Institute Of Medicine Reports Forthcoming

     The newsletter of the National Organization of Social Security Claimants Representatives (NOSSCR), which is not available online, reports that the Institute of Medicine (IOM), a division of the National Academies of Sciences, is working on three "consensus reports" for Social Security which may be coming out later this year. These will deal with:

• Psychological testing, including symptom validity testing;
• Mental impairments in children, especially autism spectrum disorder and attention deficit hyperactivity disorder; and
• Speech and language disorders in children.

     Whatever else it may be, the IOM in this instance is basically a beltway bandit, receiving large sums of money for reports that are always so tentative and hedged that they're useless. I wonder what they'll tell Social Security about symptom validity testing. Social Security has been resistant to using it because of questions about its validity. My understanding is that this sort of testing would only apply to claimants with brain damage or intellectual deficiency. Since the agency is approving so few with either of these problems, I doubt that using symptom validity testing would matter much anyway.

Some Info On ABLE Accounts

     The Social Security Administration has released the following set of questions and answers to help its staff in dealing with inquiries about the new ABLE accounts:

A. Purpose of this EM [Emergency Message]

This EM provides important information regarding the Achieving a Better Life Experience (ABLE) Act (P.L. 113-295) and ABLE accounts. Specific guidance on how to treat ABLE accounts for Supplemental Security Income (SSI) income and resources purposes will follow in future instructions.

B. Background

On December 19, 2014, the President signed into law the ABLE Act. The ABLE Act was established to encourage and assist individuals and families with saving funds for the purpose of helping individuals with disabilities to maintain health, independence, and quality of life. Qualified ABLE programs will provide secure funding for disability-related expenses for qualified individuals with disabilities that will supplement, but not replace, benefits provided through private insurance, Medicaid, SSI, the individual’s employment, and other sources.

C. Information regarding ABLE accounts

1. What is an ABLE account?

An ABLE account is a tax-advantaged account, similar to a Section 529 qualified tuition program (QTP). ABLE accounts are administered by the State in which the individual resides and they must be established for the benefit of the individual. The designated beneficiary is also the owner of the account.

2. Who is eligible for an ABLE account?

To be eligible for an ABLE account, a person must be blind or disabled according to the Social Security definition of disability by a condition or conditions that began before age 26. Eligible individuals are limited to one ABLE account.

3. What is the maximum contribution for ABLE accounts?

Generally, ABLE accounts may not receive aggregate contributions during a taxable year in excess of the annual gift tax exemption (which is $14,000 for 2015). Each State will set a maximum balance for ABLE accounts.

4. Will ABLE account balances count towards the SSI statutory resource limit?

For SSI purposes, we will exclude as a resource the first $100,000 in an ABLE account.

5. What happens if an SSI recipient has excess resources held in an ABLE account?

If an individual is ineligible due to excess resources held in an ABLE account, we will suspend the SSI benefits without a time limit, but not terminate the benefits. The SSI recipient would remain eligible for Medicaid while in suspense.

6. Are ABLE accounts transferrable?

ABLE accounts are transferrable to family members who are also qualified individuals.

7. What distributions are allowed from ABLE accounts and what is their impact on SSI benefits?

Some qualifying distributions are education, housing, transportation, employment support, assistive technology, health and wellness. Qualifying distributions from the ABLE account would not generally affect SSI eligibility or payment amount. Distributions from an ABLE account for the purpose of housing expenses will be countable income for SSI purposes.

8. What happens upon the death of an ABLE account beneficiary?

Subject to certain outstanding debts, the State can file a claim against the ABLE account for reimbursement of any medical assistance paid on behalf of the account beneficiary after establishment of the ABLE account.

9. When will there be POMS instructions on ABLE accounts?

The Department of the Treasury will publish regulations early this summer and many States will have to pass legislation to establish the ABLE account program. After we receive more guidance from Treasury, we will issue specific instructions on how to treat ABLE accounts for income and resources purposes.

