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.
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. ...
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.
Social Security is trying to worm its way out of the federal courts applying the new rule changing past relevant work from 15 years to 5 by saying in a footnote to a Social Security ruling that it expected the courts to apply the law in effect at the time of the administrative decision.
I wrote earlier that I didn't think that Social Security was getting out of this problem with a simple footnote.
Here's a quote that may be of interest:
It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional . . . I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.
Chief Justice John Marshall wrote that in United States v. Schooner Peggy, 5 U.S. 1 (1801). You don't have to go back that far to find the same principle applied. Try Bradley v. Richmond School Board, 416 U.S. 696 (1974). Want a case where this was applied to Social Security? See Hicks v. Califano, 600 F.2d 1048 (4th Cir. 1979). That one is especially applicable because it was a case arising from the initial adoption of the grid regulations.
There won't be that many cases where the difference between 15 years and 5 years is outcome determinative, I don't know why Social Security wants to fight over these few cases. Get it over with and accept the voluntary remands.
For that matter, apply this at the Appeals Council. Don't apply res judicata to cases affected and grant reopenings within the two and four time periods allowed by law when requested.
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.
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. ...
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.
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.
The Office of Management and Budget (OMB) has approved final regulations on Intermediate Improvement to the Disability Adjudication Process, Including How we Consider Past Work. When published as a proposal these included a reduction in the time period for considering past relevant work from 15 years to 5. Expect to see the regulations in the Federal Register soon.
I hope the effective date isn't six months into the future.
The final rules on the Nationwide Expansion of the Rental Subsidy Policy for SSI Recipients have been approved by OMB and should appear in the Federal Register soon.
Social Security will publish final regulations to omit food from in-kind support and maintenance calculations for purposes of Supplemental Security Income tomorrow. The change will not become effective under September 30, 2024. That's an awful long lead time.
By the way, the notice contains the following language:
SeverabilityIn the event of an invalidation of any part of this rule, our intent is to preserve the remaining portions of the rule to the fullest possible extent. In particular, we intend the clarification of consideration of others in the household in 20 CFR 416.1131 [on the 1/3 reduction rule] to be severable, as it better explains our current policy and functions independently of the other changes reflected in this final rule. We also intend the clarification of constructive receipt of income in 20 CFR 416.1102 [defining what is income] to be severable, as it better explains our current policy and functions independently of the other changes reflected in this final rule.
The Social Security Administration has asked the Office of Management and Budget (OMB) to approve these final regulations:
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.
Here's a description of the first for which approval has been requested:
We propose to update our regulations to reflect that we may authorize direct payment of representative fees to an entity itself, not only to representatives working for an entity, as required by the decision of the Court of Appeals for the First Circuit in Marasco & Nesselbush v. SSA. In accordance with the Marasco ruling, we propose a process for paying an entity directly, which involves requiring registration for all entities who wish to receive direct payment of assigned fees. We also propose several measures to standardize registration, appointment, and payment processes for all representatives who wish to be appointed on a claim, matter, or issue with us. These proposed changes will enable us to pay fees directly to entities in a timely and efficient manner. In addition to helping us implement the Marasco decision, these provisions will increase appointed representatives’ access to our electronic services, reduce delays, and thus improve program efficiencies for all representatives.
We propose to develop intermediate improvements to reduce the burden in our current disability adjudication process as a step towards longer-term reforms to ensure our disability program remains current and supports equitable outcomes. Actions could include decreasing the years of past work we consider when making a disability determination, as well as other potential regulatory changes.
The development of this regulation was informed by a listening session conducted by our Office of Communications with advocacy groups representing claimants and beneficiaries.
The description of a packet of proposed regulations that the Social Security Administration has asked the Office of Information and Regulatory Affairs (OIRA) to approve for publication in the Federal Register:
We propose expanding the rental subsidy exception beyond the 7 states to which it already applies so that it applies nationwide. Accordingly, our nationwide policy would be that a business arrangement exists when the amount of monthly rent required to be paid equals or exceeds the presumed maximum value or the current market value, whichever is less. We expect that the proposed change would improve service delivery by making our policy uniform throughout the country and reducing administrative burdens for individuals seeking access to the Supplemental Security Income (SSI) program.
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.
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.
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.
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.
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.
From a notice that Social Security has scheduled for publication in the Federal Register:
On July 23, 2021, we issued a temporary final rule (TFR) with request for comments to lengthen the “close proximity of time” standard in the Listing of Impairments (the listings) for musculoskeletal disorders because the COVID-19 national public health emergency (PHE) caused many individuals to experience barriers that prevented them from timely accessing in-person healthcare. That prior TFR is effective until six months after the effective date of a determination by the Secretary of Health and Human Services (HHS) that a PHE resulting from the COVID-19 pandemic no longer exists. The Secretary of HHS made that determination, and the COVID-19 national PHE ended on May 11, 2023. However, healthcare practices in a post-PHE world are still evolving. We are therefore issuing this new TFR to extend the flexibility provided by the prior TFR until May 11, 2025, so we can evaluate changes in healthcare practices and determine the proper “close proximity of time” standard for the musculoskeletal disorders listings. ...
I'm not going to try to explain this other than to say that it's modestly good news for disability claimants with orthopedic problems -- a slight reduction in harshness is how I would put it.
