Problem Avoided

 

     From the Detroit Free Press:

The pandemic-related economic shutdown in 2020 triggered all sorts of anxiety, including oddly enough a fear that those who turn 62 next year would be stuck with drastic cuts to their Social Security benefits. ...

The reason? A key wage index that Social Security uses as part of the calculation of benefits looked like it was set to plummet during the 2020 economic slowdown. 

In Congressional testimony in July 2020, Social Security Administration Chief Actuary Stephen Goss suggested that benefits could be 9.1% lower for this specific group, for life. ...

Now, amazingly, there is good news for those baby boomers born in 1960. Things didn't turn out as horrible as the original headlines suggested.

The average wage index — which is calculated by Social Security to track wage growth in the overall economy — didn't fall as once projected. Instead, the Social Security Administration recently posted that the national average wage index was up 2.83% in 2020 from 2019 — not down.  ...

Delayed SSI Report

      From a press release:

U.S. Senator Mike Crapo (R-Idaho), Ranking Member of the Senate Finance Committee, and Senator Todd Young (R-Indiana), Ranking Member of the Finance Committee’s Subcommittee on Social Security, Pensions and Family Policy, pressed the Acting Commissioner of the Social Security Administration on when Congress can expect to receive the annual report on the Supplemental Security Income (SSI) program. 

The delay in reporting to Congress on the program relative to the statutory deadline of May 30 is the longest in the history of the report, and comes on the heels of the longest delay ever in the Social Security and Medicare trustees report.  ...

     I can't even imagine a political motivation for delaying this mundane report. Just accept the reality that I have to accept every day. Social Security isn't hitting on all cylinders. Work isn't getting done in a timely manner. This has to do with general understaffing and reduced efficiency because almost everyone is working from home. It sucks but there it is.

Long Covid And Social Security Disability

      From the New York Times:

Since she tested positive for the coronavirus in April 2020, Josie Cabrera Taveras has found herself sleeping for up to 15 hours a day, stopping in grocery store aisles to catch her breath, lapsing in and out of consciousness and unable to return to her job as a nanny.

She believes that she is one of thousands, possibly millions, of Americans who may have a condition known as “long Covid.” The Biden administration has said people with the condition could qualify for federal disability protections and benefits, which can include health care, housing and unemployment benefits.

But like many others who may have long Covid, Ms. Taveras, 31, has had a hard time proving it. ...

With no direct medical evidence of her condition, she has been turned down for disability coverage twice. Even a note from a prestigious post-Covid clinic in the Mount Sinai hospital system, attesting that Ms. Taveras “continues to experience daily symptoms and is currently unable to work,” was not enough. ...

Since December 2020, the Social Security Administration has determined that about 16,000 applicants were able to provide medical evidence supporting Covid-19 as one of their impairments, according to Nicole Tiggemann, a spokeswoman for the agency, which was not flagging Covid cases before that.

But she would not say how many of those 16,000 applicants had been approved for benefits, or how many people claiming long Covid as a condition had been denied. Many cases are probably still pending; wait times for a determination can stretch for five months or more. ...

Steven Trompeter, 49, was unable to perform his job as an industrial mechanic after getting sick with Covid symptoms, including cough, fever, muscle aches and loss of taste and smell, in February 2020. He applied for disability in December 2020 and was approved six months later. ...

     I'm glad Mr. Trompter got approved but surprised that he would have been approved based solely on long Covid. Maybe there are other health problems involved in his case.

     I'm not seeing any groundswell of long Covid cases. So far, I've got one such case and it could easily be described as a post-ICU syndrome case, an entity that was well known before Covid. I'm not hearing about many long Covid cases from other attorneys.

Reason For Concern?

