Biden Administration Tells Agencies To Negotiate Re-Opening With Unions

      From Fedweek:

New workplace planning guidance from the Biden Administration stresses in several places that agencies must “satisfy any applicable collective bargaining obligations, and provide ample notice to any affected employees,” before making changes.

The joint OMB-OPM-GSA memo notes President Biden’s executive order stating that it is the policy of the government to “encourage union organizing and collective bargaining.” It does not specify issues over which agencies must bargain nor what form bargaining should take; formal negotiations for example might be drawn out over weeks.

“Labor relations obligations may be addressed issue by issue for aspects of the agency’s overall plan for reentry and post-reentry. For example, an early issue to surface to employee representatives may be the agency’s plan for ample notice to employees. Also, for example, an agency may decide to engage with employee representatives on aspects of its post-reentry personnel policies separate from labor relations engagement on the updating of the agency’s COVID-19 workplace safety plan,” it says.

After that, employees who will be returning to the physical workplace or who will have altered work schedules should be given advance notice; the length can “vary based on the effect of the change on particular employees” but normally would be at least 30 days. …

     It would help if there were some basic trust between labor and management at Social Security but there isn’t. It would also help if the union would not be trying to keep employees working completely from home forever regardless of what that does to public service but I expect that's what they'll be asking for.  For that matter, does Social Security have to negotiate with the union over going back to the telework status quo ante Covid-19? That's not clear to me. In any case, I think a return to something like the telework status quo ante Andrew Saul to be more likely.

NADE Newsletter

      The National Association of Disability Examiners (NADE), a voluntary organization of employees who make disability determinations for Social Security at the initial and reconsideration levels, has released its Summer 2021 newsletter.

No Sunset On The Eric Conn Fiasco

      There's a new book out that deals in part with the Eric Conn fiasco, Twilight In Hazard, by Alan Maimon.

Happy Birthday APA

  

     Today is the 75th birthday of the Administrative Procedure Act (APA). The APA has been enormously influential. Most states have adopted their own APAs.

     I don't think the Social Security Administration has ever explicitly acknowledged that the APA applies to them but it has certainly influenced them. On the other hand, the APA was based to some extent on practices already followed at Social Security.

Disability Claims Projected To Soar

 

From Social Security's Budget Projections

Budget Projections

       Some excerpts from Social Security's budget projections (bolded) with my comments:

     "The Budget would increase staffing for frontline operations including State DDSs by over 6 percent." -- You say that as if frontline staffing is your real priority but if the agency gets what's proposed, its funding goes up by almost 10% but staffing only increases by 6%.

      "Over $2.7 billion for current staff, additional hiring, and other expenses for the State DDSs to make our disability determinations. This amount includes funding for 1,300 additional employees we are hiring in FY2021, an increase of about 10 percent." -- OK, so DDS staffing goes up 10%, which corresponds with the 10% increase in the budget. However, "frontline staffing" which includes DDS only goes up 6%. If I'm doing the math correctly, this means that "frontline staffing" apart from DDS goes up by a lot less than 6%. 

     "More than $2.1 billion for IT services funding to help us maintain and continue modernizing our large IT infrastructure, as well as increase our digital and automated services." -- The FY 2021 IT number was $1.9 billion so the projection is for an 11% increase which is a bit above the approximately 10% overall budgetary increase. However, contrast this with the 6% increase in frontline staffing and you get an idea of management priorities.

     Overtime:

• FY 2020 (actual) 1801 FTEs 
• FY 2021 (projected) 1,155 FTEs 
• FY 2022 (projected) 1,800 FTEs

 -- They expect to get a nearly 10% increase in funding but overtime will be slightly less in FY 2022 than in FY 2020. How do they expect to work off the backlogs at their field offices and payment centers? As we'll see below, the answer, at least for the payment centers, is that they don't expect to work off the backlogs.

      Disability claims receipts:

• FY 2020 (actual) 2,213
• FY 2021 (projected) 2,491
• FY 2022 (projected) 3,111

-- I don't understand the FY 2021 number. There have been far fewer disability claims filed in the current fiscal year than the last so why are they saying it's up? Anyway, they're projecting a 25% increase in disability claims in the next fiscal year. That's as good a guess as any but nobody knows. It could easily be a good deal more or less than that.

