Jul 31, 2021

Opioid Use Among Disability Applicants

      From Trends in Opioid Use Among Social Security Disability Insurance Applicants by April Yanyuan Wu, Denise Hoffman, and Paul O’Leary:

... [W]e examined the prevalence of reported opioid use in a 30 percent random sample of initial-level SSDI applications stored in the Social Security Administration’s Structured Data Repository (SDR) from 2007 through 2017, considering differences by demographic and other factors. ...

Over the 11-year analysis period, more than 30 percent of SSDI applicants reported using one or more opioids. This is higher than the rate of opioid use in the general population (29 versus 19 percent in 2016). ...

Reported opioid use varied by age and demographic characteristics. SSDI applicants ages 4049 were the most likely age group to report opioid use; women were 3-4 percentage points more likely to report opioid use than men; and people with some college were the most likely education group to report opioid use.  

Reported opioid use is also correlated with application type. SSDI-only applicants who reported opioid use were 4-6 percentage points more likely to report opioid use than concurrent SSDI and SSI applicants.

Reported opioid use varied greatly between geographic areas. Applicants from Rhode Island, Massachusetts, and Washington, DC, reported lower-than-average rates of opioid use in 2007 and consistently throughout the analysis period. Conversely, applicants from Delaware, Nevada, and Michigan consistently reported the highest rates of opioid use.  ...

     Even without scientific proof, I think I can say without fear of contradiction that there are other medications used at a higher rate among disability applicants than among the population in general, such as medications for hypertension and diabetes, NSAIDS, muscle relaxants, diuretics, anticoagulants, anticonvulsants, antidepressants, antipsychotics, etc. My point is that we should expect a significant amount of opioid usage among disability applicants. Many of them are in pain and need opioid medications to help them cope. Opioids can be abused but they have important legitimate uses.

Jul 30, 2021

AFGE Trying To Straddle Fence On Vaccine Mandate

      In an interview with NPR, the head of the largest employee union at Social Security doesn't seem opposed to President Biden's announcement that federal employees must be vaccinated or be tested regularly for Covid-19. He just seems to want something in return for it. I think he's going to be disappointed on that score. 

     I'm sure de Juliis has many union members who hate the idea of being vaccinated. I'm pretty sure he's got a lot more union members who feel strongly otherwise. The tide is turning quite rapidly on opponents of vaccination. About two-thirds of the country is at least partially vaccinated and we're increasingly frustrated with Covid limitations that are only necessary because of the fools who won't get vaccinated. The unvaccinated aren't just a danger to themselves. They increase the risk of breakthrough infection among those who are vaccinated.

Click on image to view full size

What A Horror Show -- The Most Damning OIG Report I've Ever Seen

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

... We have initiated two reviews to assess SSA’s management of mail and controls over its processing of Social Security card applications during the COVID-19 pandemic....

 Key Concerns Related to the Agency’s Policies and Oversight of Mail

  • SSA has no performance metrics and does not maintain management information on the volume of incoming, outgoing, or pending mail. Consequently, the Agency does not have sufficient information to enable it to adjust staffing levels to ensure mail is processed timely.

  • SSA lacks comprehensive policies and procedures to track and return original documents—including driver’s licenses, birth certificates, passports, and naturalization documents—that customers provide as proof of eligibility for benefits or a Social Security number card.

