Some Covid-19 Tidbits From SSA

     I found these recently added items on Social Security's Covid-19 website:

... I received financial assistance under the CARES Act Higher Education Emergency Relief Fund. Will this affect my Supplemental Security Income payment?

Date: June 1, 2020

We do not consider Higher Education Emergency Relief Fund financial assistance as income or a resource for SSI purposes. Receipt of this assistance will not affect your SSI payment. ...

Can I enroll in Medicare?

Date: June 2, 2020

If you already have Medicare Part A and wish to sign up for Medicare Part B under the Special Enrollment Period (SEP) due to a loss of employment or group health coverage, please complete form CMS 40-B, Application for Enrollment in Medicare - Part B (Medical Insurance) along with the CMS L564-Request for Employment Information and gather proof of employment, Group Health Plan (GHP), or Large Group Health Plan (LGHP).

You have three options to submit your enrollment request under the Special Enrollment Period. You can do one of the following:

• Go to Apply Online for Medicare Part B During a Special Enrollment Period and complete CMS-40B and CMS-L564. Then upload your evidence of Group Health Plan or Large Group Health Plan.
• Fax your forms to 1-833-914-2016.
• Mail your CMS-40B, CMS-L564, and evidence to your local Social Security field office.

Note When completing the CMS-L564

• State on the form “I want Part B coverage to begin (MM/YY)”
• If possible, your employer should complete Section B.
• If your employer is unable to complete Section B, please complete that portion on behalf of your employer without your employers signature and submit one of the following forms of secondary evidence:
• income tax form that shows health insurance premiums paid;
• W-2s reflecting pre-tax medical contributions;
• pay stubs that reflect health insurance premium deductions;
• health insurance cards with a policy effective date;
• explanations of benefits paid by the GHP or LGHP; or

• statements or receipts that reflect payment of health insurance premiums. ...

Impostor Scams Eating Up Man Hours

     From The Social Security Administration’s Response to Telephone Imposter Scams, a report by Social Security's Office of Inspector General (OIG):

... The rise in SSA-related imposter scams primarily affected its field office and national 800-Number teleservice center staff. In Fiscal Year (FY) 2019, SSA estimated its 800-Number staff handled about 854,000 scam-related calls. Also, in FY 2019, the OIG received about 65,000 scam-related allegations from SSA staff—an over 1,000-percent increase over the number of similar allegations SSA staff sent in FY 2018.

Time spent responding to scam-related inquiries and making fraud referrals deflected staff from completing their normal workloads. SSA estimated it spent over 100 workyears in FY 2019 on these and other scam-related activities at a cost of $8.4 million. Per SSA, it takes 100 workyears to process 6,000 initial disability claims, 43,000 retirement claims, or 270,000 Social Security number card requests. ...

SSI Annual Report

     From the Annual Report of the Supplemental Security Income Program just filed:

• By 2044, the end of the 25-year projection period, we estimate that the Federal SSI recipient population will reach 8.4 million. The projected growth in the SSI program over the 25-year period is largely due to the overall growth in the Social Security area population, though the growth in the SSI recipient population is projected to be somewhat slower than the growth in the Social Security area population.

• As a percentage of the total Social Security area population, the number of Federal SSI recipients decreased slightly from 2.40 percent in 2018 to 2.37 percent in 2019. We project this percentage to gradually decline throughout the 25-year projection period, reaching 2.17 percent of the population in2044. This occurs for several reasons, including that the percent of the population potentially eligible for SSI based on their citizenship and residency status is projected to decline slightly in the future.

• We estimate that Federal expenditures for SSI payments in calendar year 2020 will increase by $0.7billion to $56.9 billion, an increase of 1.2 percent from 2019 levels.

• In dollars adjusted by the Consumer Price Index to 2020 levels, we project that Federal expendituresfor SSI payments will increase to $61.2 billion in 2044, a real increase of 0.3 percent per year.

• Federal SSI expenditures expressed as a percentage of the Gross Domestic Product (GDP) were 0.26 percent in 2019. We project that expenditures as a percentage of GDP will decrease to 0.25 percent of GDP in 2020, and continue to decline thereafter to 0.18 percent of GDP by 2044. Federal SSI expenditures are projected to grow more slowly than GDP both because the share of the population that will be potentially eligible for SSI will decline and because the maximum federal SSI benefit is projected to grow more slowly on average than the growth in average income in the future.

A Good Granny On Ice Story

     Here's a good "granny on ice" story. I haven't seen one of these in a while or, perhaps I should say, in a minute. Granny was "on ice" so someone could continue taking her Social Security benefits. This sort of story comes up more often than you might think. 

     By the time this crime was discovered, granny would have been about 112 years old if she had still been alive. The Social Security Administration used to send an employee to make an in-person visit to anyone turning 100, purportedly to congratulate them but really to make sure they were still alive. That hasn't been done in many years. Other efforts are made to prevent the concealment of deaths but, as this case demonstrates, those efforts aren't always successful.

     Did you know that a real life "granny on ice" story inspired the movie Bernie, starring Jack Black and Shirley McLain? There was a lot more going on in that fascinating movie than just Social Security, however.

I Wouldn't Bet On This Holding Up

     From the Arizona Capitol Times:

A federal magistrate has voided policies of the Social Security Administration that deny benefits to the survivors of some gay marriages.

