GOP Lawmakers Call For Reopening

      From Fedsmith:

A group of [Republican] lawmakers said that the interests of federal employee unions are being put ahead of those of Americans in making decisions about when to fully reopen agency offices.

A group of 14 Congressmen are the latest lawmakers to call for federal employees to return to work in agency offices in greater numbers to better meet the needs of their constituents. In a letter to agency leaders, they called for an immediate and safe reopening of agency offices, especially for those that offer in-person services that cannot be replicated virtually.

“As you finalize reopening and staffing posture plans with individual Federal agencies this week, we request that you consider the impact that continued closure of many Federal offices to the public has on millions of Americans, particularly elderly and low-income Americans who rely on the in-person services offered, particularly at Social Security Administration (SSA) field offices, across the country, and urge you to prioritize the reopening of Federal offices in the interests of all Americans, not just those of unions,” said the lawmakers in their letter. ...

     Democratic members of Congress won't be bashing employee unions and will be more interested in protecting employee health but they too have constituents who need something closer to normal service from their federal government than what we're getting now.

A Message From The Acting Commissioner -- Delay In Reopening Plan

From: ^Commissioner Broadcast <Commissioner.Broadcast@ssa.gov>
Sent: Tuesday, July 20, 2021 1:51 PM
Subject: Moving Forward

A Message to All SSA Employees

Subject: Moving Forward

As I enter my second week as Acting Commissioner, I would like to share a bit about my goals, objectives, and for our path forward.

Right now, I am spending much of my time listening to and learning from agency experts.  I am meeting with labor unions this week.  I also want to hear from you, staff and managers alike.  I am relying on you to help identify what we can improve, recommend solutions, and bring about change that helps us serve the public better.  If you have an idea you would like to share with me, please send it to the  ^Employee Ideas mailbox.

My goals and objectives for Social Security are straightforward, and they will drive my decisions every day. 

• Everyone who is eligible for benefits under the programs we administer should receive them.  It is up to all of us to identify and resolve any root causes of inequity in accessing our programs.
• We must treat our employees fairly and equitably.  That means supporting you in the career paths that you choose and recognizing that your success is critical to the success of our organization. 

I believe that when we observe or encounter disparities, we should first identify and address systemic barriers that contribute to these disparities before we assume there are deficits in the individuals, families, and communities we serve, or in colleagues with whom we serve.   

As our country rebounds from a pandemic that has changed how we engage in our communities, the need for our services is tremendous, particularly for people facing barriers to our services. I know you are wondering about what we are planning for the government-wide transition back to the office and are particularly interested in telework.  You may see in the media that yesterday most agencies finalized their plans for reentry.  I take this effort seriously, and we have been given a little more time to finalize our plan so that I can ensure it is informed by our employees and stakeholders.  Therefore, I will share more information soon.  Let me assure you that we will overcome challenges together – thoughtfully and safely.

Thank you for your work every day to help the millions of people who depend on our services.

Kilolo Kijakazi
Acting Commissioner

Win For Law Firms

      From Bloomberg Law:

The Social Security Administration must change its procedures for paying attorneys’ fees in disability benefit disputes to allow payments to law firms and payments for work done by lawyers who later join the government, the First Circuit held.

The administration’s requirement that attorneys’ fees be paid to individual attorneys and not to law firms is arbitrary and frustrates the statutory mandate to provide a reasonable legal fee for representing Social Security disability claimants, the U.S. Court of Appeals for the First Circuit said in a July 16 opinion.

The fact that only individual attorneys can serve as representatives in the disability claims process doesn’t justify a limitation on payments that ignores the “practical reality” that law firms “ordinarily are the ultimate recipients of fees paid to salaried associates,” the court said.

The court reached a similar conclusion with respect to the administration’s bar on paying attorneys’ fees for work completed by lawyers who later leave private practice to take a government job. The administration said this rule was necessary to comply with government-wide ethics requirements prohibiting officials from being paid to represent claimants before the administration.

