Empire Justice Center Newsletter

The Empire Justice Center has issued its November 2006 edition of Disability Law News, its newsletter mostly dealing with Social Security disability issues.

Determining Disability Is Tough

Determining whether a person is disabled is tough, whether it is Social Security or workers compensation doing the disability determination, as this item from the Insurance Journal shows:

People who receive higher disability ratings for work-related back injuries don't necessarily fare worse over the long term than those who get lower ratings, a Saint Louis University study finds...

"A disability rating is supposed to reflect the amount of impairment a person has at the time that a case is closed. The presumption is that levels of impairment are stable and related to day-to-day levels of function. I was shocked that the associations between disability rating and subsequent levels of function weren't stronger," said Raymond Tait, Ph.D., professor of psychiatry at Saint Louis University School of Medicine.

Disability ratings also differed between African-Americans and Caucasians. According to Tait, those differences probably reflected differences in treatment: whites were four times more likely to have surgery than blacks. Those who had surgery received larger settlements for their injuries, Tait said.

"While surgery inflated disability ratings, there appeared not relationship between surgery outcomes and how a person did thereafter," he said.

Tait and colleague John Chibnall, Ph.D., also a professor of psychiatry at Saint Lois University, looked at about 1,500 Missouri workers – 580 African-Americans and 892 Caucasians – whose Workers' Compensation claims for lower back pain were settled between Jan. 1, 2001 and June 1, 2002.

Researchers interviewed the employees 21 months after their settlements about how they were doing. They asked questions about pain intensity, general physical and mental health and whether they currently were working.

Tait and Chibnall said that their findings "raise questions about both the validity and the fairness of the current disability determination program. Disability settlements are designed to give people money toward a fresh start. Those settlements do not appear to reflect the residual levels of disability that people actually experience."

SSA Definitely Closing On January 2

President Bush's order shutting federal offices for former President Ford's funeral allowed agency heads to make the decision on which offices should stay open for "essential public business." There was little chance that Commissioner Barnhart would use this to keep Social Security offices open, since they were closed for the funerals of former presidents Nixon and Reagan. The word has now come down that Social Security offices will be closed on January 2.

Jo Anne Barnhart's Father Dies

The father of Jo Anne Barnhart, Commissioner of Social Security, passed away on Christmas day, according to TCPalm, a website associated with several Florida newspapers.

Bush Orders Federal Offices Closed On Tuesday

From the Office of Personnel Management

President George W. Bush To Close Federal Offices in Tribute to Former President Gerald R. Ford

Washington, D.C. -- By Executive Order of President George W. Bush, all executive departments, independent organizations and other agencies of the Federal government shall be closed on Tuesday, January 2, 2007, as a mark of respect for Gerald R. Ford, the 38^th President of the United States.

U.S. Office of Personnel Management (OPM) Director Linda M. Springer notified Cabinet Secretaries, Agency Heads and Chief Human Capital Officers governmentwide about the closure shortly after President Bush signed the Executive Order on December 28, 2006. Springer provided agency leaders with a copy of the President's proclamation, which designates Tuesday, January 2, 2007, as a National Day of Mourning.

The closure order includes Federal offices, with the exception of those offices and installations, or parts thereof, in the Department of State, the Department of Defense, the Department of Justice, the Department of Homeland Security, or other departments, independent organizations, and governmental agencies whose agency head determines should remain open for reasons of national security or defense, or other essential public business.

Former President Ford's Funeral Scheduled

The Associated Press reports that the state funeral for former President Gerald Ford has been scheduled for Tuesday, January 2, 2007. President Bush has not yet announced that federal offices will be closed that day, but it would be a major surprise if he does not do so.

Social Security Probably Closed On January 2

The early report from USA Today is that the state funeral for former President Gerald Ford is likely to be on Tuesday, January 2, which means that federal offices, including Social Security, will likely be closed that day.

GAO Report On Implementation Of Medicare Part B Income-Based Premiums

The Government Accountability Office (GAO) has issued a report on Social Security's implementation of income-based Medicare Part B premiums. This is a big workload that Social Security does not need at a time when it is already struggling to cope with severely limited funding. Below is the cover letter to the Senate Finance Committee Chairman and Ranking Minority Member summarizing the report.