Effects of Inadequate Internal Controls over Mail Processing

  • Some offices had backlogs of workloads that involved original documents. For example, one PSC [Program Service Centers, where benefits under Title II of the Social Security Act are processed]had more than 9,000 unprocessed original documents it had received as early as November 2020. We found that some of these documents were necessary to establish individuals’ eligibility for benefit payments.  
  • Some offices had backlogs of unprocessed applications for new or replacement Social Security cards. For example, one field office had 677 unprocessed applications dated as early as July 2020. We also observed a Social Security card center that had over 9,000 unprocessed applications dated as early as May 2021. As a result, individuals have yet to receive their original documents or Social Security number card. 
  • Some locations had backlogs of remittances or un-negotiated benefit checks. For example, one PSC had 247 unprocessed remittances or un-negotiated checks dated as far back as November 2019. Financial institutions are not obligated to cash uncertified checks that are more than six months old, which leaves the Agency at risk of not being able to collect the remittance check funds. 
  • There were large quantities of undeliverable mail at some PSCs. For example, at one PSC, auditors noted more than 200,000 pieces of returned mail, some of which were over one year old. Some of these pieces may require action, such as suspending or terminating beneficiaries’ payments.  
  • While all SSA facilities were locked, some offices stored original documents in unsecure locations, such as desks and bins. In addition, employees at three offices informed us the U.S. Postal Service or special carriers left mail or packages, which may have included original documents or personally identifiable information, outside the offices in publically accessible areas after business hours and over the weekends. 
  • Approximately 50 percent of field office managers reported they are overwhelmed by mail duties, and approximately 20 percent stated they are unable to keep up with mail workloads. Some office managers also told us they did not have adequate in-person staffing to keep up with mail duties while offices remained closed because of the COVID-19 pandemic. ...

     Update: This OIG report is already drawing attention from Fox and CNBC. Expect more media coverage. This is exactly the publicity needed at a time when Social Security's operating budget for FY 2022 is under consideration.

Jul 29, 2021

Guidance On Long Covid

      From Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 issued jointly by the Office of Civil Rights at the Department of Health and Human Services and the Civil Rights Division at the Department of Justice (footnotes omitted):

Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time.1  This can happen to anyone who has had COVID-19, even if the initial illness was mild.  People with this condition are sometimes called “long-haulers.”  This condition is known as “long COVID.” ...

Long COVID is a physiological condition affecting one or more body systems.  For example, some people with long COVID experience:

  • Lung damage
  • Heart damage, including inflammation of the heart muscle
  • Kidney damage
  • Neurological damage
  • Damage to the circulatory system resulting in poor blood flow
  • Lingering emotional illness and other mental health conditions
Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557. ...

     I expect that Social Security will "consider" long COVID in determining disability. Decisions will say that long COVID  was "considered" but determined to have been a non-severe impairment.

No Additional Money For Social Security In Bipartisan Agreement On Emergency Supplemental

      The emergency supplemental appropriation bill pending in the Senate had included additional funding for the Social Security Administration. There is now a bipartisan agreement on the bill and it appears that additional money for Social Security didn't make the cut. Starving Social Security for operating funds appears to be a fundamental GOP goal.

Jul 28, 2021

Broadcast E-Mail To SSA Personnel

 From: ^Human Resources Internal Communications <Human.Resources.Internal.Communications@ssa.gov>

Sent: Wednesday, July 28, 2021 9:01 AM
Subject: New CDC Guidance and COVID-19 Workplace Reminders

TO:  All SSA Personnel

SUBJECT:  New CDC Guidance and COVID-19 Workplace Reminders

A Message to All SSA Personnel

While the Centers for Disease Control and Prevention (CDC) updated guidance on the Interim Public Health Recommendations for Fully Vaccinated People yesterday, all SSA personnel are reminded that we continue to follow the policies in our current Workplace Safety Plan (WSP), which include properly wearing a face mask and maintaining physical distance in all offices, along with adhering to self-screening criteria.  

SELF-SCREENING:  Prior to entering SSA facilities, everyone must self-screen.  If the answer to any of the screening questions is “yes,” you must not enter SSA facilities, regardless of vaccination status.  The self-screening questions are:

  • Do you have any symptoms of COVID-19 including:
    • Cough or sore throat;
    • Fever (100.4 degrees or higher);
    • Chills;
    • Shortness of breath or difficulty breathing;
    • Muscle pain or body aches;
    • Headache;
    • New loss of taste or smell; or
    • Gastrointestinal symptoms like nausea, vomiting, or diarrhea.
  • Within the last 14 days, have you:
    • Been diagnosed with COVID-19;
    • Received instructions from a public health authority (local health authority, medical professional, etc.) to self-monitor for symptoms or self-quarantine;
    • Traveled outside the country, including on a cruise ship; or
    • To your knowledge, been in close physical contact (within 6 feet) with a person who was diagnosed with COVID-19 within 14 days of your contact with them.

FACE MASKS AND PHYSICAL DISTANCING:  Everyone must wear face masks covering the nose and mouth at all times in SSA facilities and avoid close contact with other people.  Close contact is defined by the CDC as being within 6 feet of another person for a total of 15 minutes or more during a 24-hour period.  Everyone must physical distance at least 6 feet while in SSA facilities.