     National 800 number: Average speed of answer projected to go down from 15 minutes to 12 minutes. -- That still sucks

     Office of Hearings Operations Production per Workyear: 

• FY 2020 (actual) 93
• FY 2021 (projected) 80
• FY 2022 (projected) 103

-- I don't know what these numbers mean but if the are meaningful, they're saying that productivity at the hearing offices has taken a major hit during the pandemic but will soar in the next fiscal year. If these numbers mean anything, OHO employees should knock off the talk about how they've been just as productive working from home. Also, it would be nice if we had productivity numbers for other agency components.

     "We plan to hire ALJs by the end of FY 2022 to ensure we have adequate resources in our hearings operations." -- I think you may need them sooner but I'm glad you're planning for this. I hope you haven't forgotten that you need additional staff to go with those ALJs. Also, remember it takes time to hire and train people.

     "In FY 2022, we plan to reduce the PC backlog from 4.2 million actions to 4.14 million actions." -- That's almost no improvement in the backlog. Sounds like the payment centers aren't your priority.

     In FY 2022 the agency expects to " Begin nationwide rollout of the modern HACPS that increases the accuracy and efficiency of disability case processing for our hearings offices and Appeals Council." -- What is HACP? How does it increase accuracy and efficiency?

House Social Security Subcommittee Finally Schedules A Hearing

     From a press release:

 House Ways and Means Social Security Subcommittee Chairman John B. Larson announced today that the Subcommittee will hold a hearing on “Equity in Social Security: In Their Own Words,” on Tuesday, June 15, at 2:00 PM EST.

     Note that it appears that this is not an oversight hearing. It sounds like there would be no witness from the agency.

More On Budget

     From CNBC:

President Joe Biden’s 2022 budget could give the Social Security Administration a $1.3 billion — or 9.7% — boost in funding. ...

The money would allow the Social Security Administration to pursue a host of improvement efforts, Social Security Administration Commissioner Andrew Saul said in the agency’s budget overview. ...

The money could help reduce the hearings backlog, bringing the annual average processing time for a decision down to 270 days in fiscal year 2022 from 386 days in fiscal year 2020 , according to the Social Security Administration’s estimates.

It could also help increase the number of initial disability claims completed by 720,000 – to 2,757,000 in fiscal year 2022 from 2,037,000 in fiscal year 2020.

The 800 number wait times could also drop to 12 minutes in 2022 from 16 minutes in 2020. ...

More than $5 billion of the proposed $14.2 billion budget would go to payroll costs for frontline employees who work at the administration’s field offices, 800 phone number and processing centers, according to the Social Security Administration.

Additionally, more than $2.7 billion would be earmarked for disability determinations, including existing staff, new hires and other expenses at state disability determination centers. The administration plans to maintain the 10% increase in staff — or 1,300 additional employees — that it took on in the 2021 fiscal year.

More than $2.1 billion would fund the modernization of the administration’s IT infrastructure.

Another $1.7 billion would pay for the expansion of the anti-fraud disability investigations program, as well as the completion of program integrity reviews.

More than $1.1 billion is slated for payroll costs for employees in the hearings division.

 In addition, $96 million would be dedicated to additional outreach for Supplemental Security Income, or SSI benefits. The goal would be to contact vulnerable people who are eligible for benefits, such as adults and children with disabilities, and the homeless.

Coming Today

      The government's brief in U.S. v. Vaello-Madero, a case pending at the Supreme Court, is due today. The issue in Vaello-Madero is whether it's constitutional to deny Supplemental Security Income (SSI) benefits to U.S. citizens who reside in Puerto Rico and other territories.

     President Biden has expressed support for legislation extending SSI to territories but there is little hope that legislation will pass. His Administration has not yet taken a position in Vaello-Madero. 

     The traditional principle has been that the Solicitor General, who handles cases for the federal government at the Supreme Court, should defend the constitutionality of any statute. Even before Trump came to office there had been exceptions to this princriple. The Trump Administration completely abandoned the tradition of defending the constitutionality of legislation it opposed. Joe Biden is a very traditional President but this case provides a strong temptation to abandon tradition. 