     I had posted yesterday that extending SSI to U.S. territories is part of the budget reconciliation bill pending in the Senate. Apart from the general threat of last minute snags on the bill as a whole, there is some reason for concern about the SSI part. The problem is arcane Congressional rules. Generally, any bill can be filibustered in the Senate. Budget reconciliation bills are a major exception. Those can't be filibustered. However, you can't put just anything in a budget reconciliation bill. One major rule is that no provision can be part of reconciliation if it would increase the deficit more than 10 years out. Generally, drafters of budget reconciliation bills get around this by including sunset provisions for budget reconciliation items that cost money. Extending SSI to the territories definitely costs money. However, the provision extending SSI to the territories contains no sunset provision (page 1682).

     I think this means that any Senator or Representative can object to the SSI provision. However, there may be some budget reconciliation exception that might cover this. I don't know. I'm no expert in Congressional rules. However, I'm not the only one asking the question.

    Would someone object? I'm not so sure. My guess is that this legislative provision is part of a settlement of litigation on the subject. I'd say that it's a reasonable settlement looked at from either a Democratic or Republican stance. I think the government's posture in the case pending at the Supreme Court is weak. Settling the issue in this way allows for a much better implementation of SSI for the territories. Doing it immediately as a result of a Supreme Court opinion would be a real mess.

     If someone objects, what happens then? Do they pull the provision altogether? Add a 10 year sunset? What is the deal, if there is one, with those litigating with the government on this issue. I don't know.

Republicans Want Field Office Reopened

      Sixty-one members of Congress, all or almost all of them Republicans, have written a letter demanding that Social Security field offices be reopened.

Budget Reconcilation Bill Extends SSI To Territories

      I spoke too soon about SSI changes not being in the budget reconciliation bill. The legislative text is now available and it includes one SSI change (page 1682) -- extending SSI to U.S. territories effective January 1, 2024. However, a case pending at the Supreme Court could extend SSI to the territories a lot sooner than that.

     Update to include some speculation: Maybe there won't be an oral argument in U.S. v. Vaello-Madero. Maybe an agreement was quietly made in that case and related cases. If the Biden Administration gets SSI for territories legislatively, the cases get dropped. That allows for an easier implementation -- giving Social Security almost two more years. (And I really think the government is going to lose this case if it is argued.) However, such an agreement would deprive claimants of benefits for that time period. That kind of deal is what I would have urged if I had been in the Solicitor General's office. I guess we'll see soon. The oral argument in U.S. v. Vaello-Madero is scheduled for November 9.

SSI Reform Probably Won't Be In The Budget Reconciliation Bill

      There's a summary out of the current "framework" for the budget reconciliation bill pending in Congress. There had been some hope that this bill would include at least some limited SSI reform but, alas, that's not listed. I guess it's still possible that there will be some really small bore SSI changes in the final bill in the category listed as "Equity and Other Investments" but as much as this has been whittled down, I wouldn't expect it.

Social Security ALJs Want End To Quotas

      From Government Executive:

Officials at the Justice Department last week announced that it would suspend a controversial system for managing immigration judges’ performance based on the number of cases they decide, prompting judges at other agencies to request an end to similar quotas. ...

The decision has raised the hopes of another union of judges that its agency will abandon its own controversial quota system. The Association of Administrative Law Judges said they have been operating under an onerous requirement from the Social Security Administration to schedule at least 50 disability cases per month since 2017.

“We have to submit a calendar that demonstrates that we will hold at least 50 hearings in a month, and if you don’t, you have to make up the difference in other months,” said AALJ President Melissa McIntosh. “The consequences include discipline, and judges who have received proposed removal actions are cited for ‘not managing’ their docket . . . In addition to this scheduling rule, they repeatedly say that you must have between 500 and 700 legally defensible decisions per year.”

McIntosh’s organization is urging acting Social Security Commissioner Kilolo Kijakazi to abandon the performance metrics, arguing that they effectively deprive claimants of their due process rights, particularly as cases have gotten more complex in recent years. ...

