSTON was the representative payee for at least 13 disabled clients.  Beginning in 2010, HOUSTON used his position as guardian to write checks from the victim accounts to himself, to Cross Point Services, or to cash, and used ATMs to withdraw money from client accounts and used it for his own expenses.  HOUSTON targeted clients who had significant income or resources so that the theft was less likely to be detected.

The amount stolen is still under investigation but is between $150,000 and $280,941.   Of that, approximately $83,000 was Social Security Administration benefit funds. ...

Big HITECH Setback

     An e-mail message from the Department of Health and Human Services (HHS) Civil Rights Division listserver:

On January 25, 2013, HHS published a final rule entitled “Modifications to the HIPAA Privacy, Security, and Enforcement Rules Under the Health Information Technology for Economic and Clinical Health Act, and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules.”  (2013 Omnibus Rule).  A portion of that rule was challenged in federal court, specifically provisions within 45 C.F.R. §164.524, that cover an individual’s access to protected health information.  On January 23, 2020, a federal court vacated the “third-party directive” within the individual right of access “insofar as it expands the HITECH Act’s third-party directive beyond requests for a copy of an electronic health record with respect to [protected health information] of an individual  . . . in an electronic format.” Additionally, the fee limitation set forth at 45 C.F.R. § 164.524(c)(4) will apply only to an individual’s request for access to their own records, and does not apply to an individual’s request to transmit records to a third party.

The right of individuals to access their own records and the fee limitations that apply when exercising this right are undisturbed and remain in effect.  OCR will continue to enforce the right of access provisions in 45 C.F.R. § 164.524 that are not restricted by the court order.  A copy of the court order in Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020), may be found at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0040-51.

     This means that Ciox and other similar companies are now bound only by state laws limiting how much they can charge. It's nearly hand to hand combat against these ripoff artists.

Lawsuit On Impostor Phone Calls

     From a press release (emphasis added):

The Department of Justice filed civil actions for temporary restraining orders today in two landmark cases against five companies and three individuals allegedly responsible for carrying hundreds of millions of fraudulent robocalls to American consumers, the Department of Justice announced.  The Department of Justice alleges that the companies were warned numerous times that they were carrying fraudulent robocalls — including government- and business-imposter calls — and yet continued to carry those calls and facilitate foreign-based fraud schemes targeting Americans.  The calls, most of which originated in India, led to massive financial losses to elderly and vulnerable victims across the nation. ...

The two cases announced today contain similar allegations.  The defendants in one case are Ecommerce National LLC d/b/a TollFreeDeals.com; SIP Retail d/b/a sipretail.com; and their owner/operators, Nicholas Palumbo, 38, and Natasha Palumbo, 33, of Scottsdale, Arizona.  The defendants in the other case include Global Voicecom Inc., Global Telecommunication Services Inc., KAT Telecom Inc., aka IP Dish, and their owner/operator, Jon Kahen, 45, of Great Neck, New York.  In each case, the Department of Justice sought an order immediately halting the defendants’ transmission of unlawful robocall traffic.  A federal court has entered a temporary restraining order against the Global Voicecom defendants. ...

In the cases announced today, the United States alleges that the defendants operated voice over internet protocol (VoIP) carriers, which use an internet connection rather than traditional copper phone lines to carry telephone calls.  Numerous foreign-based criminal organizations are alleged to have used the defendants’ VoIP carrier services to pass fraudulent government- and business-imposter fraud robocalls to American victims.  The complaints filed in the cases specifically allege that defendants served as “gateway carriers,” making them the entry point for foreign-initiated calls into the U.S. telecommunications system.  The defendants carried astronomical numbers of robocalls.  For example, the complaint against the owners/operators of Ecommerce National d/b/a TollFreeDeals.com alleges that the defendants carried 720 million calls during a sample 23-day period, and that more than 425 million of those calls lasted less than one second, indicating that they were robocalls.  The complaint further alleges that many of the 720 million calls were fraudulent and used spoofed (i.e., fake) caller ID numbers.  The calls facilitated by the defendants falsely threatened victims with a variety of catastrophic government actions, including termination of social security benefits, imminent arrest for alleged tax fraud and deportation for supposed failure to fill out immigration forms correctly. ...

     So, why aren't they indicting the U.S. residents in this case? It makes you wonder about the strength of the evidence.

Opposition To CDR Speedup Spreads

     From Newsweek:

More than 140 lawmakers in the House and Senate have signed open letters hitting out at a "harmful and unjustified" Trump administration proposal that could see thousands of Americans lose their disability benefits.