     The Solicitor General has already obtained two extensions of time to file a brief. In support of the last request for an extension of time, the Solicitor General said that "the brief requires consultation with a number of components of the government." 

     Extending SSI to Puerto Rico would be a big deal. There have been estimates that several hundred thousand people could qualify for benefits. Handling all those claims with no phase in and no time to prepare would be an enormous logistical challenge for the Social Security Administration that would affect operations across the entire country.

     Update: The government hasn't yet filed its brief but the President has released a statement saying that although he believes that SSI should be available in territories that his Administration will follow the conventional practice and defend the constitutionality of the statute.

     Further update: The Solicitor General had finally filed a brief. Don’t expect anything original in the brief. There’s a lot of talk about the income tax not applying to Puerto Rico and stare decisis.

Social Security’s First Home

 

Originally built for Coca Cola, the Candler Building in Baltimore was Social Security’s  first home

I Can’t Quite Figure An Explanation For This One

      From WKMG:

ORLANDO, Fla. – The Social Security Administration claimed a survivor of the Pulse nightclub shooting in 2016 was never eligible to receive disability benefits, despite being shot several times and unable to work.

Tony Marrero said the agency sent him letters claiming he had to refund the money, which amounted to $20,792. ...

Marrero said he endured several surgeries and a lot of pain after a gunman stormed the Orlando nightclub on June 12, 2016.

“I got shot four times in my lower back. The muscle was completely shattered and I had a hole in my back,” he said. “My left arm was completely shattered. I was supposed to lose this arm, but I didn’t give up, and I told the doctors to give it some time because I have movement in these two fingers.”

Marrero said his injuries prevented him from going back to work at one of the area’s theme parks.

“I could not work. I was out of work for a year-and-a-half,” he said. “I wasn’t able to walk. I wasn’t able to use this arm properly. Notw only that, I worked at a theme park, so psychologically and mentally, I wasn’t prepared to be around big crowds.” ...

Soon after he was cleared to return to work, Marrero said he started receiving letters from the Social Security Administration, which read: “Our records show you were not entitled to disability benefits.” ...

The agency claimed Marrero owed all of the money back and they also dinged his credit report, which has now prevented him from getting a mortgage. ...

News 6 contacted the Social Security Administration to ask why Marrero was retroactively denied benefits. ...

One day later, the agency contacted Marrero and said they were reopening his case. ...

One week later, Social Security contacted him again and told him they were clearing the $20,000 debt. ...

Hard To Think Of A Title For This One

      From the Bangor Daily News:

New allegations that late artist Robert Indiana sexually abused teenagers in the 1980s came to light during a Waldoboro man’s sentencing for Social Security fraud. 

Wayne Flaherty, 53, claims the unreported income he received from 2000 through 2018 outside of his Social Security checks came as “hush money” from Indiana, the Portland Press Herald reported.

Flaherty pled guilty in January and was sentenced to three years of probation with 240 hours of community service and ordered to pay the Social Security Administration $141,214 on May 20.

Flaherty’s lawyer, David Beneman, said in his sentencing memo that the more than $846,000 Flaherty received during that period was intended to keep him quiet about alleged sexual abuse that started when Flaherty was a teenager in the 1980s, the paper reported. ...

"Close Proximity Of Time"

      A newly posted notice from the Office of Management and Budget about proposed regulations filed seeking approval:

AGENCY: SSA	RIN: 0960-AI64	Status: Pending Review
TITLE:Flexibility in Evaluating "Close Proximity of Time" due to COVID-19-Related Barriers to Healthcare
STAGE: Interim Final Rule	ECONOMICALLY SIGNIFICANT: No
RECEIVED DATE: 05/28/2021	LEGAL DEADLINE: None

Final Work Reentry Plan Required By July 19

     From Government Executive:

The Biden administration is asking agencies to submit by July 19 finalized plans for returning federal workers to their offices.  ...

