Reopening Plans -- And Why Reopening Matters

      From Reuters:

The Social Security Administration has announced plans to begin reopening its vast national network of field offices to the public in January following a 20-month COVID-19 shutdown. The reopening will give the agency a needed opportunity to improve public service, but also presents some thorny challenges. ...

Processing of Social Security retirement benefits and Medicare claims has not been impaired during the office shutdown, agency records show. But there was a sharp drop in 2020 in benefit awards for SSI (down 18%) and disability insurance (down 10%).

“The most serious problems are related to the drop in awards for the most vulnerable people,” said David Weaver, a former associate commissioner in Social Security’s Office of Research, Demonstration and Employment Support. “It’s people who might have less ability to get information off the internet, or easy access to information on how to contact the agency. And people seeking SSI and disability may have serious mental impairments or be homeless.”

Had benefit awards continued at pre-pandemic levels for SSI and SSDI, 5.5 million more people would be receiving benefits for these two programs, according to Weaver’s calculation. (https://bit.ly/3CcX49v) ...

“We are concerned that the plan is vague and full of gaps,” said Rich Couture, president of the AFGE council representing hearings and appeals office personnel and spokesman for a committee made up of six AFGE bargaining councils. “It doesn’t specify what the plan will be for occupancy rates, or how we’ll make sure that waiting rooms don’t get overwhelmed.” ...

Social Security notes that it is following the Centers for Disease Control and Prevention and government-wide guidelines for occupancy and physical distancing. “Our offices will use signage, seating arrangements, floor markings and Plexiglass barriers to assist with distancing and occupancy requirements,” Hinkle said. The agency also is monitoring the Nov. 22 deadline for all federal workers to be vaccinated, and is collecting vaccination information from workers. ...

Incorrect Chld Care Credit Payments Made To Attorneys

     My firm has received a child care credit payment on one of our former clients. I've asked around and three other attorneys I know have also received these payments by mistake. Who knows how many more there may be? The payments came from the IRS.

     We don't know exactly what to do other than to put the money in escrow for now.  We'd like to just pay the money to our former clients, the ones who probably should have received the money, but that may not be safe. Our experience with Social Security is that if they pay us money that should have gone to the client, they eventually bill us for the overpayment and they don't care in the least that the money has been paid over to the client. The opening letter from Social Security in these cases -- I repeat, their opening letter -- demands that we repay the money immediately accompanied by the threat to take away our right to represent claimants. I've received even more belligerent letters after reminding them that I repaid their money long before they ever billed me. Given this experience, we don't want to pay the money over to the clients but if we just send a check to the IRS, will they know how to credit it? Will the incorrect payments keep coming month after month?

     I have no idea how extensive this problem is or whether the mistake is at Social Security or the IRS but there is some degree of problem here. The IRS and Social Security need to get together and figure this out.

A Mobile Accessible Platform To Handle All Of Social Security's Transactions?

      From Federal News Network:

The Biden administration is working on an executive order focused on improving customer experience within government and building on its ongoing work to improve the equity of public-facing services. ...

The draft executive order directs agencies to link customer experience metrics to their strategic plans and priority goals. It also ties that progress into performance review requirements for members of the Senior Executive Service and senior management. ...

Individual agency actions under consideration include the State Department providing a new online passport renewal experience, the Social Security Administration creating a mobile-accessible online platform that can handle all transactions and the Transportation Security Administration implementing new tools at airport security checkpoints to reduce passenger wait times. ...

    People who think that a single mobile accessible platform will handle all of Social Security's transactions with the public greatly underestimate the complexity of the work that the Social Security Administration does. That's one of Social Security's biggest problems -- the public perception that what the agency does is simple -- just processing people onto retirement benefits. Most of what the agency does is far more complicated than that. Many of the agency's forms should be simplified but they would still be far too long to be completed on a cell phone.