Senators Bernie Sanders and Elizabeth Warren were among those who put their names to the letters calling on the administration to scrap its proposed rule change, which would increase the frequency of disability reviews faced by some benefits recipients if it comes into effect.

The Senate letter was signed by a total of 41 senators. Newsweek understands that more than 100 signatures have been collected on the House letter so far, with more to come. ...

Further Telework Cuts

     From Government Executive:

The Social Security Administration on Monday informed employees of its various subcomponents that it will move forward with new cuts to telework policies, a move quickly decried by union officials who said they were left out of the notification process. ...

Rich Couture, who serves both as a spokesman for the American Federation of Government Employees’ general committee representing Social Security employees and president of AFGE Council 215, which represents workers at the agency’s hearings and appeals offices, said management similarly rejected his own efforts to learn about the changes, and that he spent much of his afternoon in meetings and working with fellow union representatives to cobble together a list of the reforms across the agency.

“I’ve got to tell you, the depth of disrespect and disregard for AFGE with the rollout of this announcement, where the press found out before the union and the union found out at the last minute through a bare-bones notice . . . this basically illustrates to me that there’s no relationship anymore between SSA and AFGE,” Couture said. “There was no advance notice to the local reps that these meetings were to be held, and we have a statutory right to advance notice. This is part of a consistent trend along those lines that this was entirely deliberate.”

According to reports from various union officials, the telework cuts vary by agency subcomponent. In the most drastic instance, legal assistants who do pre- and post-hearing case development work for administrative law judges will only be able to work remotely one day per two-week pay period, down from the current policy allowing employees to telework up to three days per week.

Workers in the Office of Quality Review, which has had telework for nearly 20 years, will all see their existing telework agreements slashed by one day per week. And although there is no policy change for attorneys who do decision-writing for administrative law judges in the Office of Hearings and Appeals, each employee with an existing telework agreement must file paperwork to apply for a new one by February 7 or lose the ability to work remotely altogether. ...

Social Security’s actions appear to defy the spirit of a congressional mandate enacted last month as part of the fiscal 2020 appropriations bills, which instructed the agency to come up with a plan to restore telework to employees in its operations divisions within 60 days. ...

Union Asks "Where Is Saul?"

     Below are two graphics that the American Federation of Government Employees (AFGE), a labor union which represents most Social Security employees, sent to its members recently. Apparently, the milk carton graphic was sent 25 days after the "Where is Saul" graphic.

     I can guess that Social Security has some online system that employees use to sign in and out and that any agency employees can check to see if any other agency employee is on duty. If that's the case, I don't know why Saul wouldn't use it. It seems quite unlikely that he was away from his office for more than two months. I hope that's not the case.

Union Files Grievance

     The labor union that represents most Social Security employees has filed a grievance against the agency based upon the alleged failure to provide physical security at agency offices. The complaint concerns the unescorted presence of contractors and cleaners and the like. This may or may not be a threat to the security of Social Security data but I don’t see how it is a threat to union members.

Saul To Testify Before Congressional Committee

     Andrew Saul, Commissioner of Social Security will make his first appearance before a Congressional committee as Commissioner on January 29 at 9:30. It will be before the Senate Special Committee on Aging and the hearing will concern "Social Security Impersonation Scam." 

     Will the House Social Security Subcommittee schedule even one oversight hearing in this Congress?

Social Security Loses In CA3 On Issue Of When Lucia Argument Had To Have Been Raised

     After the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as then appointed were unconstitutional, there was the inevitable issue of which Social Security claimants would get new hearings. The Social Security Administration argued that the issue had to have been raised before the Administrative Law Judge or at least before the Appeals Council. They have now given up on the argument that Lucia had to have been raised before the ALJ and have remanded all of the cases where the Lucia issue was raised at least before the Appeals Council. The issue of whether the issue had to have been raised at least before the Appeals Council is being litigated in the federal courts. 

     We have our first Court of Appeals opinions in one of the post-Lucia Social Security cases, Cirko v. Commissioner, a Third Circuit case. Social Security lost. The Court held that it did not matter that the Lucia issue wasn't raised until after the matter reached the United States District Court.

     Social Security is still litigating this issue before other Courts of Appeals. It's possible that the agency will win elsewhere. If that happens, the issue will have to be decided by the Supreme Court.

Why Not Just Ban The Testimony Outright?

     From the summary of a change to Social Security's HALLEX manual:

We clarified that an ALJ must obtain concurrence from the Hearing Office Chief Administrative Law Judge (HOCALJ), Regional Chief Administrative Law Judge (RCALJ), and Regional Commissioner (RC) of the appropriate region to request the testimony of a particular FO [Field Office] employee at an appearance. We removed the phrase stating that the RCALJ may waive notification of the request because RCALJ's concurrence is now required.

