Regulatory Agenda

      Federal agencies are required to publish quarterly summaries of agency rules under development. Not all of these come to pass and it can take time, often years, for the rules to be adopted. We shall see but delay may be a bigger problem now with reduced staffing levels and the loss of experienced employees. Basically, current Social Security management may have what I would consider evil intentions  but have little idea how to be evil or have the staff to accomplish the evil.

     Anyway, here’s Social Security’s most recent list. You can read a brief and often maddeningly elliptical summary of what is being considered by clicking on the RIN link for the rule.

Agency	Agenda Stage of Rulemaking	Title	RIN
SSA	Proposed Rule Stage	Combatting Fraud and Similar Fault to Strengthen the Integrity of Social Security	0960-AI10
SSA	Proposed Rule Stage	Civil Monetary Penalties, Assessments, and Recommended Exclusions	0960-AI49
SSA	Proposed Rule Stage	Improvements to the Disability Adjudication Process: Sequential Evaluation Process	0960-AI67
SSA	Proposed Rule Stage	Rescinding the Burdensome Use Restrictions of Dedicated Accounts	0960-AI92
SSA	Proposed Rule Stage	Rescission of Changes to the Definition of a Public Assistance Household	0960-AI94
SSA	Proposed Rule Stage	Removing Bench Decisions To Improve Decision Efficiency and Accuracy	0960-AI98
SSA	Proposed Rule Stage	Incorrect Terminology in Regulatory Text; Correction	0960-AI99
SSA	Proposed Rule Stage	Setting the Manner of Appearance for Disability Hearings	0960-AJ00
SSA	Proposed Rule Stage	Notice of a Hearing and How to Request a Hearing Before an Administrative Law Judge	0960-AJ01
SSA	Final Rule Stage	Revised Medical Criteria for Evaluating Cardiovascular Disorders	0960-AI43
SSA	Final Rule Stage	Penalty Inflation Adjustments for Civil Monetary Penalties	0960-AI72
SSA	Final Rule Stage	Extension of Expiration Dates for 13 Body System Listings	0960-AI95
SSA	Final Rule Stage	Rescission of the Extension of the Flexibility in Evaluating "Close Proximity of Time" to Evaluate Changes in Healthcare	0960-AI96

Approval Sought For Cardiovascular Listings Changes

      The Social Security Administration has asked for White House approval of proposed changes to its cardiovascular listings.  There’s no way of knowing what’s in the proposal.

Proposed Change In Public Assistance Household

      Last year Social Security changed its regulations to alter the definition of a public assistance household in ways that benefit Supplemental Security Income recipients. The agency has now submitted new proposed regulations to the Office of Management and Budget to alter what was done. We don’t have the text of what was submitted but I’ll take a guess that the Trump Administration wants to completely undo it.

     The odd thing about what has been posted is that it’s labeled an Executive Order but it certainly seems like it would have to be a change in the regs. Also, they don’t give prior notice of Executive Orders.

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.

Overpayment Changes Written In The Sand?

    From a press release issued by Social Security on March 20 of this year:

Social Security Commissioner Martin O'Malley today announced he is taking four vital steps to immediately address overpayment issues customers and the agency have experienced. ...

Our deeper understanding of the complexities of this problem has set us on the following course of action:

1. Starting next Monday, March 25, we will be ceasing the heavy-handed practice of intercepting 100 percent of an overpaid beneficiary's monthly Social Security benefit by default if they fail to respond to our demand for repayment. Moving forward, we will now use a much more reasonable default withholding rate of 10 percent of monthly benefits — similar to the current rate in the Supplemental Security Income (SSI) program.
2. We will be reframing our guidance and procedures so that the burden of proof shifts away from the claimant in determining whether there is any evidence that the claimant was at fault in causing the overpayment.
3. For the vast majority of beneficiaries who request to work out a repayment plan, we recently changed our policy so that we will approve repayment plans of up to 60 months. To qualify, Social Security beneficiaries would only need to provide a verbal summary of their income, resources, and expenses, and recipients of the means-tested SSI program would not need to provide even this summary. This change extended this easier repayment option by an additional two years (from 36 to 60 months).
4. And finally, we will be making it much easier for overpaid beneficiaries to request a waiver of repayment, in the event they believe themselves to have been without any fault and/or without the ability to repay.

        This has all been implemented via an Emergency Message and changes in the agency's POMS manual. Social Security says it has reduced the number of people affected by withholding the entire monthly check from 46,000 to 7,000. The problem is that none of these changes have the force and effect of law, as a regulation would. Everything O'Malley has done on overpayments could be easily undone by a simple memo. Regulations can be amended but the process takes time. It's much less likely to be done. Maybe the agency was working on regs and didn't get finished. Maybe it was thought that a subsequent administration wouldn't change this. Maybe they won't but I wouldn't be surprised if this one does. Have you noticed that the incoming administration seems a little bloody-minded?

    One other thing that O'Malley talked about was a statute of limitations on the collection of overpayments. I thought he could have done this by a regulation but, apparently, his agency eventually decided that Congress would have to amend the statutes, which, of course, is impossible.

Electronic Payroll Data Rules Advance

     Social Security has asked for Office of Management and Budget approval to publish final rules on "Use of Electronic Payroll Data To Improve Program Administration." This has not been controversial. It is the only Social Security regulatory package awaiting OMB approval. Without OMB approval before the change of administration, this one could languish for months if not years.

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.

About That Footnote

     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.

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.

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.

Past Relevant Work Regs Advance

     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.

New SSI Regs Approved

      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.

Final Regs To Omit Food From In-Kind Support And Maintenance To Become Effective On September 30 But SSA Seems To Be Worried About Litigation

     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:

Severability

In 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.

Definition Of Public Assistance Regulations Advances

      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.