“Agencies will need to have finalized their plans for both reentry and post-reentry procedures and policies by July 19,” said a task force email to agencies on Tuesday, sent in collaboration with the Office of Management and Budget, the Office of Personnel Management and the General Services Administration. “Agencies may submit earlier at their discretion.”

The plans should build off the draft versions that need to be submitted to OMB by June 18 and must include phased reentry schedules and other safety measures informed by current guidance from the Centers for Disease Control and Prevention, the task force, the Occupational Safety and Hazards Administration and any other relevant guidance, the email said.  ...

The task force also said agencies must “satisfy applicable collective-bargaining obligations and provide ample notice to any employees who will be returning to the physical workplace, who will have altered work schedules, or who will otherwise have altered work circumstances, consistent with the agency’s intended post-reentry work environment.” ...

Axios reported on Tuesday that White House offices will bring back all employees in person between July 6 and July 23, with some exceptions.  ...

 

FTEs -- This Year And Next

      The Biden Administration has released its entire Fiscal Year (FY) 2022 Budget proposal. We already knew that it would call for a big hike in the agency's administrative budget, from $13.7 billion to $14.8 billion, an 8% increase but the entire proposal goes into much greater detail. The part that interests me is the projected number of Full Time Equivalent (FTE) employees (page 1,241).  The proposal shows the FTE number for FY 2020 as 59,574 (actual), for FY 2021 (estimated) as 59,355 and for FY 2022 (projected) as 60,586. 

     A couple of things stick out. First, overtime only went down by 0.4% between FY 2020 and FY 2021. If there's been a decline in performance at Social Security, in general, it's not because of a lack of overtime. In fact, with the amount of overtime almost stable, one would expect an improvement in performance since there are fewer time-consuming disability claims being filed. However, I've seen the opposite from the field offices and the payment centers with backlogs going up substantially. Hearing office performance hasn't been negatively affected but their workloads have been way down.  Second, there's an increase of 1,231 FTEs or 2% from FY 2021 to FY 2022 projected if Social Security gets the entire appropriation recommended. I don't understand. The budget goes up by 8% but the number of FTEs only goes up by 2%? Where's the rest of the money going? Will we once again see an increased operating budget drained away by IT? Of course, IT is needed but you have to have some balance with current operations. These projections tell me that Social Security management is largely unconcerned with public service.

     Update: There was a comment posted saying that federal FTE numbers do not include employee overtime. It doesn't make sense to me to compute FTEs that way, especially for Social Security which usually uses a lot of overtime, but that's the way they do it.

Memorial Day 2021

 

It’s A Disgrace

      Senator Bill Cassidy (R-LA) believes that federal employees, including Social Security employees have been sitting at home doing nothing while being paid over the last year. Apparently, he received a letter from Andrew Saul blaming employee unions for poor service at Social Security.

Service Delivery During And After The Pandemic

      From the New York Times:

When the pandemic struck last year, the Social Security Administration shut down its national network of more than 1,200 offices as it scrambled to protect the public and its employees from the coronavirus. ...

The agency is slowly bringing back workers in accordance with safety guidelines established by the federal government.

But operations are not likely to look the same as they did prepandemic, and a segment of S.S.A. workers may continue working remotely, a significant shift for the agency, which paid benefits to 69 million Americans in 2019. ...

Social Security’s consideration of a larger role for telework is a sharp departure from its stance in November 2019, when it ended a work-from-home pilot program. ...

There has been a sharp drop in applications for S.S.I., and for disability insurance. ...

While a great deal of routine Social Security business is now transacted via its website, field office staff provide in-person assistance on complex matters, in particular on applications for disability insurance and S.S.I., says Manasi Deshpande, an assistant professor of economics at the University of Chicago.

“Especially for people with lower socioeconomic status, being able to get in-person information and assistance with the application is critical to their decision to apply,” Dr. Deshpande said. “Without it, they just don’t apply.” ...

In the 10-year period Dr. Deshpande studied, Social Security closed 118 field offices, a cost-cutting move. She estimated that during that period, a total of 786,000 applicants for disability insurance and S.S.I. were discouraged from applying.

