Rulings Rescinded

      From a notice posted by Social Security in the Federal Register:

By this notice we are rescinding the following [Social Security Rulings]:

• SSR 83-33: Titles II and XVI: Determining Whether Work Is  Substantial Gainful Activity--Employees;
• SSR 83-34: Titles II and XVI: Determining Whether Work Is  Substantial Gainful Activity--Self-Employed Persons;
• SSR 83-35: Titles II and XVI: Averaging of Earnings in Determining Whether Work Is Substantial Gainful Activity;
• SSR 84-25: Titles II and XVI: Determination of Substantial  Gainful Activity If Substantial Work Activity Is Discontinued or Reduced--Unsuccessful Work Attempt; and
• SSR 84-26: Titles II and XVI: Deducting Impairment-Related Work Expenses From Earnings In Determinations As To Substantial Gainful Activity Under Titles II And XVI And As To Countable Earned Income Under Title XVI. ….

     The stated reason for rescinding the SSRs is that subsequent regulations have superseded them. 

Maybe The Original Change In The Listing Was A Bad Idea

     From a notice published in the Federal Register today:

We are extending the flexibility in the “close proximity of time” standard, as defined in two prior temporary final rules (TFR), through May 11, 2029. We issued a TFR providing the “close proximity of time” flexibility on July 23, 2021, because the COVID-19 national public health emergency (PHE) caused many individuals to experience barriers that prevented them from timely accessing in-person healthcare. On September 29, 2023, we extended the flexibility to evaluate evolving healthcare practices and consumption in a post-PHE environment. We determined that we need additional time to fully evaluate still-evolving healthcare practices after the PHE. We are therefore issuing this TFR to extend the “close proximity of time” flexibility until May 11, 2029, so we can continue to evaluate changes in healthcare practices and determine the proper “close proximity of time” standard for the musculoskeletal disorders listings.

    Let me check. I don't think Trump will still be President on May 11, 2029, assuming we follow the Constitution, which may be an uncertain thing.

Electronic Payroll Data Rules Are Now Final

     The final rules on "Use of Electronic Payroll Data To Improve Program Administration" are published in the Federal Register today. They become effective on March 3, 2025.

Regulations Advance

     Two non-controversial regulatory packages have moved forward. The Use of Electronic Payroll Data To Improve Program Administration package has been approved by the Office of Management and Budget for publication as final regs. Final rules on Availability of Information and Records to the Public, concerning Freedom of Information Act requests have been published in the Federal Register today.

New Regs On Setting the Manner of Appearance of Parties and Witnesses at Hearings

     The Social Security Administration has posted final rules on Setting the Manner of Appearance of Parties and Witnesses at Hearings. These formalize the procedures already in place allowing claimants the option of either an in person, video or telephone hearing. 

    The pandemic changed the Social Security Administration in many ways. This may be the most enduring change.

New Regs On Representation Of Claimants

     The new regulations on representation of claimants and payments to the entities that represent claimants will appear in the Federal Register tomorrow. They will be effective in 30 days. You can read them today. 

    Here's a key comment and response from the explanation of the new regulations:

Comment: Commenters asked how we will ensure that entities are paid for work performed by their salaried employees when that work was performed as a part of the representative’s employment. Commenters had concerns that the proposed rule allows a representative to rescind an assignment prior to the award of a claim, thus creating the possibility that the representative could “take with them the fees to which the firm was clearly entitled.”

Response: While we recognize entities’ concerns about receiving compensation for work done by their employees, representative and entity relationships can take many forms, and we are not in a position to know how those relationships are arranged. We respect the choices entities and representatives make with regard to their employment agreements and contractual terms, and we established a process that is flexible enough to accommodate a variety of relationships. Permitting an individual representative to rescind an assignment is important to that flexibility, as rescission might be appropriate in certain relationships. For example, an employment contract might permit a representative to leave a firm’s employ but continue their representation and collect associated fees. ...

