From a final rule that Social Security is publishing tomorrow:
This final rule explains our process for issuing guidance documents under Executive Order (E.O.) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” We will follow this process when we issue future guidance documents ...
The documents that we issue include Program Operations Manual System (POMS) instructions; the Hearings, Appeals and Litigation Law (HALLEX) manual; Social Security Rulings (SSR); and Acquiescence Rulings. Most of the documents that we issue do not qualify as guidance documents under E.O. 13891; however, some may. We will use the process in this final rule for the documents we issue, as appropriate.
As required by E.O. 13891, this final rule includes:
- A requirement that each guidance document clearly state that it does not bind the public, except as authorized by law or as incorporated into a contract.
- Procedures for the public to petition for withdrawal or modification of a particular guidance document, including a designation of the official to whom the public should direct petitions.
- Specific requirements for a guidance document that qualifies as “significant,” unless an exemption applies. ...
I don't know what this means. I doubt that Social Security knows either. In fact, I doubt that anyone does. It seems mostly intended to gum up the works at other purely regulatory agencies like the EPA. I expect that Social Security will decide that nothing or almost nothing they issue is really a "Guidance Document." This policy will probably be rescinded if Biden is elected President.
By the way, note that Social Security didn't even include Emergency Messages on the list of possible "Guidance Documents." At the moment, Social Security is keeping almost all of the Emergency Messages a secret even though they're more likely to contain guidance than anything else they issue.
Sounds like 2 changes. SSA will have to come up with some sort of process allowing the public to petition to modify POMS or HALLEX. Also, SSA will have to publish all guidance documents, not just SSRs, ARs, POMS, and HALLEX. I suspect there will be exceptions to that, but maybe we will actually get a full, accessible, list of AMs and EMs.
ReplyDeleteAs stated in the EO the intent is to more clearly distinguish regulations that were passed pursuant to a lawful legislative delegation through appropriate notice and comment, and therefore have the force of law, from mere guidance that does not. For most trained lawyers, this has never been a real problem. But there have always been some poorly trained lawyers who couldn't tell the difference, or were too lazy to learn the law and do the necessary research. And the number falling into this later category have increased alongside the proliferation of junk law schools and increased enrollment.
ReplyDeleteThat said, the weasely "except as authorized by law" essentially defeats any usefulness the EO might've otherwise had. But is anyone really surprised given the source?
Good grief, folks. Take off the tin-foil hats. You can view all of the emergency messages right here:
ReplyDeletehttps://secure.ssa.gov/poms.nsf/Home?readform
Just click on the link that says "emergency messages."
Nothing earth shattering here. That is why representatives have been told over and over again not to cite the POMS in Non-Medical Reconsideration decisions , but rather the CFR or The Act.
ReplyDelete@1:22
ReplyDelete11:59 here. I'm not wearing a tinfoil hat. As to administrative messages, those are not published anywhere to my knowledge. They can be useful, for example, administrative message 13066 and it's revised counterpart AM-13066-REV explain how GAF scores are addressed. It would be useful to have access to them. And I'm not aware why such information should be kept secret.
As to emergency messages, I'm aware of the link provided, and also aware that pretty often, emergency messages are cited which are not contained in the link, which suggests some additional messages are available to ALJs that are not contained in the link. That's annoying at best.
Obviously in most claims, these issues don't come up, but I'd like access to them in case they do.
anon@1:22pm,
ReplyDeleteThe link you provided for EMs is worthless, as the agency only rarely actually publishes anything there.
For context, look at the published EM-20022. The naming convention is YY###, so there were at least 21 other EMs issued internally to the agency in 2020 before this one (not including revisions of prior year EMs). Most of them aren't published on the website. There have been multiple EMs posted internally since EM-20022, they aren't posted either.
The simple fact of the matter is that some members of upper SSA management have a delusion that keeping "secret messages" makes them more James Bond-ish than Walter Mitty-ish. It doesn't.
An EM I am very familiar with has to do with possible fraud and what steps, questions to ask, etc to resolve it. Do you want that published so criminals can find ways around the system?
ReplyDelete@1:13
ReplyDeleteI expect publishing all guidance documents doesn't mean those guidance documents could not be redacted, where appropriate. And acknowledging the existence of such documents doesn't threaten impairing the ability to investigate fraud.
anon@1:13am,
ReplyDelete4:02pm here.
No, I don't expect them to post anything related to fraud. Technology has already allowed the thieving scum to have an easy enough time of it.
But they should post anything that is being relied on by agency employees to make decisions on claims that is not fraud related. Separate out the systems and methods stuff (which the agency has categorically never been willing to publish anyway), and post the rest.
Most of the anti-fraud stuff they post anyway is just a band-aide anyway. The rush to put everything online combined with the use of debit cards has created a situation where fraud can no longer be prevented without changes in the law.