Oral Arguments In Vaello-Madero

      I listened to the oral argument is U.S. v. Vaello-Madero. You can't always tell from oral arguments and maybe I heard what I wanted to hear but my impression was that the only issue was how broad the opinion will be -- that all or virtually all of the justices are ready to hold it unconstitutional to deny SSI to U.S. citizens who reside in Puerto Rico and other territories. 

     If you also listened to the oral arguments, what was your take?

     Update: The Supreme Court reporter at the Washington Post thinks the Supreme Court is reluctant to extend SSI to Puerto Rico.  However, court reporters at The Hill seem uncertain about how the Court will come down.

Reopening Plan

      Vague though it may be, Social Security has released its reopening plan. It certainly allows many employees to continue working from home every day. No one has to come into the office daily.

     I don't know how this is going to work. I'm pretty sure that there will be be far, far too much demand for in-person service at the field offices to allow field office employees to work from home three days a week. How do ALJs conduct all the hearings they are supposed to conduct coming into the office one day a week? Things I've read suggest that many ALJs think that most claimants will continue to accept telephone and video hearings in the future. That's incredibly naive. I don't care how wonderful you think telephone or video hearings are. I know better. My opinion and that of my clients matter. The self-serving opinions of public servants don't matter in this instance. Cramming video hearings down the throats of unwilling claimants won't be politically feasible after the pandemic is over. We're getting back to something like normal or there's going to be hell to pay.

Great Summary Of Upcoming SCOTUS Case On SSI For Puerto Rico

      Ian Millhiser has written an excellent summary for Vox of the legal issues presented by U.S. v. Vaello-Madero, which is to be heard by the Supreme Court tomorrow. Vaello-Madero presents the issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in Puerto Rico and other U.S. territories. 

     The old precedents supporting the denial of SSI to Puerto Ricans, the so-called Insular Cases are so disreputable that they cannot be used to turn down Mr. Vaello-Madero. The Court could come up with new reasoning to justify turning down Mr. Vaello-Madero but would it? There probably won't be some liberal-conservative split on this case. Every amicus brief filed supported Mr. Vaello-Madero.

SSI Report

      Social Security has finally posted the SSI Annual Report. Some Republican Senators tried to make an issue over the report being filed late.

Redesigned Statements Get Positive Reviews

      Social Security has redesigned the statement that potential beneficiaries can access online to tell them about their future benefits. The redesign is getting positive reviews. They used to send something like this out in the mail whether you asked for it or not. My experience was that no one paid attention to the statements that used to be mailed even if they were about to file a claim for benefits. It may be a better design now but will that make a difference, especially when far fewer people are seeing it?

A Blast E-Mail To Social Security Operations Employees

From Deputy Comm  Grace Kim. 

Subject: Operations Re-entry Plan

Earlier today, Acting Commissioner Kijakazi issued a broadcast message to provide preliminary information about SSA’s re-entry plan.  I am building on that message to share how Operations fits into that plan.  I want to emphasize that your safety and the safety of the public we serve continues to be a priority not only in our current operating posture, but also in how we will re-enter our offices. We will continue to monitor and follow the government-wide, science-driven advice of the Centers for Disease Control and Prevention.

I know most of you are curious about Operations’ future telework plan.  The global pandemic has changed our operating environment, how and where we work, and highlighted those areas where we are not meeting our public’s needs.  Over the course of the past 19 months, we have learned that we can effectively accomplish some work while teleworking, but our public service responsibilities mean that we still need to do some work onsite.

In Operations, I am planning for greater flexibility for telework for employees.  We will use the lessons learned throughout the pandemic to inform how we implement a telework plan that allows employees to work from home and ensures that we effectively serve the public and carry out our mission.  We will work closely with AFGE to ensure we meet all labor obligations.  I am excited to share that I have proposed a telework program that will allow most Operations employees the opportunity to telework between 2-5 days a week depending on your job duties. Soon, your supervisor will share the telework availability for your position and give you 30 days’ notice before we transition to our new telework plan, which at earliest will begin in January.  Until then, we will continue to operate as we have been under our current Workplace Safety Plan.

After we have completed re-entry and implemented our telework plans, we will evaluate how we are doing.  This evaluation will inform our longer-term plans as we enter Fiscal Year 2023.

I want to thank you for your hard work and commitment to serving the public during this unprecedented time.  I appreciate your patience as we consider how to safely re-enter the workplace. I will keep you updated on the re-entry process.

Grace

Class Actions On Same Sex Marriages Settled

      From NBC News:

Social Security survivors benefits will now be available to same-sex spouses and partners who had been denied access due to previous bans on gay marriage.

The Department of Justice and the Social Security Administration on Monday announced that they dismissed appeals filed by the then-Trump administration in two class-action lawsuits related to Social Security survivors benefits for same-sex partners and spouses.

