Dec 12, 2014

GAO Report Urges More Efforts To Find Fraud To Satisfy GOP

     From a report by the Government Accountability Office done at the behest of the Chairman of the House Social Security Subcommittee and the Ranking Member of the Senate Finance Committee:
The Social Security Administration (SSA) has policies and procedures in place for detecting and preventing fraud with regard to disability benefit claims. However, GAO identified a number of areas that could leave the agency vulnerable to physician-assisted fraud and other fraudulent claims:
  • SSA relies heavily on front-line staff in the offices of its disability determination services (DDS)—which have responsibility for reviewing medical evidence—to detect and prevent potential fraud. However, staff said it is difficult to detect suspicious patterns across claims, as directed by SSA policy, given the large number of claims and volume of medical information they review. Moreover, DDS offices generally assign claims randomly, so staff said it would only be by chance that they would review evidence from the same physician.
  • SSA and, in turn, DDS performance measures that focus on prompt processing can create a disincentive for front-line staff to report potential fraud because of the time it requires to develop a fraud referral. Four of the five DDS offices GAO visited count time that staff spend on documenting potential fraud and developing fraud referrals against their processing time. Some staff at these DDS offices said this creates a reluctance to report potential fraud.
  • The extent of anti-fraud training for staff varied among the five offices GAO visited and was often limited. SSA requires all DDSs to provide training to newly hired staff that includes general information on how to identify potential fraud, but does not require additional training. The five DDS offices GAO visited varied in whether staff received refresher training and its content—such as how to spot suspicious medical evidence from physicians—and staff at all levels said they needed more training on these issues.
  • SSA has not fully evaluated the risk associated with accepting medical evidence from physicians who are barred from participating in federal health programs. Although information from these physicians is not necessarily fraudulent, it could be associated with questionable disability determinations.
SSA has launched several initiatives to detect and prevent potential fraud, but their success is hampered by a lack of planning, data, and coordination. For instance, SSA is developing computer models that can draw from recent fraud cases to anticipate potentially fraudulent claims going forward. This effort has the potential to address vulnerabilities with existing fraud detection practices by, for example, helping to identify suspicious patterns of medical evidence. However, SSA has not yet articulated a plan for implementation, assigned responsibility for this initiative within the agency, or identified how the agency will obtain key pieces of data to identify physicians who are currently not tracked in existing claims' management systems. Furthermore, SSA is developing other initiatives, such as a centralized fraud prevention unit and analysis to detect patterns in disability appeals cases that could indicate fraud. However, these initiatives are still in the early stages of development and it is not clear how they will be coordinated or work with existing detection activities.
     It could be that there really isn't much fraud and that extensive efforts to find it wouldn't be cost effective. 

Dec 11, 2014

Threat Of A Shutdown

     The federal government will shut down tomorrow if Congress cannot agree on a continuing resolution to fund the government. 
     The last time there was a shutdown, which was just last year, almost all Social Security employees were told to keep working. The major exceptions were employees of the Office of Disability Adjudication and Review (ODAR) other than the Administrative Law Judges (ALJs) and most of the Office of General Counsel (OGC). Even without passage of a funding bill almost all the ODAR employees were recalled. The OGC employees were recalled just before passage of the continuing resolution. Social Security asked the state Disability Determination Services (DDS) to stay open and they did for a time but some started closing down as the shutdown continued. 
     I expect that Social Security employees were told today whether they should come to work tomorrow if there's a shutdown. What's the plan this time in case there's a shutdown?
     By the way, when's the next federal payday? If the shutdown, if it happens, is still going on at that time, no paychecks can be issued even for employees who have been told to work.

OIG Report

     Social Security's Office of Inspector General (OIG) has released its Semiannual Report to Congress. In Fiscal Year 2014 OIG received 121,461 allegations, opened 8,335 cases and get 1,291 criminal convictions. This is for a program that pays benefits to 63.2 million people. Only 6% of the allegations had enough substance to be worthy of an investigation. Only about 1% of the allegations resulted in a conviction. Whatever fraud there is at Social Security should certainly be investigated and prosecuted but it's only a tiny, tiny part of Social Security.

