Is A Replacement For The Grid Regs Coming?

      There are rumors that at least some portion of Social Security's upper level management wants to move ahead with a plan to replace the "grid regulations" that provide a framework for disability adjudication or at least to amend them. We can't know whether the Commissioner wants this or whether the Office of Management and Budget (OMB) will be willing to approve it. It would be a big move if it happens.

     In a sense, I'm happy to get some movement. The obsolescence of the Dictionary Of Occupational Titles (DOT) that formed the backbone of the grid regs has made some move inevitable. In a sense it's hard to understand how we've gotten this far without replacing the grid regs. On the other hand, everyone, and I do mean everyone, has been scared of what follows the grid regs. 

    The rumors about what would replace the grid regs -- something basically saying that if you can perform sedentary work you're not disabled regardless of your age, education or work experience or only if you're 55 or older -- fills me with great concern. However, there may be nuances in what's under consideration that we don't know.

    Here are some thoughts that occur to me.

I -- This Won't Happen Overnight 

    Under the Administrative Procedure Act there is a process to go through before new regulations can be adopted. The first step is for the agency to write up the proposed regs and their justification in a document called a Notice of Proposed Rule-Making or NPRM. This will be a major proposal so the NPRM should be a fairly lengthy, well reasoned document. Of course, the Trump Administration is known for slipshod work so who knows? 

    The Commissioner must approve the NPRM. He's a Social Security novice so this complicated proposal will be difficult for him to review. If there's anyone with any sense surrounding him at Social Security he's going to be warned that the NPRM would be important and controversial. The problem is that an environment of intimidation has been created. Can the Commissioner receive good advice in such an environment?

    Once the Commissioner approves the NPRM, it is sent to OMB, specifically to the Office of Information and Regulatory Affairs (OIRA) for approval. OIRA is the most important agency you’ve never heard of. I'd like to think that there are still enough professionals at OIRA to warn that the NPRM will be highly controversial and could have disastrous political results once it comes into effect but they may also be intimidated or ignored.

    If OMB approves the NPRM, it is published in the Federal Register and the public is allowed to comment on the proposal. There will be literally thousands of comments on something as controversial as this. These comments are all supposed to be read and analyzed. Dozens of different issues will be raised.  The agency must respond to each of these issues in the Federal Register if it is to finally adopt the proposed regs. The responses have to be thought out carefully since everything about these regs will be challenged in federal court. You can't publish one justification in the Federal Register and try another one in federal court. At least that would be a bad plan. Social Security's staff has been greatly thinned out, including its staff involved in rule-making. In the past I would have expected it to take over a year to deal with the comments made on such a major NPRM. I have no idea now. This thing could easily take longer than Trump has left in office. It would be amazing if this could be finished before the next Congress begins.

II -- It Isn't Over Once The NPRM Is Adopted

    Major regulations are difficult to implement. Once you start training staff on the new regs, questions come up that you never considered. There may be questions that you just finessed in the Federal Register without ever giving a real answer but you can’t finesse them anymore. The answers to these questions can have a major impact on the effect of the regs. The questions are likely to be technical enough that they will have to be answered by experienced staff rather than political appointees. Experienced staff will probably be a lot less hostile to claimants than the people who thought up the plan.

III — The Courts Get Their Say

    As I've said above, every facet of a replacement for the grid regs will be examined closely by the federal courts. You might think that the federal courts, or at least the Supreme Court, would be highly sympathetic to the Trump Administration but that's not something you can assume. Those who have taken Social Security cases to the federal courts can tell you that you can't predict how Social Security cases will be decided based upon which President nominated the judge or judges hearing the case.

    One huge issue presented by a plan to effectively remove consideration of age, education and work experience is that the statute specifically requires consideration of age, education and work experience. How do you get around that? You could say that "in our adjudicative experience" none of those factors matter. Social Security has long used that phrase "adjudicative experience" as an all purpose explanation for anything they want to do but for which they lack an explanation. I don't see how that will cut it here. There's too much at stake. Is there a strong argument for what is proposed?

