Social Security Wants To Study Attorney Fee Alternatives

     From a contracting notice posted by the Social Security Administration:

... Disability claimants who have an Appointed Representative (AR) have an increased likelihood of award at the hearings level, but not earlier in the disability adjudication process.  Experts have suggested that the current attorney fee structure, under which representatives receive 25 percent of claimants’ back benefits up to $6,000, encourages representatives to work with claimants later in the disability adjudication process. 

In April of 2019, SSA convened a Technical Expert Panel (TEP) to discuss a potential demonstration that would alter the incentives for representatives to work with applicants at the reconsideration level of adjudication.  The TEP discussed alternatives to the current attorney fee structure as well as opportunities to improve representatives’ access to case information and documentation.  The TEP provided SSA with recommendations to test as part of a future demonstration to increase representation at the reconsideration level and improve the quality of that representation to help SSA arrive at the correct outcome as soon as possible.

SSA is considering a few options for alternative fee structures. One, a minimum fee, that would ensure that ARs receive at least a certain amount for all awarded claims, or 25 percent of back benefits, whichever is greater, up to $6,000. This minimum amount would likely be around $2,500. We consider this level because it is close to the current average fee of $2,900. In theory, this guaranteed minimum could induce ARs to take some claims that they otherwise would not have taken, while minimizing the risk of paying extra for claims that the ARs would have taken under current policy.

A second option is a flat fee for awarded claims. This flat fee would likely be around $3,000, for the same reasons mentioned earlier. In this case, the flat fee is slightly above the average payment to increase representation. 

The AR Demonstration (ARD) will test at least one alternative fee structure and will evaluate the impact and quality of representation at the reconsideration level of adjudication and other outcomes. ...

     See also this study that was completed last summer.
     The interesting thing is that raising the fee cap isn't even being considered. I think that would help more claimants get representation than a minimum fee. The problem isn't so much that attorneys are scared of getting a low fee as it is that attorneys are scared of getting no fee. Raise the minimum fee and the risk-reward ratio is altered so that we take on more iffy cases. I think this proposal would only affect my behavior in cases such as a claimant who is already receiving early retirement benefits and that's not that much left to get for them if disability benefits are approved. It would not affect my behavior in cases at the initial and reconsideration levels since I already take on those cases. It might affect the behavior of others who don't take on cases at the initial and reconsideration levels but I think most already are taking on cases at the initial and reconsideration levels. Right now the group that has the most difficulty obtaining representation are those under the age of 50. This proposal would do nothing for them. The flat rate fee would be especially bad since it would make the risk-reward ratio even worse. We would still have the same risk but the reward for a win would be less. It's the risk-reward ratio that Social Security needs to be looking at.

Update On The Larson Bill

     From Politico:

... Rep. John Larson of Connecticut, a senior Democrat on the House Ways and Means Committee, has a bill, H.R. 860 (116), that would hike Social Security benefits across the board, paired with tax increases in the neighborhood of $1 trillion over a decade. Larson has pushed for Ways and Means to mark up his measure and for the full House to take up the bill — so far unsuccessfully, despite the fact that the vast majority of House Democrats have signed on to the proposal.

Larson’s fellow Democrats are especially queasy about the impact that his measure’s hefty payroll tax increases would have on lower-income workers, which is one reason the measure — which would only be a messaging bill this year, because it stands little chance of getting much attention in the Senate — has stalled in recent months. 

Larson said Wednesday that he’s changing the bill in response to his colleagues’ concerns about lower-income workers. That includes employing the Earned Income Tax Credit to ensure that certain workers making $50,000 or less essentially won’t owe any payroll taxes and expanding the EITC eligibility for childless workers, as Ways and Means did in legislation last year. He added that he fully expects Ways and Means to consider the measure in the coming weeks. (It should be noted that Larson previously said he expected a markup to happen later in 2019.)  ...

     Larson has a tight focus on his bill. Is that somehow preventing him from scheduling traditional oversight hearings? I don't know why it would but I have no other explanation for the lack of oversight hearings. It's not like his bill has any chance of becoming law in this Congress.

The Marriage Penalty

     From the Columbus Dispatch:

People with developmental or intellectual disabilities often face the prospect of losing a portion of their disability benefits if they marry. Sherri and Bill Adams finally were able to wed this month after a years-long fight, and they’re pushing for a law to help others. ...

But the so-called marriage penalty remains an obstacle for many couples in the United States. The new Mr. and Mrs. Adams, who took their fight to marry public with an online petition drive in 2016, vow to keep pushing for what they and others see as a matter of civil rights.