10. What should we tell the public if they ask how to establish an ABLE account?

ABLE accounts must be established under a program established and maintained by the individual’s State of residence. Refer individuals to their State Comptroller or Tax Office for questions concerning ABLE accounts.

Direct all program–related and technical questions to your RO [Regional Office] support staff or PSC [Program Service Center] OA [? This acronym isn't even on Social Security's own list of its own acronyms!] staff. RO support staff or PSC OA staff may refer questions or problems to their Central Office.

Class Action On Consultative Examinations In Bay Area

     From a press release:

A class action lawsuit was filed today in federal district court in San Francisco against the Social Security Administration (SSA) by three plaintiffs who were deprived of disability benefits because of SSA’s continued reliance on medical reports from a doctor who has been disqualified. The grossly deficient reports were based on cursory examinations (often lasting ten minutes or less), referenced tests that were never performed, and were inconsistent with plaintiffs’ medical records. On the basis of these faulty reports, plaintiffs who were no longer able to work were denied Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) benefits, essential to their well-being....

 Kevin Hart is a San Mateo County resident who was sent to Dr. Frank Chen for a medical exam to determine if he was still disabled and thus still eligible for his SSI and SSDI benefits. Dr. Chen, didn’t review Hart’s medical records, didn’t ask him about his condition, repeatedly interrupted Hart when he attempted to explain his diagnosis, and only spent approximately 10 minutes on a perfunctory examination. Dr. Chen’s report referenced tests he didn’t perform and failed to mention Mr. Hart’s primary disability, a leg and foot injury he sustained after being hit by a car— even though Hart needed a cane to stand during his exam. After Dr. Chen’s evaluation, Hart was notified that his benefits were being terminated because he was no longer disabled. He was never notified that Dr. Chen had been disqualified, even though Dr. Chen’s report was an important reason for the decision in his case. ...

The lawsuit seeks to require the SSA to reopen all prior determinations that terminated or denied SSI and/or SSDI benefits and that relied on a consultative examination report from Dr. Chen, and offer Plaintiffs an opportunity for a new exam from a qualified medical professional. ...

Plaintiffs are represented by Morrison & Foerster LLP, the National Senior Citizens Law Center and the Legal Aid Society of San Mateo County.

Appropriations Hearing Scheduled

     The Labor, Health and Human Services, Education and Related Agencies Subcommittee of the House Appropriations Committee has scheduled a hearing for February 26 at 10:00 on "The Vital Responsibility of Serving the Nation's Aging and Disabled Communities."Social Security Commissioner Carolyn Colvin is scheduled to testify.

"To Ensure Full DI Benefits Continue To Be Paid"

     A press release from the Social Security Subcommittee of the House Ways and Means Committee:

 U.S. Congressman Sam Johnson (R-TX), Chairman of the House Committee on Ways and Means Subcommittee on Social Security announced today that the Subcommittee will hold a hearing focused on the financial status of the Disability Insurance (DI) and Old Age and Survivors Insurance Trust Funds, and the available legislative options to ensure full DI benefits continue to be paid. The hearing will take place on Wednesday, February 25, 2015 in B-318 Rayburn House Office Building, beginning at 2:00 p.m.

Netherlands No Model For U.S. On Disability Benefits

     The Center on Budget and Policy Priorities gives a primer on why the Netherlands probably won't be a model for the United States when it comes to disability benefits. Here's the gist as well as a chart:

 Even after reforms, the Netherlands spends far more than the United States on disability benefits. ...

Until the mid-1990s, the Netherlands spent six to eight times as much on disability programs as the United States, relative to GDP; even now it spends about twice as much.  The gap has shrunk because the Dutch cut spending, not because the United States expanded it.

      If the GOP wants to "reform" U.S. Social Security disability so that it looks like the Dutch program, I'm all in favor. I think such a proposal would get a lot of Democratic sponsors. Bring it on!

Where's The Outrage?

     From the National Organization of Social Security Claimants Representatives (NOSSCR) newletter (not available online) this is a report on Social Security hearing office processing time as of the end of January. Note that the "fastest" office is processing requests for hearings in 295 days while the slowest is taking more than two years. Tell me again how Social Security is using video hearings to even workloads around the country. The bigger problem, though, is that there is little public notice of these disgraceful backlogs.

