I received this message from a reader.
In case you and NOSSCR are not aware of it, in the last few days SSA has reversed a long standing policy that will potentially have major implications and may introduce legal liability to 3rd party representatives. On claims, SSA will no longer recognize a protective filing for a spouse or children listed on a claim unless the NH puts a statement in the remarks of the application expressing an intent to file on behalf of the spouse/children. I haven't seen this POMS, and I don't know if it is being implemented retroactively or prospectively going forward. Legal reps might have liability if they list the spouse/kids but fail to add the intent to file language to the application remarks. This is obviously a thinly veiled attempt to deny a protective filing to spouses/children of people filing claims. The office I retired from told me they are planning a training session on it very soon.
POMS GN 00204.010 contains the new policy. It has apparently been in place since 04/27/2026. The prior policy applies up to 04/26/2026.
The claims forms ask for a list of children and a spouse. I don’t know how you could not interpret that as an intention to file a claim for them.
There have been problems in the pst when a claimant fails to list all the children, usually for malicious reasons relating to a divorce, but sometimes because the child was born after the claim was filed. That problem is probably a direct result of the statute and regulations rather than anything intended to be harsh.
If we’re talking about harsh and malicious, what the reader is talking about would definitely be a serious gotcha that I would call harsh and malicious. I have a hard time believing this could happen but it’s hard to put anything past this Administration. I think they could not prevail in Court on this.
Their argument is that establishing a protective filing requires "an intent to file an application". Long standing SSA policy was that the intent was presumed if the wage earner listed a spouse and/or children on the application. Since the presumption of intent no longer applies as of 04/27/2026, in absence of the wage earner establishing such intent this devolves listing a spouse/children on an application from a protective filing to simply being a lead (just like listing an ex-spouse does). Leads do not convey a protective filing date - the filing date used is when the subject of the lead schedules an appointment to file an application.
ReplyDeleteFurther, the way I read the strict wording of the new POMS, it is clear that for a disability applicant they can no longer defer filing an application for the auxiliaries. It appears that SSA is supposed to send a 6 month close out letter and either take the claims or the protective filing date is lost. If the auxiliary claims are taken, this is especially problematic since taking auxiliary claims simultaneous with an initial disability claim causes all sort of problems when the claim is denied and an appeal is filed. The Title II system will create an appeal for EVERYONE (both wage earner and spouse/children), which will quickly exhaust the MCS claim segment limits of the system and cause the case to have to be converted to paper.
And, you now have liability on the part of 3rd party representatives who omit the statement from claims they file. If they don't add the intent to file language to the claim, the signature summary that goes out to their client will not have it, which means that unless an overworked and overwhelmed SSA employee catches it, the spouse/children may have just lost benefits.
This is the kind of crap that happens when people are making decisions about jobs that they never performed and thus don't have a clue about how SSA works in the real world.
That is not accurate. Under current policy for deferred development claims, the auxiliary protective filing 6-month closeout may remain deferred until disability is established for the number holder. Specifically to ensure the deferral policy would be maintained, the related POMS instructions were updated this past Spring (DI 11010.030: FO Operating Instructions for Deferred Title II Initial Claims).
DeleteThere was a reason SSA moved away from taking auxiliary claims with initial disability claims 40+ years ago and instead began deferring them. Since 60-70% (varies by state) of initial Title II disability claims are denied initially, why waste scarce resources and even more scarce employee processing time taking and processing lots of potentially unnecessary auxiliary claims until the final decision of the Commissioner is rendered?
ReplyDeleteCan you folks do us a favor and actually include the ssn's of your clients' auxiliaries? It would make our jobs easier. Some firms completely skip these questions. And I don't buy the lazy "client doesn't remember" excuse.
ReplyDeletefrom the policy: "Currently, there is no mechanism to collect intent to file for auxiliaries (e.g., eligible spouse, children) named on an iClaim. Therefore, at any time you contact the NH to request evidence or develop other items on the application (Retirement or Disability), you must ask if there is intent to file for the auxiliaries."
Do yourselves a favor and include the intent in the remarks section instead of the boilerplate, "client doesn't recall wages, work, medical conditions, or even their own name."