TESTING:  Free COVID-19 testing is available from many local pharmacies.  The CDC recommends that anyone with symptoms of COVID-19 or who has had a close contact with someone who tested positive for COVID-19 get tested (refer to screening questions above), regardless of vaccination status.  Remember to stay away from other people pending a test result and consult with your healthcare provider. 

VACCINATION:  According to the CDC, vaccines for COVID-19 are safe and effective at preventing COVID-19, including severe illness and death.  We encourage all eligible employees to become vaccinated as soon as possible.  The agency continues to offer up to 4 hours of administrative leave for vaccination and up to 2 days of administrative leave for any adverse reactions to vaccination.  To find a COVID-19 vaccine near you:  Search vaccines.gov, text your Zip Code to 438829, or call 1-800-232-0233.

Payment Centers Are A Mess

      Here's a note recorded by a legal assistant in my firm's database: "TC [Telephone Call] Mid Atlantic PSC [Program Service Center] (816) 936-3910 and he said they have it [a fee petition] but they're taking about a year to process fee petitions and we are about half way."

     How can law firms be expected to represent Social Security claimants in this sort of environment? And we're paying a user fee for this sort of service!

     It's not just attorney fees that are a problem. All sorts of things are a problem for the payment centers. It's obvious that they "fast track" the simplest work and almost nothing else is getting done. However, even the "fast tracked" work is slow.

     I'm not blaming the people. They're just overwhelmed.

Reopening Plans At Two Other Agencies

      From a Federal News Network piece on agency reopening plans:

... The Agriculture Department is eyeing an Oct. 1 reentry date for some — but not all — of its employees. ...

At the Labor Department, offices will reopen on a phased basis    , starting with 50% of the workforce no earlier than Sept. 7 ...

Jul 27, 2021

Proposed Rules On Frequency Of CDRs Being Withdrawn

      Tomorrow's Federal Register will include a notice from the Social Security Administration that it is withdrawing a Notice of Proposed Rulemaking posted while Andrew Saul was Commissioner that would have made continuing disability reviews more frequent for some recipients of disability benefits.

Jul 26, 2021

This Would Help

     There's an emergency appropriations bill pending in the Senate mostly designed to cover the costs of the January 6 insurrection. However, there's $150 million tucked away in the bill (page 20) for Social Security which has been buffeted by many things in the last year but not so much by the insurrection. There is not a similar special appropriation for Social Security in the version of this bill passed by the House of Representatives.

Jul 25, 2021

Some SSI Reform May Come In Reconciliation Bill

      From Time:

... Democrats have another, less well-known plan to improve an element of the country’s social safety net that supports the neediest Americans: boosting Supplemental Security Income (SSI) benefits. ...

[Senator Sherrod] Brown and other powerful Democrats in Congress, along with disability and aging advocates, want to increase SSI benefits as part of their $3.5 trillion budget reconciliation package, which they can pass along party lines over Republican opposition. ...

Brown’s plan would cost $46 billion next year, according to an estimate from the Social Security Chief Actuary, but he believes the pandemic has changed the conversation about the role of government in Americans’ lives and opened the door to many long held Democratic priorities. ...

But SSI reforms are unlikely to be included in a bipartisan package because of cost concerns ...

Brown says he has been talking to Senate Majority Leader Chuck Schumer and other negotiators about ways to make the SSI changes work and says he is “optimistic” that at least some can be included in the reconciliation bill. ...

Jul 24, 2021

SSAB Roundtable On Medical Evidence Collection

On Thursday afternoon, July 29, from 12:45 to 4 pm EDT, the Board will bring together state Disability Determination Services managers and staff, a claimant attorney, and former Social Security executives for a roundtable on the agency’s medical evidence collection.

Register Here

The roundtable will cover an introduction to the evidence collection process and state approaches to collecting evidence.

