Unions File Complaints Over Social Security's Failure To Implement Emergency Paid Leave

     From Government Executive:

Officials at three federal employee unions have filed formal complaints against the Social Security Administration for refusing to fully implement a law providing emergency paid sick leave to workers related to the coronavirus pandemic.

The American Federation of Government Employees and the National Treasury Employees Union both filed internal grievances this week accusing the agency of not complying with the sick leave law and refusing its collective bargaining obligations over the implementation of the new leave category. And the Association of Administrative Law Judges has filed an unfair labor practice complaint with the Federal Labor Relations Authority.

The Emergency Paid Sick Leave Act was signed into law in mid-March as part of Congress' first bill responding to the COVID-19 outbreak. It provides employees in both the public and private sectors with up to 80 hours of paid sick leave, as well as up to 10 weeks of paid leave at two-thirds of their regular pay for workers who have child and dependent care responsibilities due to school and daycare closures related to the pandemic.

This new benefit was to take effect April 1, and the Labor Department announced it would give employers a "non-enforcement period" until April 17 to allow employers to make changes to their payroll system to offer the leave. But to date, union officials said the Social Security Administration has dragged its feet.

The agency has faulted the Interior Business Center, which does payroll for Social Security and several other agencies, for being unable to implement the coding changes needed until July. ...

For its part, the Interior Business Center disputes Social Security Administration officials' laying of blame. ...

The Sky Isn't Falling -- At Least For The Social Security Trust Funds

     There has been a fair amount of speculation about the effects of the Covid-19 pandemic on the Social Security trust funds. This mostly comes from people who have always predicted doom for the trust funds even in better times and it's been little more than speculation.

     The first fairly solid projection I've seen is from the Penn Wharton Business School's Budget Model. I don't know how solid their Social Security trust funds projections have been in the past but they're not some think tank cranking out projections designed to either scare or reassure people. The Penn Wharton model had the combined trust funds running dry in 2036, which was one year later than Social Security's actuaries had it. Now, the Penn Wharton Budget Model projects a trust fund exhaustion date between 2032 and 2034. That's not as good but doesn't sound to me like the sky is falling.

     In any case, I'm not worrying about Social Security "running out of money." Even if the trust funds run dry, the agency would still be able to pay 76% of benefits just from FICA payments coming in. However, that scenario is no more than a right wing fantasy. Even members of Congress who are hostile to Social Security would not allow that to happen. There are far too many voters receiving Social Security. There will be tax increases or general fund transfers. The worst that might happen would be some very minor cuts and I'll be surprised if there are any cuts. Ultimately, the Social Security trust funds are an abstraction. What really supports Social Security is the support of the American people. Right wingers make the mistake of thinking that just because they don't like Social Security that it can't really be all that popular. That's wrong. Public support for Social Security is overwhelming and unwavering.

     We've got far more immediate crises to worry about. Relax about the Social Security trust funds.

Wisconsin Not Allowing Social Security Disability Recipients To Receive Pandemic Unemployment Insurance

     From the Sun Prairie Star:

People stopped traveling when the coronavirus pandemic hit, costing Jessica Barrera her job at Groome Transportation, an airport shuttle service with an office in Eau Claire.

So the 40-year-old single mother joined nearly 70,000 other laid-off Wisconsinites during that third week of March: She filed her first weekly unemployment claim. 

She filed another claim the next week. And the next. And the next. She continued until the Wisconsin Department of Workforce Development denied her claims in a letter that explained in bold, capital letters:

“THE CLAIMANT CANNOT RECEIVE SOCIAL SECURITY DISABILITY PAYMENTS AND UNEMPLOYMENT INSURANCE BENEFITS CONCURRENTLY.”

“I cried for days,” Barrera said. “I thought (unemployment assistance) was going to be my saving grace to help me get by until my job opened.” 

Barrera has polycythemia vera, a rare disease that causes her body to produce too many red blood cells. The condition can lead to strokes, blood clots, miscarriages and other complications.

She takes a blood thinner and has 16 ounces of blood removed from her body monthly to control her symptoms. She also says she grapples with depression and anxiety following a pair of family tragedies.

