CDRs To Resume

     Social Security is resuming Continuing Disability Reviews (CDRs) in October for the new federal fiscal year. The CDRs had been suspended due to the huge backlog of cases awaiting a decision on initial claims. Resuming CDRs is likely to slow down Disability Determination Services (DDS) work on initial claims.

SSA Stops CDRs For The Remainder Of The Fiscal Year

     From Emergency Message EM-24021:

With the enactment of our full-year appropriation for this fiscal year, we are lowering our Full Medical CDR t[Continuing Disability Review] arget from 575,000 to 375,000.

This reduction will allow DDSs [Disability Determination Services] to focus on processing Initial Disability Claims and Reconsideration cases. The field offices will not send additional Full Medical CDRs to the DDS for the remainder of FY 2024. ...

Do not assign unassigned CDRs pending in your receipt or staging queue. DDS should take no action on the unassigned Full Medical CDRs. ...

Age 18 Redeterminations:

If you have sufficient evidence in file at the publication date of this emergency message, make the Age 18 Redetermination.
If the evidence in file at the publication date of this emergency message is insufficient to make the Age 18 Redetermination:
a. Do not initiate additional development, such as requesting medical evidence of record (MER) or school records;
b. Do not schedule for consultative examinations (CE); and,
c. Do not assign to medical or psychological consultant(s) for review. ...

A Less Colorful Waterfall Chart With CDR Numbers

 

Click on image to view full size

Signature No Longer Required On One Form

     From Emergency Message EM-23054:

This emergency message (EM) notifies technicians that we no longer require a signature on any version of the SSA-455 [a Continuing Disability Review form sent to claimants]...

SSA recently received OMB [Office of Management and Budget, whose pro forma OK is required before changing forms] approval to discontinue the requirement for a signature on the CDR Mailer form SSA-455 and SSA-455-OCR-SM. The latest inForm Library version of the SSA-455 has been updated to remove the signature box. ...

     If we can dispense with the signature requirement on this form, can't we dispense with some other signature requirements or at least verification of electronic signatures? There's a lot of field office time wasted on this.

Debt Limit Bill Passes House Of Representatives

     The bill to increase the debt limit passed the House of Representatives yesterday. It would force a slight decrease in "non-defense discretionary" spending. That's only a relatively small portion of federal spending but it includes Social Security's administrative budget. If you consider inflation, which may be around 5% now, agencies affected can expect a significant decrease in operating funds. Exactly how much each agency in the "non-defense discretionary" category receives will be determined in the appropriations process that lies ahead. While we can hope that the Social Security Administration fares better than other agencies, the reality is that it has been disfavored in recent years, receiving less than most other agencies in the "non-defense discretionary" category.

     The projected cut in operating funds for Social Security probably won't be across the board. I am attaching a page from the debt limit bill. My guess is that the language about continuing disability reviews is intended to make sure that the Social Security Administration has more and more to spend on CDRs even though its appropriation otherwise will go down. Does anyone know whether there's more going on?

Click on image to view full size

Every Bad Idea For Social Security That The GOP Has Ever Had, In One Document

    Republicans in the House of Representatives have put forth their plan for what that they hope to extort from the President by threatening to put the U.S. government into default on its debts. Here's what their plan would do to Social Security retirement benefits (begins at page 80):

• Implement a new minimum benefit of 15% of the average wage index;
• "Modernize" the Social Security benefit formula, which is a euphemism for reducing future benefits for those now 54 and younger;
• Increase Full Retirement Age to 70 between now and 2040;
• Eliminate the retirement earnings test for those who are under Full Retirement Age;
• Eliminate auxiliary benefits for high wage earners.
  