Final Regs On Law Firms Representing Claimants Cleared For Publication

     The Office of Management and Budget (OMB) has cleared Social Security's proposed final rules on the recognition of law firms representing claimants. To this point, the agency has insisted that only individuals can represent claimants. In the real world, however, there are these things called law firms and they like to do things like shift responsibility for a case from one of the firm's attorneys to another, something that is now difficult both for the law firm and Social Security. There's also the problems that ensue when an attorney leaves a law firm. Who gets the fee? This is a nice step forward for everyone, including Social Security. Expect these final regulations to be published in the Federal Register before long.

Two Rulings On PRW

     Social Security will publish two Rulings in the Federal Register tomorrow on How We Apply Medical-Vocational Profiles and How We Evaluate Past Work.

    Here's a footnote from the first of those Rulings:

We will use this SSR beginning on its applicable date. We will apply this SSR to new applications filed on or after the applicable date of the SSR and to claims that are pending on and after the applicable date. This means that we will use this SSR on and after its applicable date in any case in which we make a determination or decision. We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the applicable date of this SSR, we will apply this SSR to the entire period at issue in the decision we make after the court’s remand.

    We'll see how this plays out but I doubt they're getting out of this problem with a footnote.

Effective Date Of PRW Change Officially Pushed Back To June 22

     From tomorrow's Federal Register:

We published in the Federal Register on April 18, 2024, a final rule to revise the time period we consider when determining whether an individual’s past work is relevant for the purposes of making disability determinations and decisions under our rules. The preamble of that final rule cited an effective date of June 8, 2024. This rulemaking defers that effective date to June 22, 2024.

It's Official

     It's official. The fee cap on the amount that attorneys can charge Social Security claimants is going up to $9,200 on November 30.

New SSI Regs

     From a notice that Social Security will publish in the Federal Register tomorrow:

We are finalizing our proposed rule to expand the definition of a public assistance (PA) household for purposes of our programs, particularly the Supplemental Security Income (SSI) program, to include the Supplemental Nutrition Assistance Program (SNAP) as an additional means-tested public income-maintenance (PIM) program. We are also revising the definition of a PA household from a household in which every member receives some kind of PIM payment to a household that has both an SSI applicant or recipient, and at least one other household member who receives one or more of the listed PIM payments (the any other definition). If determined to be living in a PA household, inside in-kind support and maintenance (ISM) would no longer need to be developed. The final rule will decrease the number of SSI applicants and recipients charged with ISM from others within their household. In addition, we expect this rule to decrease the amount of income we would deem to SSI applicants and recipients because we will no longer deem as income from ineligible spouses and parents who live in the same household: the value of the SNAP benefits that they receive; any income that was counted or excluded in figuring the amount of that payment; or any income that was used to determine the amount of SNAP benefits to someone else. These policy changes reduce administrative burden for low-income households and SSA. ...

PRW To Go Down From 15 Years To 5 On June 8

     From a notice that Social Security will publish in the Federal Register tomorrow:

We are finalizing our proposed regulation to revise the time period that we consider when determining whether an individual’s past work is relevant for the purposes of making disability determinations and decisions. We are revising the definition of past relevant work (PRW) by reducing the relevant work period from 15 to 5 years. Additionally, we will not consider past work that started and stopped in fewer than 30 calendar days to be PRW. ...

DATES: This final rule will be effective on June 8, 2024.

Help For SSI Recipients

    The Office of Management and Budget (OMB) has approved final rules to add Supplemental Nutrition Assistance Benefits (SNAP or Food Stamps) to the definition of means-tested assistance programs for the purposes of Supplemental Security Income (SSI) computation. This will help reduce Social Security workloads and it will increase benefits for many SSI recipients. Expect to see this in the Federal Register soon.

Final Rules Approved To Omit Food From SSI Support And Maintenance Calculations

    The Office of Information and Regulatory Affairs (OIRA) has approved publication of final rules to omit food from SSI support and maintenance calculations. Expect to see it in the Federal Register in the near future.

NPRM On Use Of Payroll Data Provider Info

     From a Notice of Proposed Rule-Making (NPRM) that the Social Security Administration will publish in the Federal Register tomorrow:

... We are proposing these rules ... for implementing the access to and use of the information held by payroll data providers. ...