November 17, 2006

The Honorable Charles E. Grassley Chairman
The Honorable Max Baucus Ranking Minority Member
Committee on Finance United States Senate

Subject: Social Security Administration: Short Time Frame and Workload Challenges Could Affect Timely Implementation of Income-Based Medicare Part B Premiums

Beginning January 1, 2007, the premiums for the Medicare Part B Supplementary Medical Insurance program will be based on income, which will raise the premiums for approximately 1.65 million higher-income beneficiaries to as much as 80 percent of the full cost over the 3-year phase-in period. This change, which may be unknown to some beneficiaries, will affect single individuals with incomes over $80,000 and married couples who file jointly with incomes over $160,000. Medicare Part B is a voluntary program administered by the Centers for Medicare & Medicaid Services (CMS) that covers doctors’ services, certain outpatient services, and other care. Currently, Medicare Part B beneficiaries generally pay a flat premium of 25 percent (the standard monthly premium) of the cost of the program, with the remaining 75 percent subsidized by the federal government. While CMS administers the program, the Social Security Administration (SSA) is responsible for determining and assessing Medicare Part B income-based premiums once CMS has set the standard premium amount for the year. To better understand how SSA is implementing such premiums, the Senate Committee on Finance requested that we review the process that SSA has established to determine and assess the new premiums.

Enclosed (Enclosure I) is an updated version of the briefing that we provided to your staff on November 7, 2006 describing the status of SSA’s implementation efforts as of November 6, 2006. At this writing, SSA is still in the process of calculating premiums and expects to finish this task by mid-November. Once the calculations are completed, SSA will include the new premium in its cost of living adjustment notices, which will be mailed to affected beneficiaries in late November. Beneficiaries will have 60 days after receiving the notice of the premium increase to file an appeal. However, they may also request a new determination without filing an appeal if they have experienced a life changing event that results in a significant reduction in their income, or they have more recent, amended or corrected tax return information. Time frames for requesting new determinations vary depending on the reason that beneficiaries cite for making such a request. SSA is conducting a number of training efforts to assist staff in dealing with inquiries from affected beneficiaries. For field offices with a high volume of affected beneficiaries, SSA plans to move the resulting work as needed to offices with fewer affected beneficiaries. Despite SSA’s planning efforts, there are various issues that could affect its implementation of income-based premiums. For example, SSA has about a month to determine and assess the premiums, and faces an anticipated field office workload increase when beneficiaries contact them for help in understanding the higher premiums or challenging the premium assessment.

To address the Committee’s request, we reviewed relevant statutes and program regulations on income-based premiums, interviewed officials at SSA, the Internal Revenue Service (IRS), and CMS, and obtained supporting documentation on their plans for implementing the income-based premiums. We evaluated these plans based on the time frame established in the law for SSA’s receipt of income-based data from the IRS and SSA’s schedule to implement the income-based premiums by the effective date. We also interviewed managers and staff at various SSA field offices and spoke with Medicare advocacy groups. We did not assess the procedures used to test IRS and SSA systems for implementing the income-based premiums. We performed our work between May 2006 and November 2006 in accordance with generally accepted government auditing standards.

We provided a draft of the briefing to the Commissioner of the Social Security Administration on November 9, 2006. In response to our statement that beneficiaries might not be aware of the income-based premiums, SSA noted that this information was provided in the 2007 “Medicare and You” handbook, which was sent to all Medicare beneficiaries by the end of October 2006. SSA also noted that the current hiring freeze, which could affect SSA’s ability to respond to income-based premium inquiries, was a result of the continuing resolution under which SSA is currently operating. We considered these comments, as well as SSA’s technical comments, and made changes as appropriate. We have included the agency’s comments in Enclosure II. We are sending copies of this briefing to the Commissioner of Social Security, the Commissioner of Internal Revenue, and the Secretary of Health and Human Services, and other interested parties. Copies will also be made available to others upon request. In addition, the report will be available at no charge on GAO’s Web site at http://www.gao.gov. Please contact us at the number shown below if you or your staff have any questions about this report. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this briefing.

Sincerely yours,

Barbara D. Bovbjerg Director, Education, Workforce, and Income Security Issues