  • Bob Emrich, Senior Technical Consultant SSA Portfolio, Peraton; former Director, Federal DDS, SSA (retired)
  • Marjorie Garcia, President, National Association of Disability Examiners (NADE); Disability Analyst, Oregon DDS
  • Paul Kreger, Medical Professional Relations Officer, Iowa DDS
  • Jennifer Nottingham, Legislative Director, NADE; Operations Manager, Nevada DDS
  • Marjorie Portnoy, Managing Partner, Portnoy Disability Practice in Radnor, Pennsylvania
  • Teresa Sizemore-Hernandez, Professional Relations Team Leader, Virginia DDS
  • Melissa Spencer, former Deputy Associate Commissioner, Office of Disability Policy, SSA (retired)
  • Sara Winn, Immediate Past President, NADE; Program Specialist, Louisiana DDS

Jul 23, 2021

The Reopening Controversy

      From the Washington Post:

... Hundreds of agencies submitted their return-to-office plans to the White House budget office to meet last Monday’s deadline, laying out how they would begin to phase out remote work for hundreds of thousands of employees after Labor Day, with a full return to federal offices planned by the end of the year. ...

But with the more contagious delta variant surging and sending tens of thousands of unvaccinated people to hospitals across the nation, trepidation over the reentry plans has risen among some Biden administration officials ...

The Social Security Administration, the focus of increasing pressure from Republicans on Capitol Hill to reopen, has not submitted its reentry plans to the White House budget office. ...

The White House is under intense pressure from disparate sides of the debate over reopening. Unions that represent the majority of the federal bureaucracy of 2.1 million workers — and are a key Democratic constituency — are reluctant to cede full control of workplace decisions to the administration, although they have not disagreed publicly.

Advocates for the disabled, meantime, have pushed for reopening some of the nation’s 1,240 Social Security field offices. Applications for disability benefits have plummeted during the pandemic, as low-income Americans without access to the Internet have been prevented from seeking benefits.

And the administration has been hammered for months by Republican lawmakers over the slow pace of returning federal employees to the workplace. Republicans have charged that closed offices and remote work, particularly at the Social Security Administration and the Internal Revenue Service, have led to diminished services for the public. ...

On a conference call Tuesday, the agency’s union leaders concurred that the administration’s push to reopen, particularly the field offices around the country that provide vital face-to-face service to low-income applicants for disability benefits, “is happening a little prematurely,” ...

     Covid is now an endemic disease. It's not going away ever. The toll it takes can be dramatically reduced by vaccination but we can no more eliminate all Covid risk now or in the future than we can completely eliminate all risk from influenza. It's unlikely that we'll ever find a way to be any safer from Covid at any time in the future than we are now. The risk from Covid, including all variants, is minimal if you're fully vaccinated and we're never going to be able to remove that minimal risk.

     Anyone who claims that Social Security is getting its work done now is either a fool or a liar. The agency is having massive problems. Certainly, the biggest cause is a lack of adequate staff. There would be major problems even if Covid-19 had never happened. However, it's going to be impossible to convince me or anyone else who deals with the agency that employees are just as productive working from home every day. There's just been too much deterioration in service since last March. And, of course, there's some things that can't be done from home, like meeting claimants in person. However, quaint that may seem to some, there's a huge demand for that sort of service.

     Many Social Security employees find working from home every day to be quite satisfactory. Their unions are hyping the risks of the the delta variant to the hilt to try to stave off the day when those employees are forced to return to the office. However, let's be honest, how many of those employees are really cowering in their homes in terror of Covid-19? In the world where I live, it's hard to get a restaurant reservation on the weekend. People are attending concerts and ball games in large numbers. Families and friends are gathering for social occasions. My guess is that the vast majority of Social Security employees are out and about doing these things and more, just like their neighbors. If they can do that, they can come into work.

     If you think that delaying reopening is a good idea, what's your end game? What do you think is going to happen to make it safer in the future than it is today? If your position is that we should never reopen the offices to the public, do you honestly think the public will tolerate Social Security field offices closing for good?

     The unions will never be happy with it but the field offices will reopen to the public at some point in the future and I can guarantee that they won't be any safer then than they would be now. Let's get on with it. The American public needs and deserves it. 

