What Can Be Done About SSI For Puerto Rico And Other Territories?

Puerto Rico's flag

     I had promised some ideas on what can be done about the possibility that the Supreme Court will find that it is unconstitutional to deny SSI benefits to U.S. citizens who are residents of Puerto Rico and other U.S. territories. If this happens, there's going to be an avalanche of claims. I suppose I haven't gotten around to writing about this before now because I doubt that much will be done.

     If Donald Trump is re-elected or if Republicans continue to control the Senate, I'm pretty sure nothing will happen in advance of a Supreme Court decision. In fact, I'm pretty sure that it will be difficult to mount an effective response even after a Supreme Court decision that SSI must be offered to residents in the U.S. territories if Republicans control the White House or the Senate. As a party, they are hostile to government benefit programs and to Hispanics and they're disinterested in government operations.

     If Democrats control the White House and the Senate, it may depend upon what Senate Democrats do about the filibuster. While most Senate Democrats favor doing something about the filibuster, Senators Manchin, Jones and Sinema, at the least, oppose this effort. Democrats will need more than a bare majority to nuke the filibuster.

     If Democrats do control the White House and the Senate and can get around the filibuster, they can give the Social Security Administration more money to implement SSI in the territories. The problem is that the agency needed additional appropriations a couple of years ago to start preparing for this. About all the agency can do now with more money is to throw a lot of overtime at it, not just in Puerto Rico and the other territories, but across the country. This is way too big a problem to be handled just in the territories.

     Another thing that Congress can do is what was done at the time SSI was first created in 1972 and came into effect in 1974. They can grandfather in recipients of Aid to the Aged, Blind and Disabled (AABD). You see, SSI wasn't the first needs based program of financial assistance to the aged, blind and disabled. AABD benefits go back to the 1935. It's Title XIV of the Social Security Act. Those benefits were administered by the states but mostly paid for with federal dollars. In order to reduce the challenges of initially implementing SSI, recipients of AABD were grandfathered onto SSI benefits. AABD went away once SSI was implemented, except in the U.S. territories where it persists to this day.

     The problem with grandfathering in AABD recipients, apart from Republican efforts to obstruct the effort, is that there aren't that many recipients of AABD. Puerto Rico is poor but it had only about 37,00 AABD recipients as of 2016, the most recent year for which I can find numbers, and almost half of those were aged recipients, the easiest category to put on SSI benefits. This contrasts with the estimated 700,000 Puerto Ricans which may qualify for SSI. Why so few AABD recipients in Puerto Rico? The average AABD benefit in Puerto Rico is only $77 a month and the income limit is only $65 a month. Grandfathering in AABD recipients is better than nothing but it doesn't get you very far.

     The only other thing I can come up with is that Congress could pass a bill giving SSI to the territories effective in 2023 before a Supreme Court decision. That would give time to prepare adequately. The plaintiffs from Puerto Rico and Guam with pending cases could be bought off. What would you do about others trying to get benefits before 2023? I guess you'd just try to stall them and hope there's not too many of them. Of course, to do this Congress would have to act before the Supreme Court gets around to the issue. I doubt that there is any way of delaying a Supreme Court decision past June 2021. Unfortunately, preemptively giving SSI to the territories would require that Democrats control the White House, the House of Representatives and the Senate, be able to nuke the filibuster and focus on this issue almost immediately after inauguration day. I'd be very surprised if that all happens.

     Does anyone have any better ideas other than hoping the Supreme Court holds that denying SSI to U.S. citizens residing in U.S. territories is constitutional? The Supreme Court could rule that way but as I mentioned in an earlier post, five federal judges have issued rulings on the issue so far and all five have found it unconstitutional even though four of the five were nominated by Republican Presidents.

     By the way, even if the Supreme Court rules that it's constitutional to deny SSI benefits to U.S. citizens who reside in the territories, we're not out of the woods. There is an effort to give statehood to D.C and Puerto Rico. There's a decent chance of that happening, depending upon the election result.