    There's also the issue of the reliability of whatever occupational information system (OIS) Social Security puts forward as a basis for what they're doing.  The OIS in question has been developed in secret under the command of the Social Security Administration. There have been serious questions about Social Security's OIS plan for, how long has it been, 20+ years? It sounds exactly like the sort of thing the federal courts would view with deep suspicions.

IV. The Administration Should Be Wary Of Political Consequences 

    Anything that dramatically reduces the percentage of disability claimants approved for benefits would be extremely controversial. I'm one of the few people still around who can tell you that the most controversial thing the Reagan Administration did was to make it much more difficult to get on disability benefits and to stay on them once they were approved. If this Administration wants to proceed with an anti-claimant plan, it is poking a hornets nest, especially if it is dealing with a House of Representatives or Senate controlled by Democrats.

    There are reasons this didn't happen in the prior Trump Administration. 

V -- The Administration Should Be Wary Of Unintended Consequences 

    I was working for Social Security in a position then called staff attorney, writing decisions for an ALJ, when the grid regs came into effect in 1979. There was concern leading up to the effective date that the grid regs would greatly reduce the number of disability claims approved. I wondered what the effect would be. As I recall, I pulled the last 100 decisions I had drafted and looked to see what effect the grid regulations would have had on them. I found that it would have changed five decisions from a denial to an allowance with none going in the opposite direction. I didn't put much effort into spreading what I had found but I think word did get about and allayed some fears. As it turned out, my unscientific study was right on the money. The allowance rate did go up by about 5%.

    Trump Administration officials may want to be evil but do they know enough about Social Security to accomplish the evil they have in mind? Back in 1979 I'm pretty sure that higher Social Security officials expected lower allowance rates under the grid regs but that's not what they got. The devil is in the details and the details are the specialty of people like me, not the Commissioner and his inexperienced aides.

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. ...

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.

Proposed Regs On ISM

      I’m not going to try to explain it but tomorrow Social Security will publish proposed regulations to alter the In-Kind Support and Maintenance (ISM) rules that reduce Supplemental Security Income benefits by one-third if an individual receives reduced cost food and shelter. The proposal is to apply nationally standards that already exist in several states as a result of litigation. The proposal would reduce the number of individuals affected by the ISM rules. That’s a good thing. Of course, the ISM rules ought to be abolished altogether but that would take legislation.

     Let’s get this into effect well before next year’s election.

Proposed Rule Recognizing The Fact That There Are Such Things As Law Firms

     A Notice of Proposed Rule-Making (NPRM) from today's Federal Register:

We propose to revise our regulations to enable us to directly pay entities fees we may authorize to their employees, as required by the decision of the United States Court of Appeals for the First Circuit (First Circuit) in Marasco & Nesselbush, LLP v. Collins. To make direct payments, issue the necessary tax documents, and properly administer these rules, we propose to require all entities that want to receive direct payment of assigned fees and all representatives who want to be appointed on a claim, matter, or issue to register with us. We also propose to standardize the registration, appointment, and payment processes. We expect that this proposed rule will help us implement the changes required by the Marasco decision, increase accessibility to our electronic services, reduce delays, and help us prepare for more automation, thereby improving our program efficiencies.

    This should have been done over 30 years ago but better late than never. 

    By the way, I have no idea how this got into the Federal Register. These things have to be approved by the Office of Management and Budget and OMB never listed this as pending approval on its website. I don't think I've ever seen this before. It's not listed now as having been approved by OMB even though the NPRM itself shows that OMB was involved.

Another Set Of Proposed Regs To Decrease The Number Of SSI Recipients Charged For In-Kind Support And Maintenance

     Social Security has asked the Office of Management and Budget to approve proposed regulations to:

We propose expanding the definition of a Public Assistance (PA) Household to include additional means-tested assistance programs. This will decrease the number of applicants and recipients charged in-kind support and maintenance, which will simplify living arrangement development within the Supplemental Security Income (SSI) program.