Dec 10, 2014

Social Security Asks Permission To Publish Final Rule On Submission Of Evidence

     Social Security has asked the Office of Management and Budget (OMB) to approve a final rule on the submission of evidence in disability claims. If this has not been significantly altered since it was published as a proposed rule, it will be completely unworkable.

TV Station Reports On Hearing Backlogs

     A Nashville television station is reporting on the huge backlogs and long waiting times to get a hearing on a Social Security disability claim. Expect many more similar reports. The backlogs are approaching record levels.

Dec 9, 2014

Former Service Representative Pleads Guilty To Social Security Fraud

     From a press release issued by Social Security's Office of Inspector General:
A former employee of the Social Security Administration (SSA) appeared in federal court in Dallas this morning and pleaded guilty ... to one count of conspiracy to commit theft of government funds. He faces a maximum statutory penalty of five years in federal prison, a $250,000 fine and restitution. ...
In some instances, for example, [Carwin Shaw of Arlington, Texas, who was a Service Representative] manipulated the verified income attributed to Supplemental Security Income beneficiaries that resulted in the issuance of larger payments than authorized, the issuance of payments when none were due, and the removal of legitimate overpayments posted to beneficiary’s record. Shaw further admitted using the SSA’s electronic systems that interface with the U.S. Treasury Department to issue duplicate checks to beneficiaries when only one check was due. Shaw would cut additional checks to the co-conspirators by alleging their initial check had been lost or stolen, split the second check with the co-conspirator and then access the system and waive the overpayment so that it would not be recovered from any future benefits. Each co-conspirator was the representative payee for one minor or otherwise incompetent Social Security beneficiary.
The loss to the SSA as a result of all of Shaw’s relevant conduct is approximately $78,165. ...

Dec 8, 2014

Republican Members Of Social Security Subcommittee Announced

     Republicans have announced their list of members of the House Ways and Means Subcommittee on Social Security for the upcoming Congress
  • Sam Johnson, Chairman
  • Jim Renacci
  • Vern Buchanan
  • Aaron Schock
  • Tom Reed
  • Todd Young
  • Mike Kelly

Allegation Of Computer System Coverup

    From FoxNews.com:
Senior officials at the Social Security Administration (SSA) tried to hide a damning report on a $300 million computer system that lawmakers have called a “boondoggle” in order to protect President Obama’s nominee to lead the agency, a whistleblower claimed in an interview with FoxNews.com.  
Whistleblower Michael Keegan told FoxNews.com that McKinsey & Company, a consulting firm, issued a draft report in December 2013 saying the agency had spent $288 million over six years for a new computer system processing disability claims that has yet to launch.
But Keegan said he was present at a meeting of senior officials in May of this year where they decided to sit on the report as long as Carolyn Colvin’s nomination for commissioner was pending.
“They hid the report,” he told FoxNews.com.
Keegan said it was discussed at that May meeting that Colvin, the acting commissioner, had been briefed on the findings.
He added: “There is absolutely no way that [Colvin] could be in the dark” on the effort to hide it.
     If there was a coverup it wasn't very successful since word first got out about this in July. It seemed to be no problem for Colvin's nomination until after the election.

Dec 6, 2014

Do Jobs With Higher "Cognitive Analytic" Skills Have Higher Rates Of Disability?

     The abstract of a study by Lauren Hersch Nicholas for the Center for Retirement Research at Boston College:
We use Health and Retirement Study data linked to the Department of Labor’s O*Net classification system to examine the relationship between lifetime exposure to occupational demands and retirement behavior. We consistently found that both non-routine cognitive analytic and non-routine physical demands were associated with worse health, earlier labor force exit, and increased use of Social Security Disability Insurance. The growing share of workers in jobs with high levels of cognitive demand may contribute to growth in DI use.
     It's obvious at ground level that people who work at jobs that have higher physical demands have higher rates of disability. It only stands to reason. However, increased rates of disability for those in jobs requiring the use of higher "cognitive analytic" skills comes as a surprise. I'm generally skeptical of government funded research that ends up calling for more government funded research. This report actually doesn't make that recommendation but this is a topic worthy of more research.