    

Legislation Introduced To Address Ovepayments During Pandemic

     From a press release:

Today, Ways and Means Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) and Social Security Subcommittee Chairman John B. Larson (D-CT) introduced the Fairness for Seniors and People with Disabilities During COVID-19 Act, legislation to protect seniors, surviving spouses, children, and people with severe disabilities from being forced to repay extra Social Security and Supplemental Security Income (SSI) benefits they may have received in error because of the COVID-19 pandemic.

The legislation comes at a critical moment, as reports indicate the Social Security Administration (SSA) may soon begin issuing letters demanding beneficiaries repay hundreds or even thousands of dollars they no longer have, in the middle of a pandemic. These beneficiaries did not know they were being overpaid, could do nothing to prevent these extra payments, and may have little ability to pay them back. ...

“Low income, disabled and seniors, many of whom are always at the precipice of falling into immediate life crisis, now face a new potentially disruptive conflict in their lives,” said Chairman Davis. “Some of these individuals, through no fault of their own, received automatic COVID-19 benefits in excess, in retrospect, of what the regulations prescribe. Attempting to ‘claw back’ some of these payments is not only impractical as the recipients are extremely unlikely to have the resources to return the payments, but it is also cruel and potentially dangerous as they could be forced into making impossible choices as to what to give up in their meager resources in an attempt to respond to any such demand. I believe the only just and humane approach to this confusion is a ‘no-fault’ stance to this looming threat; that is, hold these recipients harmless against any errors on the part of the government. No one in government ever intended that the COVID-19 benefits should cause any harm or injustice to the recipients.”  ...

Get Over It, GOP!

     From Michael Hiltzik writing for the Los Angeles Times:

Social Security advocates who breathed a sigh of relief when Senate Republicans rejected President Trump’s demand to place a payroll cut in the latest coronavirus relief bill exhaled too soon.

The version unveiled Monday by Senate Majority Leader Mitch McConnell (R-Ky.) incorporates a provision even more menacing for Social Security (and Medicare too).

This is the so-called TRUST Act, which was crafted by Sen. Mitt Romney (R-Utah) and has been bubbling along in Capitol Hill corridors since last year. ...

The TRUST Act — the acronym stands portentously for “Time to Rescue United States’ Trusts” — would work by ginning up a sense of near-term emergency about the finances of Social Security, Medicare and the federal highway trust fund. ...

Congress would then appoint bipartisan committees mandated to “draft legislation that restores solvency and otherwise improves each trust fund program,” as Romney has described the process. Whatever proposals these panels produced would be fast-tracked in Congress and not subject to amendment. (The bills would need 60 votes in the Senate.)

On the surface, this seems almost innocuous — so much so that the act has attracted co-sponsorships from a handful of inattentive and somewhat conservative Democrats, including Sen. Joe Manchin of West Virginia and Sen. Kyrsten Sinema of Arizona. They should pay better attention. ...

Since the TRUST panels’ deliberations will be offered to Congress on a take-it-or-leave-it basis, the process rather serves what the GOP refers to as the need to gut Social Security “behind closed doors,” to quote an unwittingly revealing line uttered last year by Sen. Joni Ernst (R-Iowa). ...

     I'm confident this isn't happening in this stimulus bill but it shows the implacable hostility that Congressional Republicans have for Social Security. This won't happen because mainstream Congressional Democrats are even more devoted to maintaining Social Security. I understand that Manchin is in a red state and Sinema is in a purple state but that doesn't explain why they would support this. They're certainly isolated within their party. Even if you could force a vote on a bill to cut Social Security in any significant way, it wouldn't get a majority vote even from Republicans. It's hopeless. Americans love Social Security. Get over it, GOP!