In a precedent-setting decision, Bruce Macdonald said it was wrong for the government to conclude that Michael Ely did not meet the legal requirements to be considered the legal survivor of James A. Taylor.

Macdonald acknowledged that the policy requires that couples have been married for at least nine months for the survivor to get benefits. And that was not the case here, as Taylor died within six months of their wedding.

But the judge said that Ely was legally precluded from marrying Taylor in Arizona until October 2014 when a federal judge voided the state’s ban on same-sex nuptials. They wed the following month, with Taylor dying six months later.

And Macdonald said the government cannot use that unconstitutional ban to now penalize Ely. ...

     The Magistrate Judge has issued only a recommended decision that must be reviewed by the actual District Judge, assuming that the parties didn't consent to jurisdiction by the Magistrate Judge, which seems unlikely. After the District Judge decides, the case is likely to be appealed to the Court of Appeals and it could go to the Supreme Court after that. I certainly agree that denying benefits in this situation is unfair but I'm doubtful that the Courts will find it unconstitutional. Not everything that is unfair is unconstitutional.

     Update: I am told that the parties did consent to Magistrate Judge jurisdiction. I don’t know why either would have consented in this case. There can be an appeal to the District Court Judge and discretionary review in the Court of Appeals but no appeal of right to the Court of Appeals if the parties consent to Magistrate Judge jurisdiction.

More Flexibility For Worker Hours

     From Government Executive:

Officials at the Social Security Administration told employees Friday that beginning on June 1, some workers will be allowed to perform their duties outside normal business hours in an effort to help employees juggle work and family obligations. 

The move comes after two months of pressure by federal employee unions, who have urged the agency to provide a “maxiflex” telework schedule so that workers with dependent care obligations can perform their duties without burning through their annual leave. As previously reported by Government Executive, the agency's restrictive telework and leave policies have been a source of deep frustration for many workers.  

The exact hours during which employees can work vary by agency subcomponent, and the more flexible schedules are only available to employees with coronavirus-related care issues, such as caring for children or elderly family members. Prior to June 1, employees have only been able to work within the hours of 6 a.m. and 6 p.m. ...

Former Chairman Of House Social Security Subcommittee Passes

     Sam Johnson, the former Chairman of the House Social Security Subcommittee, has passed away at the age of 89.

     Johnson was not a big supporter of Social Security. As an example, in 2016 he introduced a bill to cut Social Security benefits, add means testing and raise full retirement age to 69.

Is This A Local Problem Or A National Problem?

     At my law firm we're seeing many cases where an unfavorable initial or reconsideration determination was made on a Social Security disability claim but nothing was mailed to us. This sort of thing has always happened in a few cases but it's happening all the time now. We only find out about the determination later when we call to ask what's going on with the case. Is this just a local problem in NC or is it national? I could easily see this being either a local problem due to NC Disability Determination Service having to swiftly adjust to having almost all of its employees working from home or I could see it as a national problem because these notices are centrally printed out.

Terrible, Terrible Phone Service At Social Security

     From a report by Social Security's Office of Inspector General:

On November 6, 2019, Representative Larson, Chair of the Subcommittee on Social Security, requested that the Office of the Inspector General reviewSSA’s field office customer wait times and telephone services. In this report, we address SSA’s telephone services.We are issuing a separate report [which I haven't yet seen] related to SSA’s field office customer wait times. ...

Some Charts From The Report

[PC = Payment Center, which do the computations needed to place claimants on benefits. Giving their personnel telephone duties takes them away from the vital work to do something for which they're ill equipped to handle.]

Calls “abandoned in menus” occur when callers hang up while using automated services.

I Predict This Will Come To Pass If Biden Is Elected

     From Regulating Impartiality In Agency Adjudication by Kent Barnett, 69 Duke L.J.1695-1748 (2020):

... [T]he majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators [such as Administrative Law Judges] and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially agency adjudicators, from at-will removal.

This Article argues that the executive branch itself can and should moot or mitigate this constitutional clash. Nothing in Article II prevents the president from issuing executive orders and agencies from promulgating regulations—collectively, what I refer to as “impartiality regulations”—that require good cause for disciplining and removing agency adjudicators, as well as other means of protecting adjudicator impartiality. Indeed, the executive branch has a long-standing yet overlooked practice of using executive orders and regulations for similar purposes. Impartiality regulations are but one form of the executive branch’s internal separation of powers. Such self-imposed separation provides a strong theoretical and practical solution for the agency-adjudicator dilemma. ...

    This may be the rare law review article that has an effect on the real world.
     By the way, my assumption here is that in Seila Law v. CFPB the Supreme Court will find the position of director of the Consumer Finance Protection Board to be unconstitutional because the incumbent may only be discharged for cause. Perhaps, I should say I expect that the Supreme Court will hold that while the position itself is constitutional, that the incumbent no longer has protection against being discharged without cause. The same would be the case for the position of Commissioner of Social Security. Administrative Law Judges would be next in line and I expect the same for them. I don't think Seila Law is getting as much attention as it should. Lucia was easily dealt with. Seila Law is a much larger threat to federal administrative law. Probably, the only way to deal with it is what the author of this article suggests, that is assuming that one cares about administrative justice. I think that Democrats care about administrative justice. I think that Republicans are enthralled with the idea of "deconstructing the administrative state." I think the only possible result of that is anarchy but judging by the Trump Presidency, Republicans like anarchy.