Finding A Way To Record The Deaths Of Claimants Who Are Awaiting A Social Security Disability Hearing

It has been suggested to me that it would be a good idea if there were some way to publicly record the deaths of claimants who are awaiting a hearing before an Administrative Law Judge (ALJ) on a Social Security disability claim. There are far more of these deaths now than there used to be because of the enormous hearing backlogs. The deaths are a depressing fact of life for attorneys who represent Social Security claimants. Not a few of these deaths are suicides. Other deaths could have been prevented if the claimant could have had the Medicare or Medicaid that goes with Social Security disability benefits.

There are some technical issues of how best to publicly record these deaths. At best, we will never be able to record anything like all of them. There are also confidentiality issues for attorneys if they list their late clients' names. Still, there ought to be some way of doing this so that the public could get some rough idea of the terrible effects of these backlogs. It would be nice if we could also have these show up on a map.

If anyone has any thoughts about how we could do this, please share it with me either as a comment in response to this item in the blog or by e-mailing me.

Dow Jones Reports On Today's Hearing

Some excerpts from a Dow Jones Newswires article:

Banks should ignore state garnishment orders if the accounts in question include Social Security benefit payments or other protected federal funds, U.S. Senate Finance Committee Chairman Max Baucus, D-Mont., said Thursday. ...

The problem, however, is that while banks may want to help out their customers, refusing to obey a garnishment order puts them at risk of state fines and penalties.

As a result, Congress should consider "whether to undertake legislation that would provide financial institutions with protections from liability," Yakimov said.

Even the Social Security Administration has largely thrown up its hands, Kelsey said.

SSA recommends to beneficiaries that if a creditor tries to garnish their Social Security check, then the beneficiary should tell the creditor their benefits can't be garnished.

"In other words, the exemption provision is to be treated as a defense to be raised by a beneficiary after a freeze or hold has been placed...rather than a bar against the imposition of the freeze or hold in the first place, Kelsey said.

Baucus said that is just wrong.

ALJs Respond To Charlotte Observer Article

The Charlotte Observer recently ran an article about backlogs at Social Security's Charlotte, NC hearing office. The article implied that low productivity by local Administrative Law Judges (ALJs) was a major factor in the backlogs.

This is a charge that I find to be ridiculous. It is inevitable that when you put any group of humans to work on any type of job that there will be a bell shaped curve of productivity. It is naive to think that the fault for this backlog lies with those ALJs who are on the lower end of this productivity curve, when clearly there are not enough of the ALJs and their support staff to get the job done. We cannot repeal the basic human characteristics which lead to the bell shaped curve of productivity. We must hire enough people to get the job done.

Making the same point in a different way are ALJ Randall Frye of Charlotte and Ronald Bernoski, the President of the Association of ALJs, in a response piece that is running in the Charlotte Observer. Here are some excerpts:

...As late as the 1990s, SSA had no significant disability case backlog. Today, the number of cases waiting to be heard exceeds 750,000. Yet the number of judges who handle these cases has remained static -- and the number of support staff has actually decreased.

According to figures released by SSA Commissioner Michael Astrue in FY 2006, administrative law judges handled 550,000 disability cases -- a level that exceeded the agency's own goals. ... In Charlotte in 2006 (the last year for which statistics are available), the disability court [court?] exceeded the agency's 100 percent standard by a full 17 percentage points. ...

FY 2009 Budget Decisions Coming Soon

The Social Security Administration must release its Fiscal Year (FY) operating budget request for FY 2009 (which begins on October 1, 2008) in early 2008. Unlike all other agencies, Social Security is not only allowed, but required, to release its own budget request directly to Congress and the American people. The White House's Office of Management and Budget (OMB) makes its own budget recommendation for Social Security, but cannot censor the release of Social Securitys' own budget request.

For FY 2008, the Social Security Administration, then headed by outgoing Commissioner Jo Annne Barnhart, asked for far more than what was in the OMB budget. As soon as he came on board, Michael Astrue, the current Commissioner of Social Security, disavowed his own agency's budget request, repeatedly telling a somewhat skeptical Congress that he was asking only for the lower OMB budget for his agency.

There is some justification for Astrue's action. President Bush has threatened to veto any budget bill that is greater than the OMB proposed budget. There is enough Republican support for Bush to prevent a veto override. Thus, by asking only for the OMB budget, Astrue was trying to prevent a prolonged budget struggle, not that Astrue's action mattered, since it appears likely that there will be a prolonged struggle over the FY 2008 budget anyway, although the dispute has more to do with other agencies whose budgets are included in the same bill.