Larson Introduces Social Security 2100 Act

Representative Larson

      John Larson, the Chairman of the House Social Security Subcommittee, has introduced the Social Security 2100 Act. The bill would provide:

• Benefit bump for current and new beneficiaries – Provides an increase for all beneficiaries that is the equivalent to about 2% of the average benefit. The US faces a retirement crisis and a modest boost in benefits strengthens the one leg of the retirement system that is universal and the most reliable.
• Protection against inflation – Improves the annual cost-of-living adjustment (COLA) formula to better reflect the costs incurred by seniors through adopting a CPI-E formula. This provision will help seniors who spend a greater portion of their income on health care and other necessities. Improved inflation protection will especially help older retirees and widows who are more likely to rely on Social Security benefits as they age.
• Protects low-income workers – No one who paid into the system over a lifetime should retire into poverty. The new minimum benefit will be set at 25% above the poverty line and would be tied to wage levels to ensure that the minimum benefit does not fall behind.
• Improves benefits for widows and widowers in two income households
• Repeals the Windfall Elimination Provision (WEP) and Government Pension Offset (GPO) that currently penalize many public servants.
• Ends the 5-month waiting period to receive disability benefits.
• Provides caregiver credits to ensure that caregivers are not penalized in retirement for taking time out of the workforce to care for children or other dependents.
• Extends benefits for students through age 22.
• Increases access to benefits for children who live with grandparents or other relatives.
• Have millionaires and billionaires pay the same rate as everyone else – Presently, payroll taxes are not collected on wages over $142,800. This legislation would apply the payroll tax to wages above $400,000. This provision would only affect the top 0.4% of wage earners.
• Extends the depletion date (when a 20% cut to benefits would occur) to 2038 – Giving Congress more time to ensure long term solvency of the Trust Funds.
• Social Security Trust Fund Established – Social Security provides all-in-one retirement, survivor, and disability benefits funded through the dedicated FICA contribution paid by workers. There are technically two trust funds, Old-Age and Survivors (OASI) and Disability Insurance (DI), and that are usually referred to as the Social Security Trust Fund. This provision combines the OASI & DI trust funds into one Social Security Trust Fund, to ensure that all benefits will be paid.

     There is no path to passage of this bill in the current Congress. It's not clear this would pass even in the House of Representatives. Senate Republicans would use the filibuster to prevent debate on the bill. Because of opposition from Senators Manchin and Sinema, Democrats lack a majority to do anything about the filibuster. Anything having to do with Title II of the Social Security Act is off limits under the budget reconciliation process.

     One aspect of the bill not summarized above could have some real world consequences in the near term. Representative Larson's bill would do something about the fee cap that is slowly choking attorneys who represent Social Security claimants. The Acting Commissioner of Social Security can raise the fee cap by a simple notice in the Federal Register. No legislation is needed. I believe this bill is the first time that Larson has come out in support of raising the fee cap. Generally, Social Security Subcommittee Chairs have considerable influence at Social Security. However, Larson has seemed so disengaged from his Subcommittee's responsibilities, I don't know how much influence he has at the agency.

Woman Continues To Accept Husband's Social Security Benefits After Dismembering His Body

      From KLAS:

A woman facing a Social Security fraud charge told investigators she dismembered her deceased husband and threw his remains in the trash, prosecutors wrote in federal court documents obtained by the I-Team. ...

According to court documents, Shedleski deposited her deceased husband’s retirement benefits, which continued for more than four years after his death, into her account. ...

The administration became aware of the deposits in December 2019 after it received an anonymous allegation that Shedleski’s husband had disappeared, documents said. ...

In mid-2019, staff at the Las Vegas Social Security Office attempted to contact Shedleski’s husband, but there was no response. Shedleski later returned repeated messages, saying she and her husband lived together in Las Vegas.

In late-2019, investigators visited Shedleski’s apartment. Her husband was not there, and she reportedly told investigators he was traveling the country. Later in the interview, she told investigators her husband had died in August 2015 in the basement of their previous home in Pennsylvania.

She also told investigators she dismembered his body, packaged up the pieces and threw them into the trash, court documents said ...

COLA Deteminations, Including Max User Fee

      Social Security has posted all of it cost of living adjustments in the Federal Register.

     Among other things, the maximum user fee for attorneys representing claimants goes up to $104 next year. Of course, there is no increase in the maximum fee that attorneys can charge.