Field Office Closures Have Had A Devastating Effect

     From Jonathan Stein and David Weaver writing in The Hill:

The Social Security Administration's (SSA’s) 1,200 field offices have been closed for the last 20 months, with devastating effects for disabled Americans. Pre-pandemic, more than 43 million Americans were served at SSA field offices; the people most in need of walk-in, on-demand services included people with low- or zero-incomes, housing instability, limited English proficiency, or significant physical or mental disabilities that were themselves barriers to access. With office closures, their inability to file applications and appeals and to correct bureaucratic errors has led to historically unprecedented declines in people receiving Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) disability benefits.

In fiscal year (FY) 2021, SSA's awards of SSDI benefits to disabled persons and their family members were down 25 percent relative to FY 2019. SSI disability awards, granted to people without much work history, were down even more, with a 30 percent decline.

Had SSI awards continued at the pre-pandemic level, there would have been 280,000 more SSI awards over the last two fiscal years. In the pre-pandemic years of FY 2017-2019, SSDI awards were declining only modestly; had that trend continued, there would have been 270,000 more SSDI awards in the last two fiscal years. ...

The decline in awards has continued to the present period. SSDI and SSI awards for September 2021 were down 34 and 42 percent, respectively, from the figures for September 2019. ...

It is crucial that office reopening allow for walk-in service. Many current or potential SSI beneficiaries lack reliable access to internet or have limited minutes available for their phones. ...

Last, but certainly not least: It is 11 months into the current administration, and there has yet to be a nomination of a Social Security Commissioner. Many of the needed changes in policy and personnel at SSA can only be made by a Senate-confirmed commissioner, and time is running out to act before the next election. ...

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

The Rich Get Richer

      From the Michigan Retirement and Disability Research Center:

Disparities in Social Security claim ages have risen since the early 1990s. With high earners increasingly likely to delay claiming, and also living longer on average than lower earners, late claimants may differ in critical ways from early claimants. Using Social Security Administration data and focusing on men, we find that late claimants have lower mortality than those who claim at age 62, so late claimants are adversely selected. As a result of selective claiming combined with improvements in actuarial adjustments, the return to delaying claiming has become systematically positive for those who actually delay, but not for those who claim early. We further find that selective claiming increases benefits by more for those with higher lifetime earnings because their return to delay exceeds actuarially fair amounts by larger margins. Lastly, we find that selective claiming has a modest effect on total payouts, but a more consequential effect on inequality in lifetime benefit payouts. In the aggregate, the increase in Trust Fund payouts as a result of adverse selection in claiming was 0.5% for the most recent retiring cohorts. Yet, lifetime benefit payouts are 1.9% higher for those in the highest quartile of lifetime earnings as a result of claim-age differences, compared to what payouts would be if they had the same claim ages as those in the lowest quartile, and this contributes 2.8% to the difference in expected lifetime benefits between the highest and lowest quartiles.

The Public Wonders Why The Field Offices Are Still Closed

      Clevelanders question why Social Security field office is still closed.

Little Screening For Medical Consultants

      From Actions Needed by SSA to Ensure Disability Medical Consultants Are Properly Screened and Trained, a report by the Government Accountability Office:

SSA cannot be sure that the state agencies’ consultants are qualified and trained to appropriately inform decisions on disability claims. SSA policy requires state agencies to screen their consultants by checking them against a database of individuals barred from participating in federal programs. Also, SSA policy sets requirements for state agencies to provide initial and follow-up training. However, state agencies told us they do not always do so.  

Of the 52 agencies:
• 14 said they did not consistently perform required checks on consultants either when hiring or annually, and

• Nine said they did not give consultants some element of required initial or refresher training.

     The only requirement is that they not have a history of involvement in defrauding the federal government and they don't always enforce even that minimal standard? Is that how you run a quality program? Are opinions from such consultants entitled to deference?

Veterans Day 2021

 

Yesterday's Supreme Court Argument

     After yesterday's oral argument before the Supreme Court I had expressed optimism that the Court would find it unconstitutional to deny SSI benefits to U.S. citizens who live in Puerto Rico. Others, including a writer for the highly-regarded SCOTUSblog, felt otherwise.