    The plan also includes changes in disability benefits (begins at page 74):

• Enact a benefits offset experiment that would reduce disability benefits by $1 for every $2 earned (they must not know that this experiment is underway already);
• Allow FICA reductions for employers with high rates of employee retention, which is supposed to help handicapped people stay employed (which would disadvantage manufacturers);
• Require employment in six of the last ten years, instead of five;
• Time limited disability benefits for some recipients; 
• "Update" the grid regulations;
• Make disability benefits contingent on medical improvement (I don't think they meant to say that but that's what they said);
• Prevent those drawing unemployment benefits from drawing disability benefits;
• Eliminate withholding of attorney fees for representing claimants (at least I think that's what they're saying but they only thing clear about it is that they bear a lot of ill will towards attorneys);
• Close the record "after a reasonable period of time";
• Require Social Security to conduct periodic reviews of ALJ decisions, particularly those of "outlier" judges;
• Prohibit reapplications within 12 months of a denial;
• Increase the waiting period for Medicare from 24 months to 60 months;
• Eliminate the ability to apply for both early retirement and disability benefits at the same time;
• Allow employers and employees a reduced FICA rate if the employer provides long term disability benefits.

Waterfall Chart With CDRs

Click on image to view full size

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.

Why The Concentration On CDRs When Basic Service Is Suffering?

      From David Weaver, writing for The Hill:

The Biden administration recently released its first official budget plan, which recommends a 9.7 percent increase in the administrative budget of the Social Security Administration (SSA). This increase in top-line funding would partially reverse the chronic underfunding of the agency by Congress (SSA's core operating budget, adjusted for inflation, fell 13 percent from 2010 to 2021, while the number of beneficiaries SSA serves grew by 22 percent). However, problems with SSA's administrative funding go beyond insufficient funding of top-line numbers.

Increasingly, Congress has directed funding away from service delivery to disability reviews that remove individuals from the rolls based on SSA's assessment of medical improvement. ...

SSA plans to increase the number of full medical disability reviews next year by 36 percent and increase the number of Supplemental Security Income (SSI) redeterminations by 23 percent. ...

SSA plans to accelerate disability reviews next year so the agency can rapidly get back to being "current" on conducting the maximum number of reviews allowed by regulations. However, the agency shows no similar urgency on being "current" on other program integrity workloads. ...

Congress needs to pause increases in disability reviews and redeterminations until it can study — and possibly reform — the administrative process. That will also have the beneficial effect of allowing SSA to focus on service delivery as it begins to find its footing following the pandemic.

Could Musculoskeletal Listing Changes Be Reconsidered?

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. However, the change of Administration could delay implementation or even kill these changes altogether. Soon after taking office, Biden's Chief of Staff sent a memorandum to agency heads giving them this directive:

... With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum ... for the purpose of reviewing any questions of fact, law, and policy the rules may raise.  For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.  As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.  Following the 60-day delay in effective date:

a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and 

b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director. ...

     The musculoskeletal Listings certainly raise substantial questions of policy, if not fact. Even though their effective date is more than 60 days after this memo, it would certainly seem that they should be subject to additional review and that there should be a new comment period. I would expect that there will be "requests for reconsideration" of the Listings. These new musculoskeletal Listings are not mere housekeeping. They were and remain a highly controversial attack on disability claimants.

     By the way, those proposed regulations that would have increased the number of continuing disability review and that would have modified the grid regulations may not have been officially withdrawn yet but they're dead.

Final Approval Requested For CDR Regs

      Almost a year ago, Social Security published proposed regulations on continuing disability reviews. They propose to add a new category fro reviews, Medical Improvement Likely (MIL), to be reviewed every two years. MIL was aimed at a group of impairments which they said fitted between the categories of Medical Improvement Expected (MIE) and Medical Improvement Possible (MIP). They said they would include anxiety related disorders in this category. They proposed to increase the frequency of reviews for the category of Medical Improvement Not Expected (MINE) from seven years to six years. Overall, they said they expected to increase Continuing Disability Review (CDRs) by more than 1.1 million a year. This proposal encountered considerable opposition. 

     Social Security has now asked the Office of Management and Budget (OMB) to give approval to these as final regulations.  OMB won't have long to act on the proposed final regulations. Traditionally, new Administrations put a freeze on any regulations still pending at OMB as well as new regulations that have been published but which have not yet gone into effect. Since agencies have to give at least 30 days notice, by my calculation Social Security needs to get these regulations in the Federal Register by December 21 to have them become effective before Joe Biden takes office. Even if they meet this timeline, the new Administration can refuse to implement them and the new Congress can review them under the Congressional Review Act. There are no filibusters of Congressional Review Act reviews.