“Although we found a loophole in our situation, we will not give up,” Bill said. “There are a lot of couples who are still unable to get married, and that is still not right.”

The disability community’s long-running battle for change gained support last year with bipartisan legislation introduced in Congress to protect the federal benefits of people with intellectual or developmental disabilities who wish to marry. If enacted, the Marriage Access for People With Special Abilities Act would keep Supplemental Security Income benefits for an individual from being affected by marital status, and ensure access to Medicaid benefits as long as the person qualifies for SSI. ...

After Sherri went to the Social Security office last year for a new card, she and Bill discovered that they could avoid a devastating reduction in their modest benefits (together they receive less than $2,000 a month) if Sherri received a portion of her disability income as a survivor benefit based on her deceased father’s Social Security.

Not many couples have that option or even know it exists.

Licking County residents Jordan Boring, 36, and Sarah Burkett, 34, had a lovely wedding in December 2018, but the ceremony didn’t culminate in a legal union.

“It’s not fair,” said Margie Goodin, a former site coordinator at the disabilities-services program where the two met. “All they want is to be able to spend every day together.”

Jordan and Sarah, both of whom have Down syndrome, opted for a commitment ceremony to preserve crucial benefits. They also have not been able to get a place together because combining households could jeopardize their benefits, said Sarah’s mother, Patti Burkett. ...

      There are actually two penalties. If both members of a married couple receive Supplemental Security Income (SSI), they receive a lower amount than if they are not married. It's worse for Disabled Adult Child (DAC) benefits on the account of a parent. DAC recipients become completely ineligible for benefits after marriage. However, if both are eligible for DAC they can keep their benefits after marriage. It appears that Mr. and Mrs. Adams are eligible for DAC and, therefore, able to keep their benefits.

RRB Case At Supreme Court May Have Implications For Social Security

     The Supreme Court has agreed to hear Salinas v. Railroad Retirement Board, a case that may have implications for Social Security. Maybe before describing Salinas, I need to make sure everybody knows what the Railroad Retirement Board (RRB) is. RRB is an agency created around the same time as what was then called the Social Security Board. RRB administers some benefits such as unemployment that the Social Security Administration (SSA) does not now administer. However, in most respects the RRB statutes and regulations are almost identical to SSA's. Because it's much smaller, it's almost always RRB that is affected by SSA litigation. Salinas, however, is the exception to that pattern. Here's the stated issue in Salinas:

Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a “final decision” subject to judicial review.

     If you're an experienced Social Security attorney that issue should sound familiar. It has come up in Social Security litigation. SSA has argued over the years that a refusal to reopen a prior decision cannot be reviewed in the federal courts because it's not a final decision after a hearing even though the decision is final and even though there was a hearing. That's the argument that RRB has made in Salinas. The recent Supreme Court decision in Smith v. Berryhill suggests that Salinas may have a case.

Ways And Means Committee Chairs Slam Proposal To Alter Grid Regs

    A press release:

Today, Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL) released the following statement regarding reports of a draft Social Security Administration (SSA) rule that would narrow the eligibility criteria for Social Security and Supplemental Security Income (SSI) disability benefits: 

“Yet again, the Trump Administration is going out of its way to make life more challenging for the most vulnerable people in our country. The United States government already has extremely stringent disability standards. In fact, fewer than four in 10 applicants are found eligible for Social Security disability benefits, even after all levels of appeal. This rule would further restrict eligibility, making it even harder for disabled people to access the essential income they’re qualified to receive. We are particularly alarmed that news of this latest proposal comes on top of the Administration’s recent efforts to cut off benefits for severely disabled people whom the agency already found eligible. 

“Instead of working to strip disability benefits from people who qualify, the SSA should focus on its truly pressing problems. Resources should go toward cutting lengthy wait times on the phone and at field offices, eliminating benefit backlogs, and hiring personnel to improve the agency’s lacking services.

“We strongly urge the Trump Administration to reject this cruel proposed rule and reassess SSA’s priorities.”

To Add To The Mystery

     The biggest mystery in the Social Security world is what is happening with the rate at which claims for Social Security disability benefits are being filed. There was a big run-up between about 2008 and  2010 followed by a prolonged decline. Various theories have been propounded but no one has a good handle on this. No, declines in unemployment cannot be the only explanation. If that were the case, the decline would have ended some time ago.