     I've noticed over the years that Republicans in Congress seem to think that federal domestic agencies are infinitely wasteful. They believe that operating budgets can be cut and cut without any effect upon the public. There seems to be a parallel attitude by Social Security management. Allowing the fees that attorneys can charge to represent claimants to keep going down by not adjusting for inflation can't possibly have any effect on the public. Attorneys are infinitely inefficient and infinitely wealthy. They can absorb anything.

Congresswoman Has Illusions

      From radio station KMA:

Iowa Congresswoman Cindy Axne says too many people are having issues with the Social Security Administration's hotline services. …

Axne says she's heard from hundreds of Iowans having difficulties with the hotline service.

"I've had Iowans tell me they've been on the phone for four hours," she said. "I had a gentleman tell me that, unfortunately, his wife passed away. He couldn't get the answers that he needed on what his social security would look like after his wife died. He ended up having to put in his income back to 1966 into the system. It took him so long to even figure out what would this look like for him." 

Axne says no additional funding is required for Social Security to provide adequate hotline staffing. 

"It doesn't cost us a dime," said Axne, "because they have a $5 billion annual budget, and 80,000-person staff. So, we just need to make sure they allocate to addressing folks during work hours." …

     Actually, if Social Security had 80,000 employees, it could answer its telephones. Unfortunately, even though its budget is a lot more than $5 billion, it only has about 60,000 employees, almost all of whom are working from home. If you want better telephone service, it’s going to take more employees who cost more money but, first, members of Congress like Ms. Axne need to get past some of their illusions. Bad service at Social Security isn’t the result of laziness or poor management. It’s because of inadequate operating budgets.

14 Months For Threatening Social Security Employee

      From a television station in Denver:

A 56-year-old Denver man, Harold Ortiz, was sentenced to 14 months in federal prison for threatening government workers after his Social Security benefits were terminated. ...

Ortiz, according to his arrest affidavit, phoned the facility about his benefits and first spoke to a claims specialist. That person told Ortiz he was no longer entitled to receive benefits and that the SSA had several notices in the mail announcing the decision.

“I’m going to stand outside your building and blow all of your [expletive] heads off,” Ortiz reportedly yelled at the claims specialist. “You’re dealing with a crazy person!” ...

Criticism For Social Security Form

      The Paperwork Reduction Act allows the public to comment on new or revised forms used by federal agencies. The Consortium for Citizens with Disabilities (CCD), the major umbrella group for non-profits advocating for the disabled, has submitted seven pages of comments to Social Security on a new revision of form SSA-454-BK, which is used when disability benefits recipients are subjected to continuing disability reviews. Here are a few excerpts:

SSA grossly underestimates the burden that responding to SSA-454-BK places on claimants and the public when it suggests the average burden is 60 minutes. [These estimates are required by the Paperwork Reduction Act.] Anecdotally, we believe that if you consider the complete time burden spent by the claimant and third parties to review SSA-454-BK, collect documentation, complete and transmit this form, it would take an average of 15-20 hours. This would include:

• times spent by the claimant receiving and reviewing the letter;
• time spent by assisters (neighbors, family, community assisters and sometimes SSA claims representatives) helping the claimant understand the SSA-454-BK form, and the steps required to respond (particularly in cases where SSA knows the claimant has intellectual, cognitive, behavioral or language deficits);
• time spent to collect information or documentation needed to complete the form;
• time spent by medical, behavioral health, and other providers furnishing documentation and or fielding specific questions necessary to complete the form;
• time spent securing assistance from advocates or lawyers;
• time spent to actually complete form;
• and the time required to transmit the SSA-454-BK to SSA. ...

Just completing the SSA-454-BK form is burdensome in and of itself. It is 15 pages long and requires multiple stamps to be mailed back to SSA. It requires beneficiaries to write short essays in response to questions, report all the medication they take and all of the medical treatment and providers they attend, and all of their daily activities. For adults and children with disabilities, this is usually a huge amount of information. ...