    This has to be approved by OMB and then published in the Federal Register for comments. The agency must consider the comments and possibly revise the proposal. Then they must again obtain approval from OMB before it can again be published in the Federal Register as a final rule. This can easily take two years or more. If a Republican is elected President in 2024, this proposal may die.

NPRM On FOIA

     The Social Security Administration posted a Notice of Proposed Rule-Making (NPRM) in the Federal Register today to amend its Freedom of Information Act (FOIA) regulations to make them more consistent with 2016 changes in the FOIA and with recent guidance from the Attorney General.

Making It Official

     The Social Security Administration has posted a Notice of Proposed Rule-Making (NPRM) in the Federal Register to make official the availability of telephone and video hearings in Social Security cases.

Proposed New Cardiac Listings

    The Social Security Administration has published proposed new Cardiovascular Listings in the Federal Register today. This is only a proposal. Comments may be made until August 29, 2022.

Congressional Democrats Oppose Plan To End Use Of Independent ALJs

     A press release:

Top Democrats from the House Ways and Means Committee, House Committee on Oversight and Reform, House Judiciary Committee, and Senate Finance Committee yesterday called for the Trump Administration to withdraw a Social Security Administration (SSA) proposal that would make it more difficult for eligible Americans to receive their Social Security benefits. The proposed changes to the SSA appeals hearing process would compromise claimants’ and beneficiaries’ due process and potentially limit their access to their earned benefits, put unqualified judges in control of deciding appeals cases, and contradict the congressional intent of the law governing such proceedings.

“SSA’s proposed rule would erode due process for Americans who are appealing a denial of Social Security or Supplemental Security Income (SSI), threatening access by eligible individuals to disability, retirement, and survivors’ benefits,” the members wrote in their comment letter. “Replacing independent Administrative Law Judges (ALJs) with Administrative Appeals Judges (AAJs) is contrary to congressional intent for impartial SSA hearings, and it is not supported by the rationale asserted in the proposed rule.”

The letter was signed by House Ways and Means Committee Chairman Richard E. Neal (D-MA), House Committee on Oversight and Reform Chairwoman Carolyn B. Maloney (D-NY),  House Judiciary Committee Chairman Jerrold Nadler (D-NY), House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT), House Ways and Means Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL), House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law Chairman David N. Cicilline (D-RI), Senate Finance Committee Ranking Member Ron Wyden (D-OR), and Senate Finance Social Security Subcommittee Ranking Member Sherrod Brown (D-OH).

The full letter can be found HERE.

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. ...

Proposal To Have AAJs Hold Hearings

     From a Notice of Proposed Rule-Making (NPRM) that will appear in tomorrow's Federal Register:

... We propose to clarify that an AAJ [Administrative Appeals Judge] from our Appeals Council may hold a hearing and issue a decision on any case pending at the hearings level under titles II, VIII, or XVI of the Act. Just as ALJs [Administrative Law Judges] have the authority to hold hearings on a variety of disability and non-disability claims, we would not limit the kinds of claims that AAJs could hear. AAJs would be required to follow the same rules as ALJs, and the hearings they hold would apply the same due process protections as hearings held by our ALJs. ...

     This is only a proposal. The public may comment on the proposal. Social Security must consider the comments. If the agency wishes to go ahead with final regulations, they have to submit them to the Office of Management and Budget (OMB) for approval. This is a process that ordinarily takes many months.
     I have heard recently that the Appeals Council is seeking "decision-writers." In the past, the category of employees reviewing Appeals Council filings and writing Appeals Council decisions has been called "analyst." Decision-writer is the job title for those writing decisions for ALJs. Hiring decision-writers makes sense if AAJs will soon start holding hearings but I don't see how that will happen, given the length of time it takes to go from the NPRM to final regulation stage. Could the AAJs start holding hearings under the framework of the current regulations?
     As a workload matter, this NPRM makes no sense. The ALJs are rapidly working off their backlog. I haven't seen any improvement in the Appeals Council backlog. I think you have to assume that there's something about ALJs that Social Security management doesn't like.
     By the way, this NPRM was cleared by OMB back in May. It's been sitting there, waiting for the Commissioner's approval for more than seven months. I don't think it's a coincidence that this gets published just before Christmas when it will get less attention.