All that qualifies Barrera for Social Security Disability Insurance (SSDI), a federally funded program for people who have worked and paid Social Security taxes but can no longer perform “substantially gainful activity.”

SSDI guidelines allow and encourage part-time work so long as she does not earn more than $1,260 per month. “You have to stay poor to keep your health care to stay alive,” Barrera said.

About 175,000 working-age Wisconsinites rely on SSDI to supplement their income. But the Republican-controlled Legislature in 2013 passed a law barring that group from simultaneously receiving unemployment insurance after losing work.

George Wentworth, an unemployment insurance specialist with the National Employment Law Project, a nonprofit that supports protections for low-wage workers and the unemployed, said he knows of only one other state — North Carolina — that also explicitly bans tapping both programs. ...

Barrera is appealing with the pro bono help of Victor Forberger, supervising attorney for the University of Wisconsin’s Unemployment Compensation Appeals Clinic, who said he is representing about 20 people with similar cases. Forberger accuses Wisconsin of discriminating against people with disabilities, saying the denials run counter to Congress’ aim. ...

    I live in North Carolina. I have been told that the governor has ordered that Social Security disability recipients will qualify for Pandemic Unemployment Insurance. However, I'm not so sure that there aren't other states with the same issue as Wisconsin.

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.

This Isn’t Making Sense To Me

     From Federal News Network:

... While the Social Security Administration has been under pressure for not yet rolling out electronic signatures, the agency, which handles Medicare Part B enrollment applications on behalf of the Centers for Medicare and Medicaid Services, is launching an online form to digitize what has been a completely paper-based process. 

“You either walk it into a field office, you fax it in or you mail it in, but ultimately there’s going to be paper involved, David Ellison, SSA’s lead for digital transformation, said last Friday in an ACT-IAC webinar. “Right now, that isn’t happening, with the exception of some fax traffic that we’re picking up.” 

With the pandemic disrupting paper processes, Ellison said SSA is quickly putting together an online form that with have anti-spam CAPTCHA features built-in. 

“It’s not like the old ones, where you look at a grid and you have to pick out the bicycles, and if you get it all wrong, and you have to do it again. With the modern versions, that’s all done in the background,” he said. 

By pushing its anti-fraud measures to the background, Ellison said SSA strikes a balance between providing a straightforward, easy-to-navigate experience for the public, but still keeping fraud measures in place. 

“If someone is misrepresenting themselves, we have a lot of data, like the phone number they’re calling in with. If that’s mismatching with something that we have stored in our back-end systems, because we have a relationship with this citizen, we can steer that caller to someone who maybe is going to handle a fraud scenario, but we want to do it more in the background. We don’t want to expose all the citizens to an uncomfortable experience,” Ellison said. “We’re very lucky right now that these platforms are evolving to collect all this data and to be able to pass it along to our back-end fraud systems. ...

     I don’t understand. Are they designing something to help claimants or to stop fraud? How much fraud could there be in signing up for Medicare Part B? Will they really be treating every case where someone is calling from their child’s phone as if it were possible fraud? 

     Maybe the agency ought to get over its electronic signature paranoia especially for instances that involve a low potential for fraud. It’s not like requiring “wet” signatures gives any real protection against fraud.

Emergency Paid Sick Leave Problems

     From Government Executive:

... The first coronavirus response bill signed into law in mid-March included a provision called the Emergency Paid Sick Leave Act, which provides employees in both the public and private sectors with up to 80 hours of paid sick leave, as well as up to 10 weeks of paid leave at two-thirds of their regular pay for workers who have child and dependent care responsibilities due to school and daycare closures related to the coronavirus pandemic. 

Although the Labor Department offered employers a 30-day “non-enforcement period,” that ran out more than a month ago. As of Friday, the Social Security Administration still had not begun offering the benefit, and it has told stakeholders that the Interior Department’s Interior Business Center has said it will not have implemented it in its payroll software until July. 

The Interior Business Center did not respond to a request for comment, but a spokesperson told Federal News Network that it has provided a workaround to customer agencies until it can update the software. 

Couture said that Social Security has declined to use that workaround, proposing that employees file for weather and safety leave instead. Under this plan, employees would be paid their full pay rate, and likely would be forced to pay the remainder back once the new system is in place.  ...