     Jeffrey Schuh and Richard Leavitt gave a presentation to the Technical Panel on Assumptions and Methods of the Social Security Advisory Board on Disability Insurance: The Private Sector. It included the table shown below. LTD means Long Term Disability, that is private insurance, mostly an employee benefit. It's not stated in the presentation but I think EP stands for Elimination Period, that is the length of time after disability begins before LTD payments begin. EP-90 is a 90 day elimination period and EP-180 is a 180 day elimination period.

    

     Note that this table would not include anyone laid off since they would not be eligible for LTD as an employee benefit. These would mostly be white collar jobs since blue collar employees aren't  often covered by LTD, unless they're union workers and maybe not then.

     This table shows a very significant decline in disability claims in a group that was little affected by unemployment rates and which was unaffected by circumstances at Social Security, at least in the rate at which they filed LTD claims. This is a table of the incidence rate per one thousand so birth rates in the 1960s are irrelevant. In general, this table just adds to the mystery.

Don’t Do The Crime If You Can’t Do The Time

     From the Palm Beach Post:

 A conservative media commentator who was crowned Mrs. Florida 2016 is headed to prison after a federal judge on Thursday said he wanted to send a message that if you steal from the U.S. government, you're going to jail. 

Unless Karyn Turk can convince an appeals court that she doesn't deserve to spend a month behind bars for stealing her elderly mother's Social Security checks instead of using the money to pay for nursing home care, the Highland Beach, Fla., resident must report to prison on March 2. ... 

Since pleading guilty in September to a misdemeanor charge of Social Security fraud, she has been attacked on social media, said her attorney David Tarras. 

Turk, who last year was named champion of the year by Best Buddies, a teen mentoring group, has lost her position on various philanthropic groups, he said. 

The damage to her reputation and her status in political, business and social circles has been enormous, he said. ... 

Without the ability to hob-nob in the community, travel to interview celebrities for YouTube broadcasts and to host fundraisers, like those she held for now convicted political operative Roger Stone, her career is dead, he said. 

"Her livelihood is based on networking and being a social media commentator," Tarras said. 

Besides, he argued, she came to court with a check for $46,000 to reimburse the government for the money she stole. That, he said, should be enough.

Reinhart [the judge] disagreed. While noting that Turk had lived an otherwise law-abiding life and done good works, he said her crime was a serious one. She shouldn't be able to "buy her way out of jail" by simply writing a check, he said. ...

Proposal Under Consideration Would Increase Grid Rules By Five Years

     The Wall Street Journal article on the plan to alter Social Security’s grid regulations used in determining disability is now available outside the paywall. Here are some excerpts:

... “Evidence shows that in the modern economy the vocational impacts of age, education and work experience are markedly different from what they were when we published the current vocational regulations,” according to the text dated Oct. 18. ... 

The proposed rule ... would no longer assume age seriously affects a person’s ability to adapt to simple, entry-level work. It would raise the age at which education and work experience are considered in determining eligibility to 55, from 50. The new rule would also update data on occupational skills that the agency uses to determine eligibility, based on new information from the Bureau of Labor Statistics. ... 

A person familiar with the proposal said it has been a top priority for some Social Security Administration officials, who have met at least twice a month with White House and OMB officials. While some of those officials have embraced potential changes to vocational factors, others were concerned the agency hasn’t yet provided enough data or analysis to support the rule change, the person said. ...

     When we heard of this idea before during the George W. Bush administration the rumor was of a three year increase in the age categories, not a five year increase. This new proposal seems in line with the maximalist instincts of the Trump Administration. 

Trump Plan To Make It Harder To Get Social Security Disability

     The Wall Street Journal is reporting that the Trump Administration is working on a plan to make it harder to qualify for Social Security disability benefits, apparently by revising the grid regulations. The paper says it has seen a copy of the draft.

     You have to wonder who leaked this. Was it someone in the Trump Administration proud of the plan? The fact that this appeared in the Wall Street Journal suggests that. That's crazy since this is bound to be unpopular with far more people than it's popular with. It's also possible that this was leaked by an opponent who wants to make it clear what the stakes will be in this November's election although that seems unlikely. You have to wonder if this, like the assassination in Iraq, is an attempt to curry favor with an impeachment juror.

     In any case, there's virtually zero chance this will happen before the election. The provisions of the Administrative Procedure Act make that essentially impossible. Also, Social Security would have to allow publication of the new Occupational Information System it's been keeping under wraps. The agency's website suggests that's not imminent.

Initial And Recon Allowance Rates

     Social Security has posted numbers on the disability claim allowance rates in each state at the initial and reconsideration levels of review. Note the disparities. Click on each page to view full size.