SSDI Recipients Eligible For PUA

     Under the laws of the state of Wisconsin, North Carolina and possibly other states, individuals who receive Disability Insurance Benefits (DIB) from the Social Security Administration are ineligible for standard unemployment compensation. The CARES Act adopted in response to the Covid-19 pandemic created a new type of federally funded unemployment compensation, Pandemic Unemployment Compensation (PUA), for those not eligible for regular unemployment compensation. The state of Wisconsin asked the U.S. Department of Labor whether individuals receiving DIB would be eligible for PUA since they are barred from receiving regular unemployment compensation. The answer came down yesterday. They are eligible.

DDS Hiring In Arkansas In Anticipation Of A Significant Increase In Disability Claims

     From the Arkansas Democrat Gazette:

The Legislative Council on Friday approved Arkansas Disability Determination for Social Security Administration's request to create 92 new positions. ...

"Due to the current situation in our country, Social Security Administration ... anticipates a significant national increase of federal Social Security disability cases in many states, as well as Arkansas," state Personnel Director Kay Barnhill wrote in a memo to the Legislative Council's personnel subcommittee chairmen, Rep. Jim Wooten, R-Beebe, and Sen. David Wallace, R-Leachville. ...

     I haven't seen a surge in disability claims due to Covid-19. I'm expecting some claims as a result of long term health problems related to Covid-19 but I haven't seen a single case yet.

An Ordeal For SSI Recipients

     From Ari Ne’eman writing for the New York Times:

... Looking at the mess facing S.S.I. recipients who try to work, one feels that a terrible mistake has been made. But history tells a different story: this Kafkaesque nightmare was a deliberate choice. ...   

In the [Social Security Act’s] early years, federal officials, including the Social Security Board’s chairman Arthur Altmeyer, feared that generous state public assistance programs would build momentum for replacing Old Age Insurance with a more progressive alternative. ... Critics wanted equal benefits for all, financed by a redistributive payroll tax. ...   

To protect against this possibility, Altmeyer made getting public assistance as unpleasant as he possibly could. States were told that they could not receive federal money unless they conducted intrusive investigations of every applicant, reducing benefits to those who received food or shelter from family or friends. Programs that permitted beneficiaries to work and save were told to adopt more restrictive eligibility standards or be denied funding. ...   

[Despite criticism] Altmeyer’s vision remained largely intact. Public assistance maintained an aggressive means test. When disability and aging programs were federalized into the Supplemental Security Income program in 1971, these restrictions came with them. 

Today, economists refer to Altmeyer’s strategy as an “ordeal” — a burden imposed on those receiving benefits that yields no benefit to others. The purpose of an ordeal is not to help the beneficiary or others in society. Instead, ordeals deliberately make a program or service worse in order to discourage people from using it.

The Guy Who Invented Social Security

Otto von Bismarck

A Couple Of Things I'm Wondering About

     I've been wondering about a couple of things. First, what is happening in Puerto Rico (and other U.S. territories) when claimants inquire about filing SSI claims? Second, is Social Security trying to track Seila Law objections?

     My general impression is that secretiveness has increased at Social Security since the 2016 election. If you want proof, look at Social Security's postings of Emergency Messages (EMs). The purpose of EMs is to let employees in the field know about significant changes in agency policy or practice. Through May 21 of this year at least 22 new EMs had been released to agency employees but only two had been released to the public. None has been released to the public since May 21. There might be some good reason to withhold a few of those but the vast majority of EMs aren't sensitive. My guess is that the logic behind withholding these from the public is that the agency can't be called to account for failing to follow its own policies when the public doesn't know what those policies are.

     Because of the litigation over the constitutionality of current law that denies SSI to residents of most U.S. territories, there should be individuals attempting to file SSI claims in these territories. What's being done when that happens? How many people in the territories are attempting to file SSI claims? If I were representing clients in Puerto Rico who might be eligible for SSI, I'd certainly be telling them to try to file SSI claims but I'm not representing clients there.

     My expectation is that because of the Supreme Court opinion in the Seila Law case there will be litigation over the validity of actions taken by the Social Security Administration while headed by a Commissioner who can only be discharged by the President for cause. Shouldn't the agency be tracking cases where this sort of objection is made? That's what they did earlier in the run-up to and after the Supreme Court decision in Lucia v. SEC on the constitutionality of ALJ appointments.

