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Proposed New Regulation

From today's Federal Register:

We propose to revise our regulations to codify two provisions of the Balanced Budget Act of 1997 that affect the payment of benefits under title XVI of the Social Security Act (the Act). One of the provisions extended temporary institutionalization benefits to children receiving SSI benefits who enter private medical treatment facilities and who otherwise would be ineligible for temporary institutionalization benefits because of private insurance coverage. The other provision replaced obsolete terminology in the Act that referred to particular kinds of medical facilities and substituted a broader, more descriptive term.

Results Of Last Week's Unscientific Poll

How do you rate the chances of former Commissioner Barnhart's Disability Service Improvement plan being implemented nationally?

Almost certain (2)	2%
More likely than not (4)	4%
Some chance (21)	19%
Little chance (39)	36%
No chance (42)	39%

Total Votes: 108

An Image From The 1980s

Odd And Surprising Decision From the Sixth Circuit

Thanks to Eric Schnaufer for posting links to federal appellate decisions in Social Security cases. Here are some excerpts from Cook v. Commissioner of Social Security, issued on March 21, which I would characterize as an odd and surprising decision that suggests that some federal judges look for ways to dispose of Social Security cases without hearing them:

Cook appealed to the SSA’s Appeals Council, which issued a notice of denial of review dated July 27, 2005. This notice was sent to Cook by regular mail in an envelope bearing a postmark of July 28, 2005 ... On Monday, October 3, 2005, Cook filed a complaint in federal district court, appealing the Appeals Council’s denial of review. ...

Under the Federal Rules of Appellate Procedure, Cook had 60 days from the Appeals Council’s notice of denial in which to file his appeal. Fed. R. App. P. 4(a)(1)(B) (“When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.”). But he also had a five-day “grace period” before the 60 days began to run, which reflects the SSA’s rebuttable presumption that he received his notice of denial within five days of the date of the notice. 20 C.F.R. § 422.210(c). Rule 26(a)(3) of the Federal Rules of Appellate Procedure provides that when the final day of an appeals period falls on a Saturday or a Sunday, then those days are excluded in computing the time period. Fed. R. App. P. 26(a)(3). If the appeals period ended on a weekend day, the appellant accordingly would have until the following Monday in which to timely file. ...

But Cook urges us to calculate the five-day period from the date of mailing, represented by the postmark date, rather than from the date on the notice itself. Unlike the facts in McKentry, however, Cook does not deny that he received the Appeals Council’s notice. He instead argues that the district court miscalculated the applicable review period because the notice was not actually postmarked until July 28, 2005, even though the first page of the notice bears a date of July 27, 2005. ...

Contrary to Cook’s argument, this court has consistently calculated the filing period from the date on the notice itself. See, e.g., McKentry, 655 F.2d at 724; Harris, No. 01-3522, 25 F. App’x at 273-74. This is in keeping with the applicable regulations. Cook has presented no persuasive argument for deviating from this interpretation. His complaint filed on Monday, October 3, 2005, was thus one day late.

A Ray Of Budget Light

A recent e-mail to all Social Security employees from the Commissioner of Social Security:

A Message To All Social Security And DDS Employees

Subject: Budget News

As I told you last month, Congress approved and the President signed legislation allocating an additional $200 million for Social Security. That number brought us about half of the way back to the President's recommended budget level for this fiscal year.

This week I had the pleasure of releasing additional resources to different parts of the agency so that we can prepare to do some hiring that will deal with staffing imbalances and loosen restrictions on overtime. As you know, these limits have made it difficult to live up to our own standards. Please join me in congratulating Dale Sopper, Bob Wilson and their staffs for their fine work in making our case to Congress. It is a real credit to SSA that we received such strong support from our Congressional committees of jurisdiction, the Appropriations committees and from outside organizations concerned about the impact of five years of budget reductions on our ability to deliver service.

While I was responsive to most of the requests from senior managers, we are still faced with an overall budget environment that limits our ability to increase the size of our staff and sustain it into the next year. Fortunately, at this stage of the Congressional budget process, the budget levels targeted by the House and Senate for fiscal year 2008 would not require us to consider furloughs or other drastic measures in the coming year. This is incredibly good news but I must caution that Congress is faced with scores of competing priorities, so it is important that we remain vigilant until there is a final vote later this year.

Senior managers will be providing you soon with additional information about what this week's budget decisions will mean for your specific organization.

Michael J. Astrue
Commissioner

United Spinal Association Calls For More SSA Funding

From a press release from the United Spinal Association, which suggests that Social Security's fiscal year 2008 budget is under active review in Congress:

The delays facing applicants for disability benefits at the Social Security Administration are unconscionable and lawmakers could remedy the situation by voting for the full amount the agency has requested in the FY 2008 budget, according to Paul J. Tobin, President and CEO of United Spinal Association.

n an urgent call for action, United Spinal recently received over 1,000 responses from concerned citizens across the nation eager to help alert Congress to the gravity of the situation. “We are asking lawmakers to ensure that the FY 2008 budget includes the full $10.44 billion that the Social Security Commissioner requested for staffing and administrative expenses––not the lesser amount in the Proposed Budget for FY 2008,” Tobin said.

“Unless the Proposed 2008 Budget is increased, Social Security will lose nearly 7,000 full time positions at a time when there were over 700,000 applications for disability benefits pending in Social Security offices last year.” ...

SSA Employment Dropping

The Office of Personnel Management has finally come up with the numbers showing the number of employees that the Social Security Administration had as of the end of 2006. Below is that number and the same number for other recent dates. This shows a 4% reduction in personnel between the end of 2005 and the end of 2006.

• December 2004 65,286
• December 2005 65,777
• March 2006 64,297
• June 2006 64,814
• September 2006 63,647
• December 2006 63,410