Jul 22, 2021

Temporary Change To MS Listings

      From a temporary final rule that Social Security is publishing in the Federal Register tomorrow:

Since the outset of the COVID-19 national public health emergency, many individuals have experienced barriers that prevent them from timely accessing healthcare. In response to those barriers, we are issuing this rule to temporarily revise our requirement in the Listing of Impairments (listings) that, for purposes of applying several of our musculoskeletal disorder listings, all relevant medical criteria be present simultaneously or “within a close proximity of time,” which we define as being “within a consecutive 4-month period.” While this rule is in effect, we will find that the evidence of a musculoskeletal disorder is present “within a close proximity of time” if the available evidence establishes such a condition within a consecutive 12-month period. We expect that this temporary change to our rules will allow us to make findings of disability in appropriate cases in which individuals have experienced barriers to access to healthcare because of the COVID-19 national public health emergency.

GOP Lawmakers Call For Reopening

      From Fedsmith:

A group of [Republican] lawmakers said that the interests of federal employee unions are being put ahead of those of Americans in making decisions about when to fully reopen agency offices.

A group of 14 Congressmen are the latest lawmakers to call for federal employees to return to work in agency offices in greater numbers to better meet the needs of their constituents. In a letter to agency leaders, they called for an immediate and safe reopening of agency offices, especially for those that offer in-person services that cannot be replicated virtually.

“As you finalize reopening and staffing posture plans with individual Federal agencies this week, we request that you consider the impact that continued closure of many Federal offices to the public has on millions of Americans, particularly elderly and low-income Americans who rely on the in-person services offered, particularly at Social Security Administration (SSA) field offices, across the country, and urge you to prioritize the reopening of Federal offices in the interests of all Americans, not just those of unions,” said the lawmakers in their letter. ...

     Democratic members of Congress won't be bashing employee unions and will be more interested in protecting employee health but they too have constituents who need something closer to normal service from their federal government than what we're getting now.

Jul 21, 2021

A Message From The Acting Commissioner -- Delay In Reopening Plan

From: ^Commissioner Broadcast <Commissioner.Broadcast@ssa.gov>
Sent: Tuesday, July 20, 2021 1:51 PM
Subject: Moving Forward

A Message to All SSA Employees

Subject: Moving Forward

As I enter my second week as Acting Commissioner, I would like to share a bit about my goals, objectives, and for our path forward.

Right now, I am spending much of my time listening to and learning from agency experts.  I am meeting with labor unions this week.  I also want to hear from you, staff and managers alike.  I am relying on you to help identify what we can improve, recommend solutions, and bring about change that helps us serve the public better.  If you have an idea you would like to share with me, please send it to the  ^Employee Ideas mailbox.

My goals and objectives for Social Security are straightforward, and they will drive my decisions every day. 

  • Everyone who is eligible for benefits under the programs we administer should receive them.  It is up to all of us to identify and resolve any root causes of inequity in accessing our programs.
  • We must treat our employees fairly and equitably.  That means supporting you in the career paths that you choose and recognizing that your success is critical to the success of our organization. 

I believe that when we observe or encounter disparities, we should first identify and address systemic barriers that contribute to these disparities before we assume there are deficits in the individuals, families, and communities we serve, or in colleagues with whom we serve.   

As our country rebounds from a pandemic that has changed how we engage in our communities, the need for our services is tremendous, particularly for people facing barriers to our services. I know you are wondering about what we are planning for the government-wide transition back to the office and are particularly interested in telework.  You may see in the media that yesterday most agencies finalized their plans for reentry.  I take this effort seriously, and we have been given a little more time to finalize our plan so that I can ensure it is informed by our employees and stakeholders.  Therefore, I will share more information soon.  Let me assure you that we will overcome challenges together – thoughtfully and safely.

Thank you for your work every day to help the millions of people who depend on our services.

Kilolo Kijakazi
Acting Commissioner

Win For Law Firms

      From Bloomberg Law:

The Social Security Administration must change its procedures for paying attorneys’ fees in disability benefit disputes to allow payments to law firms and payments for work done by lawyers who later join the government, the First Circuit held.

The administration’s requirement that attorneys’ fees be paid to individual attorneys and not to law firms is arbitrary and frustrates the statutory mandate to provide a reasonable legal fee for representing Social Security disability claimants, the U.S. Court of Appeals for the First Circuit said in a July 16 opinion.