The First Circuit disagreed, calling this logic “inscrutable” and “facially irrational.” ...

     The decision is in the case of Marasco & Nesselbush v. Collins, et al. 

     Social Security would only have to apply this in the relatively small First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) but if they don't apply it more generally there will be litigation elsewhere. Also, my hope is that those involved with Social Security policy on this issue know that something should have done about this decades ago.

SSI Changes Under Consideration

      There has been some interest in Congress in adding SSI provisions to the Budget Reconciliation bill being considered in the Senate. I have no idea how serious this interest is. The Office of Chief Actuary at Social Security has prepared estimates of the costs of various provisions that might be considered. These provisions are actually part of a standalone SSI bill but no standalone SSI bill can pass in the Senate because of the filibuster. The only way any of this happens is by getting folded into the Budget Reconciliation bill. The combined effect of all the provisions being considered would be $510 billion over the next ten years. I'm pretty sure that's not going to happen, at least not this year. However, the main part of this -- $350 billion -- is for increasing benefit amounts generally. Increasing income exclusions would cost another $60 billion and eliminating the in kind support and maintenance rule would cost $31 billion. We'll see whether any of those end up in the bill. Some other provisions under consideration have much lower costs and are more likely to be added:

• Exclusion of retirement accounts from resources
• Repeal of the disposal of resources for less than fair market value rule
  
• Clarifying the treatment of certain state tax credits
• Elimination of dedicated accounts for some past-due benefits
• Elimination of installment payment rules
• Extension of period of exclusion for certain payments
• Elimination of holding out rule
  

Saul Pens Op Ed For WSJ

      There is an op ed by ousted Social Security Commissioner Andrew Saul in today's Wall Street Journal. Saul claims to have administered Social Security in a nonpartisan way. He believes he's a victim of employee unions who want to reopen contract negotiations.

     Saul is certainly correct that the labor unions are most responsible for his firing. However, they were only out to get him because of his highly partisan effort to destroy the unions. I don't know why he expected them to turn the other cheek or for a Democratic administration to ignore their complaints.

     The absurd thing about this op ed is that Saul's claim to have administered Social Security in a nonpartisan fashion is being published in what must be the most highly partisan Republican editorial page in the country. That's hardly a good way to prove your non-partisanship. Perhaps he offered it to other newspapers first but they weren't interested.

     The most important thing about this op ed may be the fact that it sounds as if Saul accepts that he's been fired. There's no talk about litigation. The litigation would have gone nowhere but it would still have been an annoyance.

COLA Will Be High This Year

      Already, we're getting projections of what the Cost Of Living Adjustment (COLA) will be for Social Security this year. It's clear it will be far higher than what we're used to. The Kiplinger Letter is predicting it will be 6.3%. I don't know that they should be but Social Security recipients always seem happy to see large COLAs even though their purchasing power hasn't really increased.

Larson Approves

      The Chairman of the House Social Security Subcommittee has expressed satisfaction with the provisions of the appropriations bill covering Social Security recently passed by the House of Representatives. I’m sure the going will be slower in the Senate, however.

How Much Does Social Security Offset The Motherhood Penalty?

      From How Much Does Social Security Offset The Motherhood Penalty? by Matthew S. Rutledge, Alice Zulkarnain, and Sara Ellen King:

Click on image to view full size

House Appropriations Bill Advances

      I posted yesterday about the draft report on the appropriations bill covering Social Security under consideration in the House Appropriations Committee. I emphasized that it was only a draft. Well, that draft advanced yesterday. It's now been reported out by the House Appropriations Committee. Of course, it still must be considered on the floor of the House and in the Senate but it's moving forward quite rapidly compared to what has happened in recent years. The current fiscal year ends on September 30, 2021.