     How might this come up? Let's say it's the testimony of a claimant that a particular field office employee, that he can identify by name, told him that he could not file a claim for Social Security benefits and that advice was incorrect and cost the claimant money. The Social Security Act would allow backdating of a claim in this circumstance. Wouldn't the field office employee's testimony be relevant?

Where Are We This Afternoon?

     Social Security's ERE system which attorneys like me use to obtain access to the agency's records on our clients is working. However, there are persistent reports that there are major problem across computer systems at Social Security preventing many, perhaps most, agency employees from fully doing their jobs. I'm sure they're concentrating on what can be done without using the IT systems but I'm sure they can only do so much offline. Maybe something this extensive has happened previously but it certainly hasn't happened lately. This is a big deal and Social Security needs to get out a press release.

Where Are We This Morning?

     I had posted yesterday afternoon that ERE, the online system that I and other attorneys use to access the files that the Social Security Administration keeps on our clients, was down and had been down the entire day. Comments made in response to that post indicated that many systems used by Social Security employees were also down. 

    So, where are we this morning? I got into ERE without difficulty a few minutes ago but there were comments, apparently from Social Security employees even this morning saying that many of their systems are still down. Did I just happen to access ERE just as it came back up? Did I just happen to get into a system that's mostly non-functional? What about the systems that Social Security employees use? Are they back up?

     I think what has happened or may still be happening is a big enough deal that Social Security ought to send out a press release.

ERE Down

     Social Security's ERE system that allows those representing claimants at hearings before the agency to access their clients' files is down. It has been down most if not all of today. Social Security has the ability to e-mail those who have access to the system to let them know that there's a problem but has not done so.

GAO Report Critical Of Social Security's Treatment Of Disability Claims Complicated By Substance Abuse

     From a recent report by the Government Accountability Office (GAO):

... This report examines (1) what is known about the relationship between trends in prescription opioids and DI claims, and (2) how SSA [Social Security Administratino] considers potential prescription opioid misuse in its DI [Disability Insurance] eligibility decisions. GAO analyzed county-level data on opioid prescriptions and DI claims from 2006 through 2017; interviewed program staff involved in DI eligibility decisions in Alabama, Kentucky, and West Virginia, selected because of their high rates of opioid prescriptions and percentage of the adult population on DI; and reviewed case files for DI beneficiaries identified by the Centers for Medicare & Medicaid Services as being at risk for prescription opioid misuse or abuse. ... 

The numbers of opioid prescriptions and claims for the Social Security Administration’s (SSA) Disability Insurance (DI) program have each declined nationally in recent years, but rates vary widely across the country. National trends show both peaking between 2010 and 2014 and then declining. GAO’s analysis shows counties with the highest rates of both were concentrated in the Southeast (see figure). After accounting for economic, demographic, and other factors, GAO found that counties with higher rates of opioid prescriptions tended to have higher rates of DI claims from 2010 through 2017. These rates were also correlated with other factors. For example, counties with higher rates of each tended to have higher poverty rates. However, GAO was unable to determine whether there is a causal relationship between rates of opioid prescriptions and DI claims or other factors, given readily available data.

Program staff are required to evaluate and document substance use disorders (including opioids not taken as prescribed) when making certain DI eligibility decisions. Specifically, staff are required to evaluate potential substance use disorders for certain DI claims and deny benefits, for example, if the claimant would not be considered disabled if they stopped using drugs or alcohol. In addition, staff are generally required to document the rationale for their decision so that another reviewer can understand how they made the decision. However,staff in five of the six offices GAO visited in three states were confused about when to evaluate substance use disorders, and nine of 15 case files that GAO reviewed in which an evaluation was conducted did not have a documented rationale. SSA officials acknowledged the need to clarify policies on when to evaluate substance use disorders, and that a poorly documented rationale could lead to reversals or remands of decisions. Without ensuring that SSA’s policies are understood and that staff document their rationale, the agency may expend resources re-working cases and, in turn, delay benefits to individuals eligible for assistance.  ...