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 Advance Designation Of Rep Payee

     From a notice from the Social Security Administration that will appear in tomorrow's Federal Register:

The Strengthening Protections for Social Security Beneficiaries Act of 2018(Strengthening Protections Act)requires us to promulgate regulations specifying the information Social Security beneficiaries and applicants must provide to designate a representative payee in advance of our determination that the beneficiary needs a representative payee.We propose to revise our rules to satisfy this requirement,and to specify that we will allow individuals to designate in advance one or more potential representative payees. We also explain how we propose to consider an individual’s advance designation when we select a representative payee.

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.

Proposed Changes To Digestive And Skin Disorder Listings

     The Social Security Administration has published a Notice of Proposed Rulemaking (NPRM) to revise its Listing of Impairments for digestive and skin disorders. This is only a proposal. The public can comment on it. The agency must consider the comments before adopting a final version.

Proposed Regulations On Inability To Communicate In English And A Foreshadowing Of Something Bigger

     Social Security has posted proposed regulations on removing inability to communicate in English as an education category in determining disability. This is only a proposal. The public can comment on it. Social Security is supposed to consider the comments. Congressional opposition can sometimes head off proposed regulations. Sometimes, the agency change its mind or there's a change of administrations before proposed regulations can be finalized.

     Note the following language from the explanation of the proposal which may foreshadow more consequential changes:

The increase in labor force participation by individuals who lack English proficiency may be in part due to the increase in low-skilled work in the national economy. In 2014, our Office of Research, Evaluation, and Statistics (ORES) prepared an Evidence Synthesis consolidating information from research we commissioned and other available research for the purposes of modernizing our vocational regulations. ORES' literature review on the vocational factor of education indicates that with the introduction of new technology replacing moderately skilled workers, there are fewer moderately skilled jobs and higher numbers of low and high skilled jobs.

     I've given Social Security's link to the "Evidence Synthesis" but I'm not seeing it there.
     This could foreshadow changes to Social Security's "grid" regulations used in determining disability that would greatly disadvantage individuals who lack job skills. It could even be a sign that they want to abolish the grid regulations. We should not underestimate the maximalist impulses of the Trump Administration or its willingness to act in the absence of any evidence supporting its actions.
     In my experience, I've not seen higher numbers of low skilled jobs. My impression is that the exact opposite is the case. The assembly jobs that used to be widely available to people who can only handle simple work have largely disappeared from the U.S. economy. I've seen nothing else picking up the slack.

Proposed Regs On Removing Inability to Communicate in English as an Education Category Clear OMB

     The Office of Management and Budget has cleared a packet of proposed regulatory changes that the Social Security Administration had submitted on Removing Inability to Communicate in English as an Education Category. This can now be published in the Federal Register as a Notice of Proposed Rule Making (NPRM). After the NPRM is published, the public can comment. Congress can weigh in on the proposal.

Social Security Proposing Mandatory Video Hearings

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

We propose to revise our rules to explain that the agency retains the right 

to determine how parties and witnesses will appear at a hearing before an administrative law judge (ALJ) at the hearing level of our administrative review process, and we will set the time and place for the hearing accordingly. ... 

We propose that parties to a hearing will not have the option to opt out of appearing by the manner of hearing we choose.  ...

     This is a proposal. The public can comment on it. Congress can’t prevent its adoption but can certainly weigh in on it. The new Democratic  majority in the House could make Andrew Saul pay a price for going ahead with it. Expect a House Social Security Subcommittee hearing on this issue next year.