Lots Of Interesting Language In Draft House Appropriations Committee Report

      The draft House Appropriations Committee report on the Labor-HHS Appropriations Bill, which includes administrative funding for the Social Security Administration, is out. This hasn't been voted on even in committee, much less on the floor of the House of Representatives or the Senate. The report contains language showing appropriation amounts, which, if adopted, would be mandatory but it also contains a good deal of what we may call recommendations. Agencies aren't under a legal obligation to act on those recommendations but they always have to pay attention to them and often act on them. There is more of this sort of language than I can ever recall seeing for Social Security. Here are some excerpts from this draft (emphasis added): 

... LIMITATION ON ADMINISTRATIVE EXPENSES 

Appropriation, fiscal year 2022      $11,219,945,000 

Budget request, fiscal year 2022    12,341,896,000 

Committee Recommendation        12,219,945,000 

Change from enacted level         +1,000,000,000 

Change from budget request       -121,951,000 ...

The Committee provides an increase of not less than $650,000,000 to support frontline operations in field offices, teleservice centers, and program service centers. In addition, the recommendation includes the increase requested in the budget to replace losses and build capacity at the State Dis-ability Determination Services (DDS) agencies that make disability determinations for SSA.Within the recommended funding level, the Committee provides $89,500,000 for SSA to mail paper statements to all contributors aged 25 and older not yet receiving benefits ...

 The Committee considers the Final Rule ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council’’ (85 Fed. Reg. 73138, December 16, 2020) to be an unjustified erosion of due process for individuals who are appealing a denial of Social Security or SSI benefits. ...In light of the harm that would be caused by this policy change, the Committee strongly urges SSA not to exercise this authority ...

The Committee continues to be deeply concerned about the impact of Presidential Executive Order 13843 (July 10, 2018) on the judicial independence of adminstrative law judges (ALJs). The Order eliminates the competitive hiring process for ALJs and has the potential impact of converting independent adjudicators to political appointees, undermining long-standing principles of fair and unbiased consideration of matters of vital importance to the American people. ALJs must be independent decision-makers and it is the Committee’s expectation that SSA maintain the highest standards for appointment of ALJs. ...

The Committee recognizes that the pandemic disrupted progress SSA made with its initial disability claims backlog, and remains concerned about the adverse impacts disability claim hearings backlogs have on an individual’s ability to access their Social Security benefits. Accordingly, the Committee urges the Commissioner to prioritize the hiring of additional administrative law judges and requisite staff to adjudicate backlogged claims. In addition, the Committee directs the Commissioner to continue to prioritize efforts to reduce wait time disparities across the country by directing resources and workload assistance, as necessary, and to provide the Committee annual reports on efforts to reduce the hearing backlog for Hearing Offices in the bottom twenty of national ranking by average processing time. ...

The Committee is concerned about the time it takes SSA to effectuate favorable SSI and/or SSDI disability determinations and directs SSA to submit a report to the Committee within 180 days of enactment of this Act, on SSA’s procedures for paying past-due and ongoing benefits after a claimant has been found disabled.  ... 

The Committee believes that quality representation in matters with SSA assists claimants and beneficiaries, and can also help SSA work more accurately and efficiently. The Committee continues to support direct payment of fees to representatives, encourages the Commissioner to raise and index the cap on fees payable via fee agreement, and requests that the Commissioner add a Performance Measure on timely and accurate payment of representative fees to the Fiscal Year 2022 and subsequent Annual Performance Plans. ...

The Committee reiterates its support for well-managed telework programs in the Federal workplace, which have demonstrated benefits for human capital as well as continuity of operations. The Committee expects SSA to implement telework policies that support these goals while also strengthening service to the American public, including in-person service in community-based field offices. The Committee directs SSA to submit a report within 90 days of enactment of this Act detailing the agency’s telework policies and identifying any positions for which telework has not been provided or has been reduced from pre-October 2019 levels,along with the reasons for any telework reductions. ...

The Committee understands that during the COVID–19 pandemic, SSA is providing claimants with the option of a video hearing, a telephone hearing, or a postponement if the individual would prefer to wait until an in-person hearing is available. The Committee expects that once the COVID–19 pandemic ends, SSA will resume in-person hearings.