We recommend SSA take steps to reduce the burden on claimants by truncating and streamlining the SSA-454-BK. Specific consideration should be paid to the utility to each piece of information solicited as well as the burden it places on the claimant. Although detailed medical information is no doubt useful to evaluating ongoing disability claims, some of this information is not absolutely necessary to adjudicating the claim but may place a large burden on the responder. ...

     On the whole, I find Social Security's forms to be terribly drafted. They are usually poorly organized, too long, confusing and ask for more information than is needed. They seem to be created with little input from the Social Security employees who have to read the forms and with zero regard for the public which has to struggle with the forms. I am glad that CCD is giving some much-needed attention to this dark corner at Social Security.

OIG Report On VR

      From a recent report by Social Security's Office of Inspector General (footnote omitted0:

Our objective was to determine whether beneficiaries1 who received Vocational Rehabilitation (VR) services attribute those services to their work-related outcomes. ...

The Social Security Act authorizes SSA to pay State VR agencies for the services they provide beneficiaries who meet certain conditions. ... SSA does not manage State VR agencies. ...

More beneficiaries in our population had unsuccessful work outcomes after they received VR services than those who had successful outcomes – 62 percent did not have successful work outcomes while 38 percent did. Per our survey, the beneficiaries with unsuccessful work outcomes did not find VR services as helpful as those with successful work outcomes. While SSA reimburses VR agencies for services provided, SSA does not have authority over the quality of those services. Accordingly, while our survey indicates VR agencies could better serve some beneficiaries, SSA has limited ability to effect change in the quality of VR services its beneficiaries receive. ...

Of the 122 beneficiaries with successful outcomes who responded to whether they would have been able to return to work without the VR services they received, 79 (65 percent) replied no. Of the 123 beneficiaries who responded to whether they would have been able to work for as long as they had without VR services, 85 (69 percent) replied no. ...

     Note the implicit assumption that VR would do a better job if only it were managed by Social Security. LOL. 

     The entire thrust of the report seems to be that a 38% success rate is poor. Actually, that rate seems pretty good to me. Of course, VR turns away a lot of people. They only work with those who seem to have potential. You can call it cherry picking if you wish but I'd say they're just realistic. OIG seems to assume that there's some way of rehabilitating most Social Security disability recipients which is wrong. The people drawing those benefits have very serious health problems. Few of them get better. In fact, the majority keep getting worse over time.

OHO Stats

      The report shown below was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It contains basic operating statistics for Social Security's Office of Hearings Operations (OHO). 

Click on image to view full size

Draft Senate Appropriations Bill

Senator Leahy

      Patrick Leahy, the Chairman of the Senate Appropriations Committee, has released a draft Fiscal Year (FY) 2022 appropriations bill (see page 293) covering Social Security. The top line number in his version is virtually the same as the bill that has already passed the House of Representatives, a $1 billion increase for Social Security over FY 2021.

     As is normally the case, the draft report on the bill, an explanation of the bill which isn't officially enacted, contains recommendations for the Social Security Administration. These aren't binding but agencies take them seriously. Here's what's in the draft Senate bill for Social Security:

Delayed Disability Payments.—The delayed payment of Social Security Disability Insurance claims can create a significant burden on claimants. The Committee requests a briefing within 90 days of enactment on the issues that can result in delayed payments, and the polices SSA has implemented, or has considered, to streamline the disability payments’ process. 

Disability Hearing and Initial Claims Backlogs.—The Committee commends SSA for the progress it has made reducing the average disability hearing processing time and the disability hearing backlog. The Committee recommendation combined with investments in recent years will help SSA stay on schedule to eliminate the backlog in fiscal year 2022 and further reduce the average disability hearing processing time. At the same time COVID–19 has created significant challenges for SSA, and has contributed to a growing backlog of initial disability claims. The Committee recommendation will support additional hires for Disability Determination Services to help address the growing backlog and an estimated increase in initial claims. The Committee requests a briefing within 60 days of enactment, and quarterly thereafter, on its progress towards reducing initial disability claim and hearings processing times and backlogs. 