The impact of closing all field offices during the pandemic has been far greater, Dr. Deshpande said. “You’d probably need to multiply the estimates from the paper by a few times to see the effect of closing all the offices,” she said. “The 10 percent decline we measured took place with neighboring offices absorbing some of the applicants. It’s likely a much larger effect with all the field offices closed.” ...

Agency data shows a 29 percent decline in S.S.I. awards from July 2020 to April 2021 compared with the same period a year earlier, and disability awards are down 17 percent over that period. Taken together, up to 330,000 people will miss out on these benefits over a one-year period, according to an analysis of agency data by David Weaver, a former associate commissioner in Social Security’s Office of Research, Demonstration and Employment Support. ...

Social Security has a $1.5 billion budget for “program integrity,” but Congress limits that spending to reviews of disability awards that are aimed at removing people from the benefit rolls.

“A more common sense definition of program integrity would include the idea of making sure that people who are eligible for benefits are receiving them,” Mr. Weaver said. ...

Saul On Telework

From: ^Commissioner Broadcast <Commissioner.Broadcast@ssa.gov>

Sent: Friday, May 28, 2021 1:30 PM

A Message to All SSA Employees

Subject:  Update on Telework

I want to begin to talk with you about the future of our operations post-pandemic.  First, let me make clear that this is a separate conversation from our current work during the pandemic.  For now, we continue to operate under our COVID-19 Workplace Safety Plan including maximum telework and office capacity limits.

Agencies across government have gained real-time telework experience since March 2020.  The pandemic forced us to implement new ways of doing business, which accelerated some positive changes and highlighted areas where we need to make additional improvements.  We have done a great job under difficult circumstances ensuring our key services continue.  Still, there are areas where we are falling behind.

Part of the reason for service degradation could be inefficiency in business processes due to the temporary but necessary changes we made during the pandemic.  For example, requiring the public to mail in important documents like drivers’ licenses for a Social Security card is not sustainable, but iSSNRC and video and express appointments will help address that workload.  We also know that not all work is portable and some members of the public, in particular our vulnerable populations, are best served in person.

The pandemic provides us a unique opportunity to build a new normal that improves public service.  A part of that opportunity is to reconsider how we use telework.  As a result, I have asked each component’s Deputy Commissioner (DC) to reassess telework opportunities within your components considering all we have learned during the last year. Generally, we expect to increase telework opportunities from our pre-pandemic levels. We will also be seeking input from the unions and meeting any applicable labor obligations.

Public service must remain the key driver, but issues like employee retention, recruitment, morale, space savings, continuity of government operations, and the environment will also inform our decisions.  Additionally, we are participating in a government-wide initiative about the future of work, which will guide our decisions including when more employees will return to the office.

We will continue to follow the Administration’s science-driven lead on operating during the pandemic, and I will continue to share new information with you as we receive it.  At the same time, we must plan for how the agency can best perform in the future.

I appreciate that telework is important to you and for your ability to plan in your personal lives so I wanted to take a moment to let you know we are working on it. Thanks again for all you are doing to be sure we take care of the people who depend on us.

Andrew Saul

Commissioner

AAJ Hearings To Remain A Possibility As CRA Resolution Fails

      In the twilight days of the Trump Administration, Social Security adopted new regulations allowing Administrative Appeals Judges (AAJs) to hold hearings on disability claims. Previously, only Administrative Law Judges (ALJs) were able to hold such hearings. AAJs have only handled cases pending on review at the Appeals Council. This has been concerning since AAJs, unlike ALJs, have not been thought to enjoy decisional independence.

     The Congressional Review Act (CRA) permits Congress to disapprove "midnight" regulations adopted as an Administration is leaving office. CRA resolutions may not be filibustered. A CRA resolution was introduced to disapprove the AAJs regulations. The problem with CRA resolutions is that they must be acted upon within a certain number of days. The computation of when the days start to run is a little tricky but, apparently, the time ran out yesterday but no action was taken on the CRA resolution on the AAJ regulations.

     I would be surprised to see any AAJ hearings scheduled in the near future. There's no plausible justification since there are enough ALJs to handle the current workload and Democrats control the White House, Senate and House of Representatives. Further out, who knows?