     Let me explain. There were a number of questions asked by the justices about whether finding this exclusion unconstitutional would trigger litigation claiming denial of equal protection because certain laws favor one state or one region over another. Although the attorney representing Mr. Vaello-Madero could have done a better job of expressing it, the answer seemed simple to me. This sort of lawsuit can already be brought but seldom is because all that is required to withstand an equal protection challenge is a "rational basis" for a law. That's a minimal requirement that would normally be met. It's just that in this case, the exclusion of SSI is so obnoxious that it cannot even meet a minimal requirement.  If a statute is found that is as obnoxious as this one, then by all means the Court should find it unconstitutional but such a statute should be almost nonexistent. The states have representation in Congress. Puerto Rico doesn't. My interpretation of the questioning was that the Justices want to make sure they write a narrow decision finding it unconstitutional to deny SSI in Puerto Rico and were inquiring about how they should do it. Another interpretation would be that the justices were expressing reasons why it would be too dangerous to give relief to Mr. Vaello-Madero.

     Anyway, listen to the oral argument yourself and tell us what you think.

Who Uses Online Filing And Who Doesn't

      The Center for Retirement Research at Boston College has issued a report titled How to Increase Usage of SSA's Online Tools. I don't know that the report presents any new ideas but it does include this interesting chart which shows what groups are and aren't filing online:

Click on image to view full size

Where Did This Come From?

     From KTLA:

Mamie Walker is sick and tired of the government abruptly cutting off her social security benefits, leaving her unable to pay her rent and buy food. She said it’s all because of a mistake no one can explain, KTLA sister station WFLA reported.

Walker hasn’t received benefits for the past two months. She received a letter from the U.S. Social Security Administration saying she owes over $237,000 in “overpayments” and won’t receive benefits again until September, 2034. She would be 100 years old. ...

This is the second time Walker asked for help after her social security benefits were cut. In 2019, the government claimed Walker owed over $200,000 in old student loan debt. Walker, who never went to college, had no idea what that was about. ...

A Social Security Administration representative said this would be investigated again and they’ll try to assist Walker in getting her benefits back.

Oral Arguments In Vaello-Madero

      I listened to the oral argument is U.S. v. Vaello-Madero. You can't always tell from oral arguments and maybe I heard what I wanted to hear but my impression was that the only issue was how broad the opinion will be -- that all or virtually all of the justices are ready to hold it unconstitutional to deny SSI to U.S. citizens who reside in Puerto Rico and other territories. 

     If you also listened to the oral arguments, what was your take?

     Update: The Supreme Court reporter at the Washington Post thinks the Supreme Court is reluctant to extend SSI to Puerto Rico.  However, court reporters at The Hill seem uncertain about how the Court will come down.

Reopening Plan

      Vague though it may be, Social Security has released its reopening plan. It certainly allows many employees to continue working from home every day. No one has to come into the office daily.

     I don't know how this is going to work. I'm pretty sure that there will be be far, far too much demand for in-person service at the field offices to allow field office employees to work from home three days a week. How do ALJs conduct all the hearings they are supposed to conduct coming into the office one day a week? Things I've read suggest that many ALJs think that most claimants will continue to accept telephone and video hearings in the future. That's incredibly naive. I don't care how wonderful you think telephone or video hearings are. I know better. My opinion and that of my clients matter. The self-serving opinions of public servants don't matter in this instance. Cramming video hearings down the throats of unwilling claimants won't be politically feasible after the pandemic is over. We're getting back to something like normal or there's going to be hell to pay.

Great Summary Of Upcoming SCOTUS Case On SSI For Puerto Rico

      Ian Millhiser has written an excellent summary for Vox of the legal issues presented by U.S. v. Vaello-Madero, which is to be heard by the Supreme Court tomorrow. Vaello-Madero presents the issue of whether it is constitutional to deny SSI benefits to U.S. citizens who reside in Puerto Rico and other U.S. territories. 

     The old precedents supporting the denial of SSI to Puerto Ricans, the so-called Insular Cases are so disreputable that they cannot be used to turn down Mr. Vaello-Madero. The Court could come up with new reasoning to justify turning down Mr. Vaello-Madero but would it? There probably won't be some liberal-conservative split on this case. Every amicus brief filed supported Mr. Vaello-Madero.

SSI Report

      Social Security has finally posted the SSI Annual Report. Some Republican Senators tried to make an issue over the report being filed late.