Biden Plan For Social Security Disability

      From Joe Biden's plan for people with disabilities:

PROTECT AND STRENGTHEN ECONOMIC SECURITY FOR PEOPLE WITH DISABILITIES

The Trump Administration has systematically attacked the Social Security disability programs—from proposing monitoring people with disabilities through social media in order to cancel their benefits, including their health care, to tightening eligibility through a proposal to  redefine the number of hours in a work week so some applicants do not receive benefits. The National Council on Disability found that “people with disabilities live in poverty at more than twice the rate of people without disabilities.” To protect the economic security of people with disabilities and increase employment opportunities, Biden will take a holistic approach to Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), Medicaid, and other programs to support people with disabilities. He will: 

• Increase the benefit level for people receiving SSI. Biden will set a federal benefit rate of at least 100% of the poverty level. 
• Eliminate the five-month waiting period for SSDI and two-year waiting period for Medicare. Biden will work to pass legislation to ensure working people who develop a condition or disability are able to get their Social Security support as well as their Medicare benefits as soon as they qualify. 
• Eliminate the “benefit cliff” for SSDI. Earnings limits under SSDI can discourage people with disabilities from engaging in employment or internship opportunities when they depend on SSDI funds. Biden will increase this limit and phase out this benefit gradually so people with disabilities don’t have to choose between employment and health care. 
• Reform the SSI program so that it doesn’t limit beneficiaries’ freedom to marry, save, or live where they choose. Biden will work with Congress and the disability community to eliminate the SSI marriage penalty and “in-kind support and maintenance” provision and raise the asset limits associated with SSI that have not been increased since 1984. 
• Expand access to tax-advantaged savings accounts, ABLE accounts, which provide people with disabilities a way to pay for “qualified disability-related expenses, such as education, housing and transportation.” Biden will work to pass the ABLE Age Adjustment Act, which will make ABLE accounts available to 6 million additional adults with disabilities, including 1 million veterans. 
• Reverse damage done to Social Security rules by the Trump Administration. President Trump announced that he wants to change the Social Security rules for people who get disability benefits, including SSI and SSDI. His proposed change would require many to re-verify their disability every two years, a tough enough process to get through once, targeting adults with disabilities who are close to retirement, children with disabilities, and people with certain medical conditions including cancer and behavioral disorders. If approved by the Trump Administration, Biden will rescind this harmful proposal.
• Strengthen the Social Security Administration. Ensuring that Social Security benefits are easy to access and that field offices and teleservice centers are fully funded is key to our bedrock commitment to seniors and people with disabilities. Cutting Social Security services will only hurt the most vulnerable in our communities. Biden will provide sufficient resources for staffing needs to meet the needs of beneficiaries today and into the future.

Draft Bill Gives Little New Funding To SSA But Does Protect ALJs

     From a press release:

The House Appropriations Committee today released the draft fiscal year 2021 Labor, Health and Human Services, Education, and Related Agencies (LHHS) funding bill, which will be considered in subcommittee tomorrow. The legislation includes funding for programs within the Departments of Labor, Health and Human Services, and Education, and other related agencies, including the Social Security Administration. ...

$13 billion for the Social Security Administration’s (SSA) operating expenses, with an increase of $100 million above the FY 2020 enacted level to hire additional staff at field offices, teleservice and processing centers and improve public services. ...

• Continuing Disability Reviews—The bill includes a new provision prohibiting the Social Security Administration from finalizing or implementing a new rule that would significantly increase the number and frequency of CDRs, cutting benefits to Social Security and SSI disabled beneficiaries.   
   
• Administrative Law Judges—The bill includes a new provision prohibiting the Social Security Administration from finalizing or implementing a proposed rule that would replace an individual’s right to appeal their denied application for Social Security or SSI benefits before an independent Administrative Law Judges at a hearing, with an appeal before an SSA staff attorney.

     Note that $100 million is less than 1% of the budget. Even in a time of recession, this may not be enough to cover inflation. I don't this this would lead to any new hiring.

CDRs And Overpayment Collection Suspended Among Other Things

     From a new Social Security Covid-19 website:

What workloads is SSA not doing during the COVID-19 pandemic?