Post Covid Disability

      Scientific American has a piece on the threat of chronic disability from Covid-19. It warns of the possibility of a million Americans with long Covid overwhelming agencies such as the Social Security Administration.

     This may well happen but I can't say that I'm seeing it or hearing about it from others representing Social Security claimants. I'll be happy if a big wave of post Covid disability never arrives. A few months ago I wrote about taking on one client disabled by Covid but I haven't taken on any more such cases since then and that client already had major health problems before Covid-19 came along. He could have easily been pushed over the edge into disability by any serious infection, such as non-Covid pneumonia. Maybe the post-Covid cases will show up later. It's hard for most people to admit even to themselves that they're disabled. People procrastinate even as all reasonable hope for recovery fades away.

Hoist With Their Own Petard And Getting No Sympathy From Me

      From the Washington Post:

Ousted Social Security commissioner Andrew Saul, the Trump appointee who declared Friday he would defy his firing by President Biden, on Monday found his access to agency computers cut off, even as his acting replacement moved to undo his policies.

“I’m here to do the job,” Saul said from his home in Katonah, N.Y., where he had led the agency since the coronavirus pandemic forced most operations to shift in March 2020 to remote work, “but I can’t do anything with the communications shut down.”

 Saul, 74, called his firing and that of his deputy David Black, in an email from the White House Personnel Office, a “palace coup” ...

“There will be more,” said Saul, a wealthy former women’s apparel executive and prominent Republican donor who had served on the board of a conservative think tank that has called for cuts to Social Security benefits. “Stay tuned.” ...

His acting successor, Biden appointee Kilolo Kijakazi, took the reins Monday and was briefed by her staff on the agency’s top priorities, advocates in touch with her office said, including much anticipated planning for the safe reopening of Social Security’s national network of 1,200 field offices. ...

Senate GOP aides, speaking on the condition of anonymity to discuss political strategy, said they plan floor speeches starting this week ... to express their dismay with the White House. ...

Republicans also said they are considering procedural actions to block any permanent Biden nominees to the agency on the Senate floor.

“It’s not like Saul was a blazing partisan,” said one Senate GOP aide. “Our view is that longer terms for agencies like this exist for a reason.” ...

     There's so much here! Saul calls his ouster a "palace coup." What? Did he think he was a king? A threat of litigation? I'm sure the President is quaking in fear. Read the recent opinions of the Supreme Court and see if you think whatever lawsuit Saul files is going to get anywhere. Dark threats of procedural actions to block a nomination? I'm pretty sure that's not possible under current Senate rules. Saul not a "blazing partisan"? Are you kidding me? I can't even imagine what they think a "blazing partisan" would look like at Social Security if Saul wasn't one. Now they think that longer terms exist for a reason. Republicans are the ones who came up with the unitary executive theory that blew up longer terms. Do they think they're the only ones who get to use the unitary executive theory? Hoist with their own petard and getting no sympathy from me.

Saul "Off-Boarded"

      From CNN Politics:

The Biden administration has worked to off-board the fired commissioner of the Social Security Administration who said he would report to work on Monday despite being terminated on Friday, an administration official said.

"As with any employment termination, the government has taken steps to off-board Andrew Saul as we would any other former employee," an administration official says. 

Those steps should essentially prevent Saul, who was a holdover from President Donald Trump's administration and refused to resign when requested last week, from accessing the agency's systems after his termination. Saul previously told the Washington Post that he still planned to report to work on Monday by signing in remotely from his home in New York. ...

Disablity Claims Continue To Decline

      Below is a chart from Social Security showing the number of claims for Disability Insurance Benefit taken, sent for adjudication and approved since 1996.  Note that everything declined during the pandemic but the decline seems to be part of a longer term decline that has been ongoing since about 2011. We do not have such a chart for SSI disability claims. There's no doubt, however, that an SSI chart would show a precipitous decline during the pandemic.