Dec 5, 2014

Colvin Defends Herself

     Here's Colvin defending herself against charges that there's somethintg illegal about a contract her agency is administering:
I've always met the highest ethical standards," ... I've worked in government my entire life. There's never been a suggestion, personal or professional, of any wrongdoing.
I'm certainly not ending my career with that, .. I came out of retirement to help this organization, not hurt it. ...
Colvin noted that the project was launched "way before I got here," ...
That's what I do, I'm a problem-fixer," ... Every organization I've gone into I try to identify what the vulnerabilities are and try to fix them. ...
     If Republicans want to block this nomination, they can. There's no need to cast ridiculous aspersions on a person who has done nothing wrong. Colvin has served Social Security and other agencies honorably.

Dec 4, 2014

ABLE Passes House

     The ABLE Bill has passed the House of Representatives. Under the bill, contributions may be made to an ABLE account set up for a recipient of Supplemental Security Income Disability (SSID) without affecting SSID entitlement. The funds in ABLE accounts may be used for "education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expense."
     Although ABLE would affect needs based programs such as SSID, it will primarily help disabled people who come from middle class or wealthy families. They are the ones who will have the money to contribute to ABLE accounts. The ABLE Bill doesn't update the absurdly low income and resource limits in SSI. This is not the fault of those behind ABLE. They would like to update SSI as well. This was the best they could do. It says something about the current state of our politics that helping poor people would be considered a deal breaker for this bill.

Senators Want To Hold Up Colvin Nomination

     The Associated Press is reporting that a "group" of Republican Senators is planning to hold up Carolyn Colvin's nomination for a term as Commissioner of Social Security while they seek more information about Social Security's troubled $300 DCPS computer project. The article doesn't say who is part of this "group" or how big it is. However, it hardly takes more than one Senator to block a nomination. Holding up the nomination over this sounds preposterous to me. This was former Commissioner Michael Astrue's project. Colvin merely inherited it. It's a necessary project and one that everybody knew was bound to be messy. However, if you're looking for a pretext to block a nomination of an otherwise non-controversial nominee, I guess this will do.

     Update: It's all Republicans on the Senate Finance Committee. This nomination is dead at last for for this session of Congress.

Dec 3, 2014

Senate Finance Committee Schedules Hearing

     The Senate Finance Committee has scheduled a hearing for December 9 on Social Security: Is a Key Foundation of Economic Security Working for Women?

House Of Representatives Unanimous On Social Security Bill

     The House of Representatives has unanimously approved a bill to deny Social Security benefits to suspected Nazi war criminals. I have seen no count of the number of people affected. Probably they can be counted on one hand. It's more than possible that everyone who could be affected is already dead. If not, they certainly will be soon.
     Update:  Here's what Andrew Rosenthal  at the New York Times has to say on this bill:
[T]he crowing this week by some members of Congress over the House’s passage of a bill denying Social Security benefits to Nazis was ridiculous. ...
The Nazi bill is a political freebie. Passing it does not constitute a real achievement or a profile in courage. The issue is, at best, trivial. ...
Of those nonagenarian fiends, the AP said in October, “there are at least four living beneficiaries.”
The small number does not mean, once again, that the payments were acceptable. The AP said that “millions” went to these people over the years.
But none of that excuses the gas bagging by the Democratic co-sponsor of the bill, Representative Xavier Becerra of California, on Tuesday. ...

Dec 2, 2014

Sound Familiar?

From The Canadian Press:
Terminal cancer patients, organ-transplant recipients and suicidal, debt-addled Canadians are among the 11,000 people waiting to have their appeals heard by Ottawa's badly backlogged social security tribunal.
Some of those awaiting a decision on their eligibility for benefits, including people with debilitating injuries, have had their cases expedited due to severely declining health.# Others, however, have waited years — some are still waiting — to hear whether the initial decision to deny them Canada Pension Plan disability benefits will be overturned.
Given the nature of their illnesses, a decision may come too late.