In 2018, Lambda Legal, an LGBTQ rights nonprofit group, filed two class-action lawsuits against the Social Security Administration: one on behalf of surviving same-sex partners who had been prevented from legally marrying their loved ones by bans on same-sex marriage, and another on behalf of those who were able to marry, but were prevented from being married for at least nine months — the minimum set by the Social Security Administration — due to bans on same-sex marriage. …

SSA To Be Responsible For Paid Leave Under BBB Bill

      The current version of the Build Back Better Act, the major budget reconciliation bill pending in the Senate, contains a major responsibility for the Social Security Administration. If passed , Social Security will be administering Universal Comprehensive Paid Leave. (Begins on page 1065). Claimants will be able to appeal from determinations made under this program but not to federal court. (Page 1081). I am somewhat confused about extra funding. At one point the bill indicates that Social Security will be given an extra $1.591 billion in the first year and an extra $1.5 bill a year thereafter to administer the program. (Page 1090). At another point, it indicates that there will be as much as an extra $2.5 billion. (page 1091). It's not clear to me whether as much as $2 billion of this may be expended for Social Security operations generally. It appears that this will be effective sometime in the current fiscal year -- at least that's when Social Security gets a big appropriation -- but I have been unable to find the exact date.

     This will be the first major new responsibility for the Social Security Administration since SSI was adopted in the 1970s. It comes at a time when the agency's staffing is at a low ebb and there are massive backlogs across almost all agency operations. Also, the agency is being directed by an Acting Commissioner.

Ticket To Work Doesn't Work

      From a recent report by the Government Accountability Office (GAO):

Disability beneficiaries participate in the Social Security Administration’s (SSA) Ticket to Work and Self-Sufficiency program (Ticket to Work) by assigning a "ticket" to service providers who, in turn, provide help with employment. SSA compensates the service providers when Ticket to Work participants achieve designated levels of work and earnings. Using SSA data from 2002, when the program began, through 2018, the most recent year available, GAO estimated that 5 years after starting Ticket to Work, participants’ average earnings were $2,451 more per year than that of similar nonparticipants. However, the majority of participants remained unemployed 5 years after starting Ticket to Work. 

Based on GAO’s analysis, the costs of Ticket to Work exceeded the savings in disability benefits to SSA by an estimated $806 million from 2002 through 2015, the most recent year with reliable savings data. Savings accrue when Ticket to Work participants receive lower benefits or leave the disability rolls due to earnings from work. GAO estimates that participants were slightly more likely to leave the rolls (9.7 percent) than nonparticipants who are similar across a range of characteristics such as age, gender, disability type, and education level (8.6 percent). A greater percentage of participants left the disability rolls due to work rather than for other reasons, such as medical improvement ...

GAO estimates that SSA incurred an additional $133 million to $169 million in costs (above the $806 million) from disability benefit overpayments to Ticket to Work participants. Overpayments can occur when beneficiaries who work do not report earnings to SSA or SSA delays in adjusting their benefit amounts. ...

     This report ignores an important reality.  No one makes claimants participate in the Ticket to Work program. Those who do participate are saying they believe they may have some capacity for work, meaning that they have better prospects for returning to work than claimants generally. Comparing the results in this group to claimants generally makes the Ticket to Work results look better than they are. Some of those who volunteered for Ticket to Work would have returned to work with or without Ticket to Work. We can't tell how many were only able to return to work due to Ticket to Work. If there were a control group, it would be some who volunteered for Ticket to Work but were arbitrarily denied Ticket to Work help but there is no such control group because none were turned away.

     Note the ridiculous level of overpayments associated with Ticket to Work even among a group of beneficiaries who told Social Security they planned to return to work. Don't blame claimants for this. Social Security's system for handling reports of return to work just doesn't work. 

     I'll make a modest suggestion. Social Security should almost completely stop relying upon wage reports from claimants because they do a poor job of reporting and Social Security does a worse job of recording what they report. We should define Substantial Gainful Activity on a quarterly basis and base work deductions on quarterly wages reported by employers. This can mostly be done by the computers. Yes, there will be problems with "wages" that are reported for work done earlier (such as sick pay, vacation pay and residual commissions) and yes, there will be problems with self-employment income but we'd be in a much better place than we're in now if those are the only problems we have to deal with.

Delays In Filing Retirement Claims

      The Washington Post has an article out displaying a couple of charts that they say show that during the pandemic people have been retiring but deliberately delaying claiming Social Security retirement benefits. Here's one of the charts:

     The thing about it is that there's been a similar decline in the number of SSI claims filed and there's no benefit whatsoever in delaying filing an SSI claim. One possibility is that office closures and the increased difficulty in reaching Social Security by telephone have caused people to delay filing claims out of frustration. People don't have to be deterred entirely or even for long to produce something like this graph. Just deter a certain percentage of claims for a month to three months and you end up with fewer claims filed for a time period. My experience is that few people are crafty about the date they file their retirement claim. That sort of behavior exists mostly in the minds of newspaper writers who are overly invested in the idea that simplistic economic theories explain human behavior. They don't factor in the service environment at Social Security.