Click on image to view full size

 

Social Security Legislation Coming Next Year?

      From the New York Times:

… Mr. Biden campaigned on increasing Social Security benefits for many Americans and moving to shore up the program’s finances, funded by higher payroll taxes on workers who earn $400,000 or more.

But his $4 trillion agenda has thus far excluded those efforts, which were also excluded from his first formal budget request as president. Administration officials have suggested privately that Mr. Biden will wait to push Social Security changes later in his term, once he has completed work on infrastructure and other efforts to remake the American economy with a larger role for government.

Mr. Brady and Mr. Crapo [two Republican Senators] alluded to that proposal in their reaction to the firing. “We are concerned that this politicization of the Social Security Administration is just the beginning of efforts to raise payroll taxes,” they said, “and seriously undermines bipartisan efforts to save Social Security for future retirees.

     Do Republicans want to filibuster a bill that would increase Social Security benefits in an election year? Is opposing an increase in the FICA tax that would only apply to those with high incomes a political winner for the GOP?

An Interview With Acting Commissioner

      From a May interview with Kilolo Kijakazi, the new Acting Commissioner of Social Security:

… Less access to application support services from community-based caseworkers to help their clients with the disability application process, needed medical care, and the associated medical records are all potential barriers that research suggests are more likely in communities of color and can prevent people from applying for federal benefits, for which they are eligible. Other research has shown that access to local Social Security offices can affect applications. …

Don't Know What They Don't Know About Social Security

      From a survey done by Nationwide Insurance:

Click on image to view full size

President Fires Saul And Black

      With no fanfare, the Office of Legal Counsel at the Department of Justice issued an opinion yesterday that the President may remove the Commissioner of Social Security from office notwithstanding the statutory provisions limiting removal from office. An opinion had been requested by the Deputy Counsel for the President.

     Update: Senator Grassley has tweeted that he's hearing that the President may oust Andrew Saul from his position as Commissioner. Senator McConnell has retweeted this saying "httI agree with @ChuckGrassley. This removal would be an unprecedented and dangerous politicization of the Social Security Administration."

     Further update: I've received several reports that there was a blast e-mail to Social Security employees at 4:30 today from an Acting Commissioner of Social Security indicating that Saul and Black are gone.

     And another update: The Washington Post reports that Saul still believes he’s Commissioner and plans to report for work on Monday — remotely from his home in New York city. Who’s going to break it to him?

ps://twitter.com/LeaderMcConnell/status/1413584718684168197?s=20

Paycheck Problem Affects 922 Social Security Employees.

      From Government Executive:

More than 900 Security Administration employees were left wondering Thursday how much of their regular paycheck they would receive at the end of the week, after a mishap caused their internal payroll software to report they would receive deposits of $0.00 for the pay period that ended July 2. ...

On Thursday, Social Security Administration spokesman Darren Lutz said the agency were still working with the Interior Business Center, which provides payroll services to around 150 federal agencies, on determining the cause, but that all 922 affected employees would receive at least a partial paycheck by Tuesday, SSA’s “official” pay day. ...

Not Such A Good Place To Work

     The Partnership for Public Service does an annual survey to determine the Best Places to Work in the Federal Government. The 2020 results are out and Social Security didn't do well at all. The agency came in as the 15th best place to work out of 17 large agencies.

    They also rated agency components.  Here are the rankings for Social Security's components, out of 411 total agency components:

• Deputy Commissioner for Analytics Review and Oversight -- 290

• Deputy Commissioner for Budget, Finance, Quality, Management -- 135

• Deputy Commissioner for Communications -- 256

• Deputy Commissioner for Hearing Operations -- 389

• Deputy Commissioner for Human Resources -- 252

• Deputy Commissioner for Operations -- 318

• Deputy Commissioner for Retirement & Disability Policy -- 267

• Deputy Commissioner for Systems -- 192

• Office of the General Counsel -- 101

• Office of the Inspector General -- 382