     If you’re wondering what the Department of the Interior has to do with it, the story is that that agency operates something like a contractor. For a price they handle payroll functions for other agencies. I would have thought that Social Security is plenty big enough to handle its own payroll matters but apparently not. 

Memorial Day 2020

Delayed Stimulus Checks For Some On Social Securiy

     Some Social Security beneficiaries are still waiting on their economic stimulus checks, according to CBS News. Of course, the Social Security Administration gets caught in the middle. It's the Treasury which is making the payments.

Is This A Win For The ALJ Union? Seriously, I'm Not Sure

     From Government Executive:

The Federal Labor Relations Authority on Thursday announced that it would stay implementation of a new union contract set to be imposed between the Social Security Administration and the Association of Administrative Law Judges, reversing a previous ruling allowing it to proceed.

The judges union is one of several labor groups challenging the constitutionality of how members of the Federal Service Impasses Panel, which settles intractable disputes that come up during collective bargaining negotiations, are appointed.

In March, the FLRA denied a request from the judges’ union to block the Federal Service Impasses Panel from issuing an imminent decision imposing a new collective bargaining agreement between the union and the Social Security Administration, finding that the request did not fall under the narrow circumstances under which the FLRA can halt the impasses panel’s proceedings. ...

In April, the impasses panel issued a mostly pro-management decision, prompting the union to file a federal lawsuit in U.S. District Court for the District of Columbia, seeking to declare the panel’s decisions null and void. The union argued that because the impasses panel’s decisions cannot be directly appealed and panel members are supervised only by the president, they are principal officers and must receive Senate confirmation.

Although the Social Security Administration has said it would delay implementation of the new union contract due to the lawsuit, on Thursday the FLRA issued a new decision formally staying the panel’s decision from taking effect. In its ruling, the agency said the lawsuit constitutes a new “differentiating circumstance” necessitating this action. ...

Is This A Half Step Forward?

     From Emergency Message EM-20022 issued yesterday:

The purpose of this EM is to provide the Field Office (FO) and Payment Center (PC), and the Office of Hearings Operations (OHO) with temporary supplemental instructions for documenting appointment of a representative while the COVID-19 case processing procedures are in place. ...

To appoint a representative, our regulations require the claimant submit a dated and signed written notice. GN 03910.040 and GN 03940.003 require that the signatures on the notice of appointment and fee agreement be in pen-and-ink to provide a measure of protection of the claimant’s privacy and data integrity. ...

If the claimant’s signature on a notice of appointment (for example, Form SSA-1696) does not meet the standards listed in GN 03910.040 (e.g., signature appears to be electronic or a digitized image of a handwritten signature), follow the instructions below – ... 

Contact the claimant to confirm his or her signature, after verifying identity, and intent to sign following these steps: ...

Confirm that the claimant signed the appointment with intent to sign it using the following script:

• “We have received an appointment form with your electronic signature and need to ask you a few simple questions to confirm you signed it. Did you sign this form?”
• “And you understood that by electronically signing this form, you agreed [insert name of Appointed Representative on the SSA-1696] will now represent you on your claim with SSA, and [he/she] and [his/her] employees can obtain information about your claim from SSA?”...

75% Absentee Rate At Reopened IRS

     From the Washington Post (emphasis added):

The Internal Revenue Service had barely begun bringing its lowest-paid workers back to the office in late April when someone in the Philadelphia call center came down with a fever, forcing the third-floor staff to head home.

Within two days, an employee in the processing center in Kansas City, Mo., who routes paper checks for deposit was sick with coronavirus symptoms, too. Then the husband of a woman in accounts management in the Covington, Ky., office tested positive, leading managers to presume that she was infected.

The three service centers, among 10 campuses nationwide where the IRS is trying to reinstate 11,000 employees, had to partially close for a week for deep cleaning. ...

The tax behemoth that touches virtually every American has made the government’s most aggressive effort so far to recall its workforce. But like other federal agencies following President Trump’s order to reopen the country, the IRS is struggling to ensure the safety of its employees as it tries to chip away at a crushing backlog and serve the public. ...

As of Monday, about 3,000 customer-service and clerical workers had volunteered to return to the office, an absentee rate of almost 75 percent. ...