Created: March 18, 2020

We have suspended the following workloads until further notice:

• We will not start or complete any current medical continuing disability reviews. If you have a medical continuing disability review pending, please do not request medical information from your doctors at this time. We will follow up with you for any medical evidence once the COVID-19 public health emergency subsides.
• Where possible, we are suspending our processing and collection of overpayments.
• We are not conducting organization or individual representative payee accountings.
• We will not be able to process a third party requests for information, except from appointed representatives and representative payees
• We will not process any Freedom of Information Act (FOIA) requests.

     What if Social Security is already withholding part of a claimant's benefits because of an overpayment? Are they suspending that?

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. ...

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.

I Don't Think They Anticipated This Kind Of Backlash

     From Common Dreams:

"This policy change is abhorrent and absolutely unjustifiable."

"We all know that the cruelty is the point with this administration, but this sinks to yet another low."

"This would be a crushing blow to me and my family."

Those are just a few of the more than 1,700 official comments members of the U.S. public have left on President Donald Trump's proposed Social Security rule change, which could strip lifesaving disability benefits from hundreds of thousands of people.

The proposal received hardly any media attention when it was first published in the Federal Register in November. But recent reporting on the proposed rule change, as well as outrage from progressive Social Security advocates, sparked a flood of public condemnation and calls for the Trump administration to reverse course.

Backlash against the proposal can be seen in the public comment section for the rule, where self-identified physicians, people with disabilities, social workers, and others have condemned the change as monstrous and potentially deadly. The number of public comments has ballooned in recent days, going from less than 200 to more than 1,700 in a week.

The public comment period ends on January 17, 2020. Comments can be submitted here. ...

Appropriations Bill Report

     The Social Security portions of the Committee report (Social Security part begins at page 157) on the Fiscal Year 2020 appropriations bill covering the Social Security Administration that has been passed by Congress:

The agreement includes an increase of $100,000,000 for SSA's base administrative expenses for additional hires and resources to improve public service at SSA field offices and direct service operations. 

Continuing Disability Reviews.-The agreement directs SSA to include in its next continuing disability review (CDR) report to Congress an evaluation of its CDR prioritization models and a cost-benefit analysis of how it uses estimated savings in determining which beneficiaries receive a full-medical CDR. Additionally, the agreement requests in the fiscal year 2021 Congressional Justification, the process by which SSA intends to pace its CDR workload to properly manage Limitation on Administrative Expenses funding.  

Disability Case Processing System (DCPS).-SSA is encouraged to engage with States to explore all possible options for modernization of the case processing system, to align with the needs of each State, so long as such options have similar or better functionality as DCPS, similar or lower costs to DCPS, and are consistent with Federal procurement and security standards. SSA should continue to provide regular updates on the effort to upgrade DCPS, including the cost and anticipated timeline of the project, and efforts by SSA to engage stakeholders, including any barriers to implementation.  

Disability Hearings Backlog-The agreement encourages SSA to include comprehensive information in its existing reports to Congress on the specific policies SSA has implemented, or has considered, to streamline the disability determination and adjudication process. When considering or implementing changes, SSA should ensure due process, and that applicants have a full and adequate opportunity to present their claims.  

Field Office Closures.-While SSA's Inspector General reviews decisions to close field offices, the Commissioner is strongly encouraged to take every action possible to maintain operations at the offices under review. SSA is expected to support front line operations. As part of the fiscal year 2021 Congressional Justification, SSA should include a plan to identify opportunities for improved field office operations. Finally, SSA is strongly encouraged to ensure its policies and procedures for closing field offices include at least 120 days advance notice to the public, SSA employees, Congress, and other stakeholders. Such notice should include a rationale for the proposed closure and an evaluation of the effects on the public and SSA operations.  

Mail and Printing Systems.-SSA is encouraged to consider and evaluate modernization of its mail and printing systems and contracts that could result in budgetary savings while improving fraud prevention. The agreement requests a briefing for the Committees within 180 days of enactment of this Act on current mailing and printing systems and contracts, including systems or contracts relating to Social Security Cards, and any ongoing efforts to modernize or otherwise improve such systems.