Unlike the FY 2008 budget, President Bush's power over the FY 2009 budget is almost non-existent. He can veto anything that Congress passes for FY 2009, but Bush will be out of office long before the end of FY 2009. Congress can easily pass continuing funding resolutions to keep the government going until Bush leaves office and then pass a budget in early 2009 which Bush cannot influence.

This leaves the question of what Michael Astrue will do about the FY 2009 budget. Will he be a loyal Republican operative and refuse to ask for a penny more than the OMB is willing to allow, thus proving that he lacks any independence from the White House, or does he ask for what he really thinks the agency needs, which we can be sure is much more than OMB will recommend? Astrue's budget recommendation makes far more difference with Bush a lame duck. An agency is unlikely to get more money than it asks for.

I do not believe that I am jumping the gun by asking about the FY 2009 budget. My understanding is that agencies are required to provide OMB with their budget requests by mid-September of each year. OMB then gives each agency a "passback" showing what they will allow. Astrue must then decide either to go public with what his agency really needs or buckle under and be a good Republican operative and tell the world that all his agency needs is what OMB has allowed. See Budget Analyst for a much more complete description of the budget process, although Social Security has a unique situation not described there.

Benefit Cards Coming

From American Banker, although I do not have a link to the article:

The Treasury Department wants to convert millions of Social Security benefit payments currently made by checks into prepaid debit cards.The department's Financial Management Service began soliciting bids Sept. 4 from banks to administer the prepaid card program, which would begin in January and take no more than six months to roll out nationwide. ...

The cards would act like a typical debit card with PIN and signature capacities. They would carry a Visa or MasterCard logo on the front and the bank's logo likely on the back. The payments would occur automatically each month, and recipients could access their funds through automated teller machines and point of sale terminals.

The recipients would decide for themselves whether to shift their payments from checks to cards. "Since we're just introducing this product we don't want to make it mandatory right away," she said. "We don't necessarily want people to use a card if they don't want a bank account." ...

$120.4 Million In Underpayments To SSI Claimants

From a recent report by Social Security's Office of Inspector General (OIG) (emphasis added):

The majority of SSI underpayments occur because of changes in recipients' non-medical eligibility factors such as income (earned or unearned) or living arrangements. As changes in these factors occur, recipients' SSI eligibility and payment amounts can change from month-to-month. An underpayment occurs when the amount due to a recipient is greater than the amount paid to a recipient during a period of eligibility. ...

When a claimant files for SSI, a supplemental security income record (SSR) is created. The SSR typically remains open as long as the claimant is in current pay status and for up to 12 months when in nonpayment status. SSA terminates SSRs for a variety of reasons such as after the recipient has been ineligible to receive payments for over 12 months or when changes in the recipient's eligibility factors require a new SSR to be established. These terminated SSRs are considered current until a new SSR is established. Once a new SSR is established, the terminated SSR is considered a prior SSR. ...

We reviewed a random sample of 250 SSRs that contained underpayments between $250 and $24,999. In addition, we reviewed a random sample of 33 SSRs with underpayments $25,000 and greater. ...

We found SSA's internal control of relying on FO staff to manually identify and resolve SSI underpayments on prior SSRs is not adequate. The control is not adequate because FO staff did not always perform the necessary actions to identify and resolve the underpayments. Specifically, for our population of 90,497 prior SSRs that contained underpayments between $250 and $24,999 totaling $120.4 million, we project:

79.3 percent of prior SSRs have underpayments totaling $92.3 million that should have been paid to recipients or offset to existing overpayments, and

23.1 percent of prior SSRs have underpayments totaling $27.9 million that are not due to the recipients and need to be removed from the prior SSRs to avoid improper payments or improper offsets to recipients' overpayments.

Fraud Alleged In Pennsylvania

From the Associated Press:

Authorities say a Berks County [PA] man illegally received nearly $40,000 in Social Security disability payments since 2001.

Berks County detectives and Social Security Administration investigators have accused 46-year-old Heriberto Pagan, of Reading, of working at five different companies and three temporary employment agencies during that time, using stolen identities for which he obtained papers including state ID cards and a Social Security card.

Bill Introduced On Five Month Waiting Period

Thanks to My Disability Blog for alerting me to this article in Ohio.com:

Even though Arthur Woolweaver Jr. contributed to Social Security his whole life, when he became terminally ill with metastatic lung cancer, he was unable to receive any disability benefits.

Three months after the death of the Cuyahoga Falls man, U.S. Sen. Sherrod Brown, D-Ohio, has introduced a bill named for Woolweaver that aims to solve the problem encountered by the 58-year-old in his final months.

The Arthur Woolweaver Jr. Social Security Improvements For the Terminally Ill Act would waive the five-month waiting period in the Social Security Disability program (SSD) [for those who are terminally ill], Brown said.