Congressmen Seek Answers

     A press release:

Today, House Ways and Means Social Security Subcommittee Chairman John B. Larson (CT-01) and Republican Leader Tom Reed (NY-23) sent two letters to the Social Security Administration (SSA) Inspector General Gail S. Ennis asking for a review of SSA’s telephone service during the COVID-19 pandemic and SSA’s process for obtaining medical evidence for disability claims.

As the COVID-19 pandemic continues, beneficiaries are relying on their Social Security now more than ever. Except in dire need, beneficiaries are unable to access in-person services and are relying instead on telephone services.

In addition, SSA requests millions of medical records each year from healthcare facilities and health professionals across the country to obtain evidence of an individual’s medical condition.  The medical records request is an important part of the disability process, but the most recent report on this topic from the OIG is from 2001 and does not reflect changes to the process over the past nearly 20 years.

“Social Security benefits are earned by hard-working Americans and we must do everything we can to ensure people are receiving the quality customer service they deserve.  These reports will provide important information to make sure Americans are receiving the service they expect and deserve from SSA,” said Larson and Reed.

The letter on telephone service can be found here.

The letter on medical evidence of record can be found here.

Some Things The House Appropriations Committee Is Concerned About

     Some excerpts from the House of Representatives Appropriations Committee report on the Fiscal Year 2021 appropriations bill (starts at page 298) that includes the Social Security Administration:

• The Committee considers the Notice of Proposed Rulemaking (NPRM) ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council’’ (84 Fed. Reg. 70080, December 20, 2019) to be an unjustified erosion of due process for individuals who are appealing a denial of Social Security or SSI benefits. As part of a beneficiary’s right to an impartial appeal process, an on-the-record hearing, conducted by an impartial judge with decisional independence, must be conducted in accordance with the Administrative Procedure Act to ensure due process, with-out agency interference, or political bias. Replacing this appeals step and the role of independent administrative law judges (ALJ)s with SSA employees, jeopardizes the independence of the process. In light of the harm that would be caused by this policy change, the Committee strongly urges SSA to immediately withdraw this proposed rule. 
• The Committee is deeply concerned about the impact of Presidential Executive Order 13843 on the judicial independence of administrative law judges (ALJs). The Order eliminates the competitive hiring process for ALJs and has the potential impact of converting independent adjudicators to political appointees, undermining longstanding principles of fair and unbiased consideration of matters of vital importance to the American people. ALJs must be independent decision-makers and it is the Committee’s expectation that SSA maintain the highest standards for appointment of ALJs. The Committee directs the Ad-ministration to develop and submit to the Committees on Appro-priations, Ways and Means,and Oversight and Reform, a report on hiring processes, to include an explanation of the process, qualification standards, and criteria used to recruit, evaluate and hire ALJs.
  
• The Committee is concerned that persistent labor-management relations problems are undermining the vital work of the SSA. Within 180 days of enactment of this Act, SSA is directed to submit to the Committee a plan, developed in consultation with labor organizations representing its workforce, to improve workplace morale and to strengthen employee recruitment and retention, to better serve the American people.
• The Committee stresses its long-standing support for well-managed telework programs in the Federal workplace and is concerned about recent reductions in telework at SSA. Within 60 days of enactment of this Act, SSA is directed to submit a report to the Committee to explain each decision by SSA to reduce telework availability on or after October 1, 2019, which shall include any metrics used by SSA to reach these determinations, and an impact assessment on human capital in hiring and retention, in-creases to transit and parking subsidies, office space and utility needs changes, lost productivity and morale decline due to lost telework.
• The Committee expects that once the COVID–19 pandemic ends SSA will resume in-person hearings on the same basis as prior to the pandemic.

      Some caveats: This is just the House version. The Senate gets a say as well. These are just recommendations. Even if finally passed they're not legally binding. This bill probably won't be finalized until early next year. There may be some new actors on the stage by then.