Cutting Social Security Disability Will Be Tough

     The "Monkey Cage" at the Washington Post details some of the reasons why "reform" of Social Security disability, if "reform" means cutting, will be almost impossible. Maybe the most important reason listed is that there's no constituency lobbying for cuts in Social Security disability. The only ones lobbying for cuts are a few "scholars" at "think tanks" and the right's Social Security "scholars" are an unimpressive group.

Rep. Johnson Introduces Bill

     Sam Johnson, the Chairman of the House Social Security Subcommittee, has introduced a bill that would prevent a person from receiving both unemployment insurance benefits and Social Security Disability Insurance Benefits at the same time. The President has included the same proposal in his budget for the next fiscal year. That sounds great to many people. However, there are a few problems.

• All but two states limit unemployment insurance to 26 weeks or less. There's a five month waiting period for Disability Insurance Benefits. You do the math.
• Many, perhaps most, states already reduce unemployment insurance due to the receipt of Disability Insurance Benefits, leading to the possibility of a double offset.
• A high percentage of Disability Insurance Benefits recipients also get Supplemental Security Income (SSI). SSI benefits are already reduced due to the receipt of unemployment benefits, leading to the possibility of a double or even triple offset.

     The potential savings from this proposal are trivial. My guess is that it will be difficult to draft a bill that doesn't cause double or even triple offsetting of benefits. Even if you can get a bill drafted, implementing it will probably cost more than it can save. Other than these problems, it's a great idea.

Consultative Examinations Still Suck

A very small diabetic foot ulcer.  Not my client's foot.

 

    Social Security recently sent one of my clients for a consultative medical examination. She's a diabetic. At the time of the examination she has an ulcer on one of her feet. The consultative doctor records this fact that she told him about the ulcer. The claimant was and is complaining more than anything else about her feet, not just the ulcer but other quite significant foot problems as well. There's no mention in the report of an examination of the feet. The client confirms that she was never asked to remove her shoes and socks.

     There's a message tacked to the wall in the examining rooms at my physician's office telling diabetics to remove their shoes and socks since the physician will examine their feet. Probably, there's a similar message in the examining room where you're seen. That's standard medical practice. I'm a lawyer but I know very well that failing to examine the feet of a diabetic is bad medical practice even when the patient is not complaining of an ulcer on her foot. When a diabetic patient is complaining about her feet and specifically mentions a foot ulcer, failing to examine the feet is enough to make one's jaw drop in any situation other than a Social Security consultative examination. It's sort of what you expect in a Social Security consultative examination, though.

This Is Your Best Argument?

     From the testimony of  Dr. Philip R. de Jong, a Dutch professor, called by Republicans to testify before the Senate Budget Committee (emphasis added):

The reformed Dutch DI scheme purports to cover only those that have hardly any productive capacity left, and to provide other workers with disabilities with strong incentives to remain active. The results for the first nine years of the operation of the new scheme show that inflow rates have dropped substantially to levels that are reasonable by international standards, and showed to be robust against the deep recession of 2008-2013. The incentive structure that steers the behaviour of employers and long-term sick workers proves to work.

     Even though de Jong presents the Dutch Social Security disability program as only covering those who "have hardly any productive capacity left", 8.3% of the Dutch population receives disability benefits while only 5.9% of Americans receive the benefits! The Netherlands only achieves its low rate of disability by requiring employers to spend large amounts of money on rehabilitation. The United States gets to a much lower rate of disability by a simpler route; it just denies most disability claims, imposing economic hardship on huge numbers of disabled people.

Future Funding Debate

     John Fritze at the Baltimore Sun has written a good summary of yesterday's Senate Budget Committee hearing. The hearing was supposed to focus on Social Security's Disability Insurance Trust Fund but often seemed to be a debate over future funding of the nation's entire Social Security system. A short version of the Republican position would be that the Social Security trust funds are going to run out of money in 18 years which would result in significant cuts in Social Security benefits so it's vital that Congress enact significant cuts in Social Security benefits today. A short version of the position of the Democrats would be that there's no need for any cuts in Social Security benefits if we just eliminate the cap on wages covered by FICA, a loophole that only benefits wealthy people.