Dec 1, 2014

They Didn't Take The Dare

Judge Easterbrook
     I thought I would update this one. See below for what I wrote a few months ago. It appears that Social Security (or perhaps the Solicitor General) didn't rise to the bait. I see no sign that a petition for rehearing en banc was filed. It looks like no petition for certiorari has been filed with the Supreme Court. The time for doing so has now passed. 
     Those of us in private practice with even a little experience always advise against taking weak cases to the Court of Appeals. It's good advice for Social Security as well.

     Marilyn Boley's claim for Social Security disability benefits was denied at the reconsideration level. She was represented at the time by an attorney. Ms. Boley received the reconsideration determination. Under Social Security's regulations the determination should have been sent to her attorney but it wasn't. Ms. Boley had 60 days to request a hearing before an Administrative Law Judge (ALJ). Ms. Boley, who was preparing for a double mastectomy at the time, thought her attorney would take care of the appeal but he didn't since he didn't know she had been denied. The request for hearing was not filed until nine months after the reconsideration denial. Social Security's regulations allow for accepting an appeal that has been filed late if there is good cause. The Administrative Law Judge to whom the appeal was assigned did not think there was good cause and dismissed the appeal. The Appeals Council affirmed the dismissal of the appeal. 
     Ms. Boley filed a civil action in United States District Court to obtain review of the dismissal of her appeal. The statute governing review of Social Security cases in federal court says that review may be had only of a "final decision of the Commissioner of Social Security made after a hearing." Social Security has always argued that the civil actions like Ms. Boley's must be dismissed because there was no hearing on the dismissal. Almost always Social Security has won these cases. In Ms. Boley's case the District Court agreed with Social Security and dismissed her civil action.
     Ms. Boley appealed to the Seventh Circuit Court of Appeals and finally won. In an opinion authored by Judge Easterbrook (who was nominated by President Reagan), the Court held that the term "hearing" merely meant whatever process Social Security used to render a decision, whether or not it involved an oral hearing. The Court held that there was good cause for the late appeal and that Ms. Boley should get her ALJ hearing. In doing so, the Court overturned its own precedent in Watters v. Harris, 656 F.2d 234 (7th Cir. 1980).
     In my opinion, Social Security had this one coming. You can say that Judge Easterbrook reached to construct the statute in the way that he did -- I think that the argument made by Ms. Boley's attorney that the dismissal was a denial of due process would have been the better route for the Court to follow to achieve the same result -- but the ALJ never should have dismissed the request for hearing and the Appeals Council never should have affirmed what the ALJ did. You can say that the attorney and client should have stayed in touch better and that the attorney shouldn't have allowed nine months to pass without checking on the case and you'd be right but that doesn't change the fact that Social Security's screw up was the primary reason for the late appeal. Late appeals because of Social Security's screw ups aren't rare. The reason you seldom see them in the federal courts is that almost always good cause is found for the late appeal. What the ALJ and the Appeals Council did in this case was just wrong. Defending this in the Court of Appeals or even in District Court was asking for trouble.
     I'm sure that there are many at Social Security's Office of General Counsel (OGC) who would disagree with me and say there is plenty of precedent supporting its position in this case. OK, if you feel that way, OGC, take this case to the Solicitor General. I dare you. The Solicitor General makes the decision for the federal government on whether to ask the Supreme Court to hear a case. The Supreme Court turns down the vast majority of requests to hear cases but this isn't just any case. This is exactly the kind of case that the Supreme Court usually does agree to hear because there is now a conflict between the 7th Circuit and other Courts of Appeal on the construction of a federal statute. I think it's close to automatic for the Supreme Court to hear a case like this when it's the Solicitor General making the request. OGC, do you think this is the sort of fact situation that the Solicitor General wants to take to the Supreme Court? For that matter, OGC, is this the sort of fact situation that you want taken to the Supreme Court? The ball is in your court, OGC. What are you going to do? I know, you'll ask for rehearing en banc but after that's denied, what will you do other than curse the Appeals Council for not remanding the case for a hearing on the merits when it had a chance?

Telephone Problems?

     We can't get through by telephone to any Social Security field office this morning. We haven't tried all the North Carolina field offices but we've tried quite a number. How widespread is the problem?

Supposedly The First Public Burning Of A Social Security Card

Year not given. It looks old enough that some of the participants may now be drawing Social Security benefits.