Redesigned Statements Get Positive Reviews

      Social Security has redesigned the statement that potential beneficiaries can access online to tell them about their future benefits. The redesign is getting positive reviews. They used to send something like this out in the mail whether you asked for it or not. My experience was that no one paid attention to the statements that used to be mailed even if they were about to file a claim for benefits. It may be a better design now but will that make a difference, especially when far fewer people are seeing it?

A Blast E-Mail To Social Security Operations Employees

From Deputy Comm  Grace Kim. 

Subject: Operations Re-entry Plan

Earlier today, Acting Commissioner Kijakazi issued a broadcast message to provide preliminary information about SSA’s re-entry plan.  I am building on that message to share how Operations fits into that plan.  I want to emphasize that your safety and the safety of the public we serve continues to be a priority not only in our current operating posture, but also in how we will re-enter our offices. We will continue to monitor and follow the government-wide, science-driven advice of the Centers for Disease Control and Prevention.

I know most of you are curious about Operations’ future telework plan.  The global pandemic has changed our operating environment, how and where we work, and highlighted those areas where we are not meeting our public’s needs.  Over the course of the past 19 months, we have learned that we can effectively accomplish some work while teleworking, but our public service responsibilities mean that we still need to do some work onsite.

In Operations, I am planning for greater flexibility for telework for employees.  We will use the lessons learned throughout the pandemic to inform how we implement a telework plan that allows employees to work from home and ensures that we effectively serve the public and carry out our mission.  We will work closely with AFGE to ensure we meet all labor obligations.  I am excited to share that I have proposed a telework program that will allow most Operations employees the opportunity to telework between 2-5 days a week depending on your job duties. Soon, your supervisor will share the telework availability for your position and give you 30 days’ notice before we transition to our new telework plan, which at earliest will begin in January.  Until then, we will continue to operate as we have been under our current Workplace Safety Plan.

After we have completed re-entry and implemented our telework plans, we will evaluate how we are doing.  This evaluation will inform our longer-term plans as we enter Fiscal Year 2023.

I want to thank you for your hard work and commitment to serving the public during this unprecedented time.  I appreciate your patience as we consider how to safely re-enter the workplace. I will keep you updated on the re-entry process.

Grace

Class Actions On Same Sex Marriages Settled

      From NBC News:

Social Security survivors benefits will now be available to same-sex spouses and partners who had been denied access due to previous bans on gay marriage.

The Department of Justice and the Social Security Administration on Monday announced that they dismissed appeals filed by the then-Trump administration in two class-action lawsuits related to Social Security survivors benefits for same-sex partners and spouses.

In 2018, Lambda Legal, an LGBTQ rights nonprofit group, filed two class-action lawsuits against the Social Security Administration: one on behalf of surviving same-sex partners who had been prevented from legally marrying their loved ones by bans on same-sex marriage, and another on behalf of those who were able to marry, but were prevented from being married for at least nine months — the minimum set by the Social Security Administration — due to bans on same-sex marriage. …

SSA To Be Responsible For Paid Leave Under BBB Bill

      The current version of the Build Back Better Act, the major budget reconciliation bill pending in the Senate, contains a major responsibility for the Social Security Administration. If passed , Social Security will be administering Universal Comprehensive Paid Leave. (Begins on page 1065). Claimants will be able to appeal from determinations made under this program but not to federal court. (Page 1081). I am somewhat confused about extra funding. At one point the bill indicates that Social Security will be given an extra $1.591 billion in the first year and an extra $1.5 bill a year thereafter to administer the program. (Page 1090). At another point, it indicates that there will be as much as an extra $2.5 billion. (page 1091). It's not clear to me whether as much as $2 billion of this may be expended for Social Security operations generally. It appears that this will be effective sometime in the current fiscal year -- at least that's when Social Security gets a big appropriation -- but I have been unable to find the exact date.

     This will be the first major new responsibility for the Social Security Administration since SSI was adopted in the 1970s. It comes at a time when the agency's staffing is at a low ebb and there are massive backlogs across almost all agency operations. Also, the agency is being directed by an Acting Commissioner.