Does This Look Out Of Control?

From Acting Commissioner Colvin's Testimony Before Senate Budget Committee

Acting Commissioner Expects Re-Nomination

     At today's hearing before the Senate Budget Committee, Acting Social Security Commissioner Carolyn Colvin was asked about her nomination for a term as Commissioner of Social Security. She said that she had not been re-nominated since the new Congress began but that she expected to be re-nominated.

Off Topic: Can Anyone Replace Jon Stewart?

     I'd say that no one can really replace Jon Stewart at The Daily Show. John Oliver has certainly proven that he can do it for the short run but I doubt that anyone can do it for the long haul. What do you think?

Just Ignore The Claimant's Wishes?

     I'm seeing and hearing of instances where Social Security is trying to schedule video hearings or assigning cases to remote hearing offices which could only hear a case by video despite the claimant's previously expressed desire not to have a video hearing. Is this just happening around here or is it happening in other parts of the country as well? Is this just a series of mistakes or the result of deliberate decisions made at higher levels? I wonder if trying to ignore the claimant's wishes is the agency's way of dealing with the fact that its effort to discourage resistance to video hearings is actually encouraging resistance.

OMB Clears Proposed Rule On Submission Of Evidence

     Just in time for tomorrow's hearing before the Senate Budget Committee, the Office of Management and Budget (OMB) has cleared Social Security's proposed rule requiring the submission of all evidence in Social Security disability claims. We can only hope that the agency made dramatic changes after this was originally published because the original proposal was completely unworkable.

     After OMB clears a regulatory proposal, the Commissioner has to sign off on it before it is published in the Federal Register. Typically, the Acting Commissioner has been taking a few weeks to review these before signing off on them. However, she can sign off immediately if she chooses. So far, the Office of Federal Register doesn't show the receipt of the final regulations. After publication, new regulations typically go into effect in 30 days. 

     I cannot emphasize too much how unworkable the original proposal was. Requiring the submission of "everything" sounds great but imposing this requirement without defining what "everything" means could bring about the collapse of representation of claimants. That would not just be bad for attorneys or their clients. The Social Security Administration is not prepared to cope with hundreds of thousands of unrepresented claimants, nor, for that matter, is Congress since that's where claimants turned before attorney representation of Social Security claimants became widely available. I speak from experience. I was around when there were few other attorneys doing this kind of work.

Senate Budget Committee Hearing

     The Senate Budget Committee has scheduled a hearing for Wednesday on "The Coming Crisis: Social Security Disability Trust Fund Insolvency.” Here's the witness list:

• Carolyn W. Colvin, Acting Commissioner of Social Security, Social Security Administration
• Dr. Mark Duggan, Wayne and Jodi Cooperman Professor of Economics, Stanford University
• Dr. Philip de Jong, Professor of Economics, University of Amsterdam - Amsterdam School of Economics
• Kate Lang, Staff Attorney, National Senior Citizens Law Center

Prospects For Disability Trust Fund Looking Up

     The Baltimore Sun is running an article claiming that "The number of people receiving disability insurance payments from the Social Security Administration declined last year for the first time since 1983 ..." I'm not sure how they figured that since the website of the Office of Chief Actuary at Social Security shows an increase of about 12,000 rather than a decrease. However the article is correct in showing that the number of claims filed and applications approved is down sharply over the last four years. The number drawing benefits has actually declined over the last four months and there's a good chance that this decline is a trend that will continue for several years as baby boomers who went on disability benefits a few years ago age into retirement benefits. Interestingly, Stephen Goss, Social Security's Chief Actuary, is quoted in the article as saying that "The disability applications we have coming in now are even lower than we were assuming", suggesting the possibility of some change in the next projection for the Disability Trust Fund, due out sometime later this year.

Social Security In 1940