We use wage and employment information to decide who can receive OASDI [Old Age, Survivors and Disability Insurance] disability benefits and SSI payments. We also use it to determine SSI payment amounts. Receiving complete, accurate, and timely wage and employment information allows us to administer our programs efficiently and to avoid improper payments that can occur when we do not have such information. Reviews of post-entitlement cases show that substantial gainful activity (SGA)4 continues to be the leading cause of overpayments in the OASDI disability program. In fact, SGA-related overpayments in the OASDI program averaged approximately $500 million annually as of fiscal year 2022.5 Further, wage discrepancies, which reached an annual average of approximately $1.4 billion in improper payments as of fiscal year 2022, have been a leading cause of improper payments in the SSI program for more than a decade. ...

What About Occupational Information? Does Scientific Integrity Apply To That?

     From today's Federal Register:

The SSA is soliciting comments and suggestions from the public on the DRAFT Scientific Integrity Policy of the Social Security Administration (DRAFT SSA Scientific Integrity Policy). The DRAFT SSA Scientific Integrity Policy codifies expectations to preserve scientific integrity throughout SSA scientific activities, establishes key roles and responsibilities for those who will lead the agency’s scientific integrity program, and, as appropriate, establishes relevant reporting and evaluation mechanisms.

    Social Security uses occupational information in determining which disability claims to approve. The source it's using now mostly dates back to 1979! Everyone concedes that it's hopelessly out of date but they're still using it. They've been working on a replacement now for well over a decade but almost nothing has been released and the agency is extremely vague on what's going on and when they'll be finished. I'm not the only one who's convinced that they keep delaying releasing anything because the data doesn't jibe with what the agency wants it to say. I think they want to keep massaging the data until it says that they don't have to change who they're approving and who they're denying even a little bit. Am I being unfair to Social Security? They can always make a full release of the data collected to date and give a good explanation for the delay. Does anyone still believe that this remains a good faith effort to collect data?

Electronic Payroll Data Proposed Regs Advance

     Social Security's proposed rules on Use of Electronic Payroll Data To Improve Program Administration have been approved by the Office of Information and Regulatory Affairs (OIRA). They can now be published in the Federal Register for public comments.

Food And SSI

     In February of this year the Social Security Administration published proposed rule changes to omit food from in kind support and maintenance calculations for Supplemental Security Income benefits. Social Security has now asked that the Office of Management and Budget authorize publication of these changes as final rules.

PRW Time Period To Be Reduced From 15 Years To 5 Years

     From a notice that Social Security has scheduled for publication in the Federal Register:

We propose to revise the time period that we consider when determining whether an individual’s past work is relevant for purposes of making disability determinations and decisions. Specifically, we would revise the definition of past relevant work (PRW) by reducing the relevant work period from 15 to 5 years. This change would allow individuals to focus on the most current and relevant information about their past work, better reflect the current evidence base on changes over time in worker skill decay and job responsibilities, reduce processing time and improve customer service, and reduce burden on individuals.

    This is overdue by about 40 years but better late than never. It never made sense to tell disability claimants that they are not disabled because they can return to jobs they last held 12 years ago. Work skills just don't stick with people that long.

Good News For SSI Claimants

     From a notice that Social Security has scheduled for publication in the Federal Register:

We propose to expand the definition of a public assistance (PA) household for purposes of our programs, particularly the Supplemental Security Income (SSI) program, to include the Supplemental Nutrition Assistance Program (SNAP) as an additional means-tested public income maintenance (PIM) program. In addition, we seek public comment on expanding the definition to include households in which any other (as opposed to every other) member receives public assistance. We expect that the proposed rule would decrease the number of SSI applicants and recipients charged with in-kind support and maintenance (ISM). In addition, we expect that this proposal would decrease the amount of income we would deem to SSI applicants or recipients because we would no longer deem income from ineligible spouses and parents who receive SNAP benefits and live in the same household. These policy changes would reduce administrative burden for low-income households and SSA.

    Again, I'm not going to try to explain this. Just understand that it's good news for many SSI claimants.