The fact that only individual attorneys can serve as representatives in the disability claims process doesn’t justify a limitation on payments that ignores the “practical reality” that law firms “ordinarily are the ultimate recipients of fees paid to salaried associates,” the court said.

The court reached a similar conclusion with respect to the administration’s bar on paying attorneys’ fees for work completed by lawyers who later leave private practice to take a government job. The administration said this rule was necessary to comply with government-wide ethics requirements prohibiting officials from being paid to represent claimants before the administration.

The First Circuit disagreed, calling this logic “inscrutable” and “facially irrational.” ...

     The decision is in the case of Marasco & Nesselbush v. Collins, et al

     Social Security would only have to apply this in the relatively small First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) but if they don't apply it more generally there will be litigation elsewhere. Also, my hope is that those involved with Social Security policy on this issue know that something should have done about this decades ago.

Jul 20, 2021

SSI Changes Under Consideration

      There has been some interest in Congress in adding SSI provisions to the Budget Reconciliation bill being considered in the Senate. I have no idea how serious this interest is. The Office of Chief Actuary at Social Security has prepared estimates of the costs of various provisions that might be considered. These provisions are actually part of a standalone SSI bill but no standalone SSI bill can pass in the Senate because of the filibuster. The only way any of this happens is by getting folded into the Budget Reconciliation bill. The combined effect of all the provisions being considered would be $510 billion over the next ten years. I'm pretty sure that's not going to happen, at least not this year. However, the main part of this -- $350 billion -- is for increasing benefit amounts generally. Increasing income exclusions would cost another $60 billion and eliminating the in kind support and maintenance rule would cost $31 billion. We'll see whether any of those end up in the bill. Some other provisions under consideration have much lower costs and are more likely to be added:

  • Exclusion of retirement accounts from resources
  • Repeal of the disposal of resources for less than fair market value rule
  • Clarifying the treatment of certain state tax credits
  • Elimination of dedicated accounts for some past-due benefits
  • Elimination of installment payment rules
  • Extension of period of exclusion for certain payments
  • Elimination of holding out rule

Jul 19, 2021

Saul Pens Op Ed For WSJ

      There is an op ed by ousted Social Security Commissioner Andrew Saul in today's Wall Street Journal. Saul claims to have administered Social Security in a nonpartisan way. He believes he's a victim of employee unions who want to reopen contract negotiations.

     Saul is certainly correct that the labor unions are most responsible for his firing. However, they were only out to get him because of his highly partisan effort to destroy the unions. I don't know why he expected them to turn the other cheek or for a Democratic administration to ignore their complaints.

     The absurd thing about this op ed is that Saul's claim to have administered Social Security in a nonpartisan fashion is being published in what must be the most highly partisan Republican editorial page in the country. That's hardly a good way to prove your non-partisanship. Perhaps he offered it to other newspapers first but they weren't interested.

     The most important thing about this op ed may be the fact that it sounds as if Saul accepts that he's been fired. There's no talk about litigation. The litigation would have gone nowhere but it would still have been an annoyance.

COLA Will Be High This Year

      Already, we're getting projections of what the Cost Of Living Adjustment (COLA) will be for Social Security this year. It's clear it will be far higher than what we're used to. The Kiplinger Letter is predicting it will be 6.3%. I don't know that they should be but Social Security recipients always seem happy to see large COLAs even though their purchasing power hasn't really increased.

Jul 18, 2021

Larson Approves

      The Chairman of the House Social Security Subcommittee has expressed satisfaction with the provisions of the appropriations bill covering Social Security recently passed by the House of Representatives. I’m sure the going will be slower in the Senate, however.

Jul 17, 2021

How Much Does Social Security Offset The Motherhood Penalty?

      From How Much Does Social Security Offset The Motherhood Penalty? by Matthew S. Rutledge, Alice Zulkarnain, and Sara Ellen King:

Click on image to view full size

Jul 16, 2021

House Appropriations Bill Advances

      I posted yesterday about the draft report on the appropriations bill covering Social Security under consideration in the House Appropriations Committee. I emphasized that it was only a draft. Well, that draft advanced yesterday. It's now been reported out by the House Appropriations Committee. Of course, it still must be considered on the floor of the House and in the Senate but it's moving forward quite rapidly compared to what has happened in recent years. The current fiscal year ends on September 30, 2021.