Field Offices Closures.—The Committee remains concerned about decisions to permanently close field offices and the impact on the public. The Committee encourages SSA to find an appropriate balance between in-person field office services and online services for beneficiaries. While the SSA’s Inspector General reviews decisions to close field offices, the Committee directs SSA to take every action possible to maintain operations at the offices under review. 

Occupational Information System [OIS].—The Committee is aware that SSA continues to operationalize OIS using BLS ORA data, O*NET, and other DOL-derived occupational statistics. The Committee commends SSA’s progress in implementing OIS, and directs SSA to provide an update in writing to the Committees on Appropriations and Finance within 60 days of enactment detailing the status of implementation, to what extent OIS is fully operational, a timeline for moving from the Dictionary of Occupational Titles entirely to OIS, and an action plan to accomplish said timeline.

     This is almost completely different from the House version which discusses the regulations allowing Administrative Appeals Judges to hold hearings, judicial independence of ALJs, backlogged claims processing, the attorney fee cap, telework and telephone hearings. The differences between the two draft reports will be sorted out in the legislative process so there will be one final report on the bill.

     The current continuing resolution that keeps Social Security and other agencies running ends in early December. I don't think that appropriations have been as contentious this year as most. I hope we can get something passed by that early December deadline.

CCD On SSI Reform

      The Consortium for Citizens with Disabilities (CCD), the major umbrella group of non-profits concerned with the rights of the disabled, has posted a letter it has sent to Congressional leaders concerning changes in SSI which it desires in the budget reconciliation bill currently being negotiated. The letter may give us an idea of what is in play. It doesn't promote the idea of a major boost in SSI but it does say that:

Some of the President’s commitments are very affordable: increasing the income disregards is only $60 billion over ten years, eliminating the rules prohibiting help from family and friends is only $31 billion, and updating the resource limits is only $8 billion. Other smaller changes we have long supported have negligible costs of under $500 million over ten years (including expanding SSI to the territories, excluding retirement accounts from resources, eliminating dedicated accounts, and other technical changes from the SSI Restoration Act).

Social Security And Household Wealth

      A tweet from the Center for Retirement Research at Boston College:

Today is #EndPovertyDay. Without #SocialSecurity, a typical white household has 5 to 7 times the wealth of a minority household, but adding in Social Security reduces the gap to 2 to 3. Learn more: bit.ly/36aJ6EV #EndPoverty #PovertyEradication #RDRCResearch

Oral Argument At SCOTUS On Social Security Case

      From SCOTUSblog:

Wednesday’s argument in Babcock v Kijakazi displayed a bench still uncertain about how to resolve a problem about the Social Security benefits available to a small group of National Guard workers.

The case involves a special rule that protects certain members of the “uniformed services” from a rule that limits Social Security benefits for people with irregular work histories over the course of their lifetime. … The case involves a group of about 50,000 people still living who worked before 1984 as a “dual-status military technician.” Although paid as civilians, those technicians provide a variety of services involving the National Guard and are obligated to maintain membership with an appropriate rank in the National Guard and to wear the corresponding uniform while on duty. At bottom, the question is whether the pay they receive for that work is “wholly” based on service “as” a member of a uniformed service, even though much of it is civilian rather than military work.

None of the justices seemed to approach the case with certainty. Two main threads of analysis dominated the argument. For Chief Justice John Roberts, it seemed obvious that some of the pay was for the serviceman’s work “as” a member of the National Guard, but much of it was for the various civilian duties of his technician status. …

Justice Elena Kagan – the only justice who seemed to state a settled view during the argument – seconded Roberts’ perspective, commenting “that we can sort of make this simpler” by following his lead, “and this is the way I read the language too.”

Conversely, Justice Neil Gorsuch found most relevant the statutory requirement that dual technicians must be members of the National Guard. In a colloquy with Nicole Reaves (appearing on behalf of the government), Gorsuch commented that “the work may be civilian for a bunch of other purposes, but it can only be performed by someone who is serving in the capacity of a National Guardsman.” …