     I imagine that Social Security will find a simple way of responding to GAO's findings. They'll just make the current rule -- when in doubt, deny -- even more explicit. They certainly won't do anything to help people with dual diagnoses -- substance abuse plus another physical or mental impairment. If anything, the GAO report seems only to be telling Social Security to find a better way of checking off boxes rather than encouraging them to take a serious look at the problem.
     The GAO itself could have taken a more in-depth look at the problem. They fail to mention that the dual diagnosis issue primary concerns one psychiatric illness -- bipolar disorder -- which has a dramatic overlap with substance abuse strongly suggesting a genetic link. It's literally impossible to tease out what's caused by bipolar disorder from what's caused by substance abuse because it's all one disease entity. The GAO investigators also failed to understand that the Social Security Administration itself changed its policies in 2013 to put the burden on the claimant to prove a negative -- that their substance abuse isn't material to the determination of disability. If you're not a lawyer, let me clue you in on something well understood by lawyers. It's impossible to prove a negative. For instance, I can tell you that I've never used crack cocaine -- I haven't -- but how can I prove it? That's the whole point of Social Security's current policies. Put an impossible burden on the claimants and then deny them. The GAO report says in a footnote that Social Security told them that Social Security Ruling 13-2p, the policy change I mentioned earlier, really didn't change anything. That's seriously revisionist history. The policy in effect before the ruling was 180 degrees different. It's like this every time Social Security changes its policies. The agency insists that it hasn't changed its policies when it's obvious that it has.

Inauguration Day 2021 Is A Year From Today

New CCD Positions

     The Coalition for Citizens with Disabilities (CCD), the major umbrella group of organizations that help the disabled, has issued three recent statements concerning Social Security. CCD opposes the plan to increase the frequency and alter the targeting of continuing disability reviews. CCD supports expanding Supplemental Security Income (SSI) to the U.S. territories of Puerto Rico, Virgin Islands, Guam and Samoa. (By the way, does anyone know the status of litigation on this issue?) CCD supports ending the five month waiting period for Disability Insurance Benefits.

Final 2019 Trust Fund Numbers

     Social Security has posted the final calendar year 2019 numbers for the Social Security Disability Insurance Trust Fund. The fund declined by about $4 billion last year. As of the end of the year, the fund balance was $93 billion. The Old Age and Survivors Insurance Trust Fund gained $6.4 billion in the last calendar year. Its balance stands at $2.8 trillion.

Social Security Wants To Study Attorney Fee Alternatives

     From a contracting notice posted by the Social Security Administration:

... Disability claimants who have an Appointed Representative (AR) have an increased likelihood of award at the hearings level, but not earlier in the disability adjudication process.  Experts have suggested that the current attorney fee structure, under which representatives receive 25 percent of claimants’ back benefits up to $6,000, encourages representatives to work with claimants later in the disability adjudication process. 

In April of 2019, SSA convened a Technical Expert Panel (TEP) to discuss a potential demonstration that would alter the incentives for representatives to work with applicants at the reconsideration level of adjudication.  The TEP discussed alternatives to the current attorney fee structure as well as opportunities to improve representatives’ access to case information and documentation.  The TEP provided SSA with recommendations to test as part of a future demonstration to increase representation at the reconsideration level and improve the quality of that representation to help SSA arrive at the correct outcome as soon as possible.

SSA is considering a few options for alternative fee structures. One, a minimum fee, that would ensure that ARs receive at least a certain amount for all awarded claims, or 25 percent of back benefits, whichever is greater, up to $6,000. This minimum amount would likely be around $2,500. We consider this level because it is close to the current average fee of $2,900. In theory, this guaranteed minimum could induce ARs to take some claims that they otherwise would not have taken, while minimizing the risk of paying extra for claims that the ARs would have taken under current policy.

A second option is a flat fee for awarded claims. This flat fee would likely be around $3,000, for the same reasons mentioned earlier. In this case, the flat fee is slightly above the average payment to increase representation. 

The AR Demonstration (ARD) will test at least one alternative fee structure and will evaluate the impact and quality of representation at the reconsideration level of adjudication and other outcomes. ...

     See also this study that was completed last summer.
     The interesting thing is that raising the fee cap isn't even being considered. I think that would help more claimants get representation than a minimum fee. The problem isn't so much that attorneys are scared of getting a low fee as it is that attorneys are scared of getting no fee. Raise the minimum fee and the risk-reward ratio is altered so that we take on more iffy cases. I think this proposal would only affect my behavior in cases such as a claimant who is already receiving early retirement benefits and that's not that much left to get for them if disability benefits are approved. It would not affect my behavior in cases at the initial and reconsideration levels since I already take on those cases. It might affect the behavior of others who don't take on cases at the initial and reconsideration levels but I think most already are taking on cases at the initial and reconsideration levels. Right now the group that has the most difficulty obtaining representation are those under the age of 50. This proposal would do nothing for them. The flat rate fee would be especially bad since it would make the risk-reward ratio even worse. We would still have the same risk but the reward for a win would be less. It's the risk-reward ratio that Social Security needs to be looking at.