Medical Vocational Guidelines.-The agreement directs SSA to provide a report to the Committees within 90 days of enactment of this Act on its plan and timetable for updating and modernizing medical vocational guidelines and to engage appropriate Committees of jurisdiction prior to making any changes to such guidelines.  

Telework.-SSA is urged to develop a telework plan for Operations employees as quickly as practicable and to brief the Committees on the status of efforts to reinstate telework within 60 days of enactment of this Act.  

Video Hearings.-The agreement reiterates the language included under this heading in House Report 116-62, and directs SSA to provide an update in the fiscal year 2021 Congressional Justification detailing the extent to which SSA meets best practices outlined by the Administrative Conference of the U.S., and the extent to which SSA video hearings, policies, and practices are accessible to individuals with disabilities.  

Work Incentives Planning and Assistance (WIPA) and Protection and Advocacy for Beneficiaries of Social Security (PABSS).-The agreement includes $23,000,000 for WIPA and $7,000,000 for PABSS. 

     A few comments:

• This is mostly precatory language included in the report rather than language actually included in the bill itself. Nevertheless, it's unwise for any agency to ignore it.
• $100 million is a lot of money but it's nowhere near enough to cover increases in the cost of living. In real dollar terms this is a funding cut.
• Congress can order all the studies it wants but you're never going to be able to cut many people off disability benefits under a medical improvement standard. That's because few of them get better, a fact that many in Congress have trouble understanding but, then, there's a lot they don't understand about Social Security disability benefits.
• If Congress doesn't want field office closures, it ought to appropriate more money to the agency.
• I'm going to guess that some company wants a big printing and mailing contract with Social Security and got language into this report supporting them. That seems inappropriate to me.
• This demonstrates what a foolish decision it was to stop telework. How does it feel to get your hand slapped, Andrew Saul?

Opposition To Proposed Rule On Continuing Disability Reviews

     From the Philadelphia Inquirer:

The Trump administration is proposing changes to Social Security that could terminate disability payments to hundreds of thousands of Americans, particularly older people and children.

The new rule would change aspects of disability reviews — the methods by which the Social Security Administration determines whether a person continues to qualify for benefits. Few recipients are aware of the proposal, which is open for public comment through January. ...

The new rule, advocates for low-income Americans say, is just a way to push people off the disability rolls.

“I have serious concerns about this proposed rule,” said U.S. Sen. Bob Casey (D., Pa.), adding that it “appears to be yet another attempt by the Trump administration to make it more difficult for people with disabilities to receive benefits.” ...

     I don't trust the people behind this proposal at all. I'm sure their motivations are bad. They want to cut as many people off benefits as possible. However, they know that cutting a lot of people off benefits would be highly unpopular. Thus, they try to work around the edges. However, there's little they can do without legislative changes that won't happen. I don't think this proposal amounts to much.

Proposed Regs On CDRs

     Social Security will publish proposed regulations on the frequency of continuing disability reviews in the Federal Register on Monday. You can read the proposal today.

     They propose to add a new category, Medical Improvement Likely (MIL), to be reviewed every two years. MIL is aimed at a group of impairments which they say fit between the categories of Medical Improvement Expected (MIE) and Medical Improvement Possible (MIP). They say they will include anxiety related disorders in this category. I don't understand that. Anxiety disorders don't respond well to treatment. Panic disorders, the most commonly disabling anxiety disorder, are quite unresponsive to treatment.

     They propose to increase the frequency of reviews for the category of Medical Improvement Not Expected (MINE) from seven years to six years.

     Overall, they expect to increase Continuing Disability Review (CDRs) by more than 1.1 million a year.

     I love how this is all couched in language about helping people get back to work. That's baloney.  Disability benefits recipients already have plenty of incentives to return to work. Some people who are cut off benefits return to work; many don't. This certainly doesn't help anyone return to work.

     This is just a proposal. The public can comment. Social Security must review the comments. Once the agency is finished reviewing the comments and making any changes they want to make, it has to go back to the Office of Management and Budget for review before publication as final regulations. This process may extend past the next inauguration day. Even if pushed out before that date, an incoming Administration may decide not to implement them.