Jul 15, 2021

Lots Of Interesting Language In Draft House Appropriations Committee Report

      The draft House Appropriations Committee report on the Labor-HHS Appropriations Bill, which includes administrative funding for the Social Security Administration, is out. This hasn't been voted on even in committee, much less on the floor of the House of Representatives or the Senate. The report contains language showing appropriation amounts, which, if adopted, would be mandatory but it also contains a good deal of what we may call recommendations. Agencies aren't under a legal obligation to act on those recommendations but they always have to pay attention to them and often act on them. There is more of this sort of language than I can ever recall seeing for Social Security. Here are some excerpts from this draft (emphasis added): 


Appropriation, fiscal year 2022      $11,219,945,000 

Budget request, fiscal year 2022    12,341,896,000 

Committee Recommendation        12,219,945,000 

Change from enacted level         +1,000,000,000 

Change from budget request       -121,951,000 ...

The Committee provides an increase of not less than $650,000,000 to support frontline operations in field offices, teleservice centers, and program service centers. In addition, the recommendation includes the increase requested in the budget to replace losses and build capacity at the State Dis-ability Determination Services (DDS) agencies that make disability determinations for SSA.Within the recommended funding level, the Committee provides $89,500,000 for SSA to mail paper statements to all contributors aged 25 and older not yet receiving benefits ...

 The Committee considers the Final Rule ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council’’ (85 Fed. Reg. 73138, December 16, 2020) to be an unjustified erosion of due process for individuals who are appealing a denial of Social Security or SSI benefits. ...In light of the harm that would be caused by this policy change, the Committee strongly urges SSA not to exercise this authority ...

The Committee continues to be deeply concerned about the impact of Presidential Executive Order 13843 (July 10, 2018) on the judicial independence of adminstrative law judges (ALJs). The Order eliminates the competitive hiring process for ALJs and has the potential impact of converting independent adjudicators to political appointees, undermining long-standing principles of fair and unbiased consideration of matters of vital importance to the American people. ALJs must be independent decision-makers and it is the Committee’s expectation that SSA maintain the highest standards for appointment of ALJs. ...

The Committee recognizes that the pandemic disrupted progress SSA made with its initial disability claims backlog, and remains concerned about the adverse impacts disability claim hearings backlogs have on an individual’s ability to access their Social Security benefits. Accordingly, the Committee urges the Commissioner to prioritize the hiring of additional administrative law judges and requisite staff to adjudicate backlogged claims. In addition, the Committee directs the Commissioner to continue to prioritize efforts to reduce wait time disparities across the country by directing resources and workload assistance, as necessary, and to provide the Committee annual reports on efforts to reduce the hearing backlog for Hearing Offices in the bottom twenty of national ranking by average processing time. ...

The Committee is concerned about the time it takes SSA to effectuate favorable SSI and/or SSDI disability determinations and directs SSA to submit a report to the Committee within 180 days of enactment of this Act, on SSA’s procedures for paying past-due and ongoing benefits after a claimant has been found disabled.  ... 

The Committee believes that quality representation in matters with SSA assists claimants and beneficiaries, and can also help SSA work more accurately and efficiently. The Committee continues to support direct payment of fees to representatives, encourages the Commissioner to raise and index the cap on fees payable via fee agreement, and requests that the Commissioner add a Performance Measure on timely and accurate payment of representative fees to the Fiscal Year 2022 and subsequent Annual Performance Plans. ...

The Committee reiterates its support for well-managed telework programs in the Federal workplace, which have demonstrated benefits for human capital as well as continuity of operations. The Committee expects SSA to implement telework policies that support these goals while also strengthening service to the American public, including in-person service in community-based field offices. The Committee directs SSA to submit a report within 90 days of enactment of this Act detailing the agency’s telework policies and identifying any positions for which telework has not been provided or has been reduced from pre-October 2019 levels,along with the reasons for any telework reductions. ...

The Committee understands that during the COVID–19 pandemic, SSA is providing claimants with the option of a video hearing, a telephone hearing, or a postponement if the individual would prefer to wait until an in-person hearing is available. The Committee expects that once the COVID–19 pandemic ends, SSA will resume in-person hearings.