The First Boomer

Kathleen Casey-Kirschling made an appearance with Social Security Commissioner Michael Astrue a couple of days ago. She was dubbed the first baby boomer to apply for Social Security benefits. Here is a background story on Ms. Casey-Kirschling in an old USA Today article. I hate to sound cynical (it's an occupational hazard) but something tells me that Ms. Casey-Kirschling has an agent or publicist. I have a hard time believing that the Social Security Administration would have sought her out.

2.3% COLA

The Associated Press is reporting that the Cost of Living Adjustment (COLA) for Social Security benefits will be 2.3% for this year.

ODAR Quality Assurance Program Coming?

Here is another small nugget from Commissioner Astrue's September 13 letter. He says that one initiative he has to work down "aged" cases, that is claims that have been awaiting a hearing for a long time, is to implement a "quality assurance program." He gives no explanation of what he means.

I do not know what this would mean other than some process by which decisions of Administrative Law Judges (ALJs) are reviewed for "quality" with some action being taken about those that do not exhibit sufficient "quality." The problem is that no one knows what "quality" is when we are talking about ALJ decisions. There is no gold standard. This might permit a Social Security Commissioner to rachet up or down the percentage of claims that are approved by ALJs whenever desired. This is essentially the situation with the "quality assurance" program at the initial and reconsideration levels of review. This is the sort of thing that Social Security Commissioners have desired for a long time. They have long felt that the ALJs are far too independent and need to be brought under some sort of control.

Evidence Submission Restrictions Coming

Here is an excerpt from the September 13 Astrue letter that deserves special attention:

We plan to include many of the hearing level procedures implemented under DSI and now in place for disability cases in the Boston Region into parts 404 and 416 of our rules to reduce the hearing backlog, including time frames for submitting evidence to the ALJ and closing the evidentiary record at the time of the ALJ decision. These changes will expand those rules nation-wide and apply them to hearings on both disability and non-disability matters.

I have seen no evidence that these rule changes will reduce hearing backlogs.

September 13 Astrue Letter

On September 13 Commissioner Astrue sent a lengthy letter to the Chairman of the Senate Appropriations Subcommittee that deals with Social Security. I have reproduced the letter in the separate Social Security Perspectives blog. Due to technical limitations in Blogger, the letter is spread over three posts. Click on each individual page to view it full size.

I have not had a chance to study the letter in detail yet, but it is certainly a much more complete budget picture for Social Security than any other document that has been released. It suggests tough times for the current fiscal year, but improvement in the next fiscal year, which will begin on October 1, 2008.

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GAO Report On Non-Attorney Withholding And SSI Fee Withholding

The Government Accountability Office has issued its long-awaited report on withholding of fees for non-attorney representatives and withholding of fees for representatives of SSI claimants. Here is an excerpt:

Nonattorney representatives who have met the eligibility requirements for fee withholding under the demonstration project have more experience representing disability claimants and are more likely to specialize in disability representation than attorneys or ineligible nonattorneys. According to our surveys, we estimate that nonattorneys eligible for fee withholding have represented on average over 240 disability claimants in a 2-year period, whereas other representatives have represented on average fewer than 90. Nearly all eligible nonattorneys specialize in disability representation, a fact that may explain why they have substantially more experience representing disability claimants. Although both eligible and ineligible nonattorneys lack advanced legal training, many had relevant work experience before becoming disability representatives, such as having worked at SSA. In terms of current employment, attorneys and eligible nonattorneys predominantly work in the private sector, but many ineligible nonattorneys work at nonprofit organizations and government agencies, which may not charge claimants fees. Results in Brief Judges rated attorneys and eligible nonattorneys about equally well overall, and more highly than ineligible nonattorneys, while claimants did not distinguish substantially among the three groups. In overall performance, judges at the 10 sites we surveyed during January and February 2007 viewed attorneys and eligible nonattorneys as comparable, although they rated attorneys more highly in a few specific areas of disability representation. Judges rated about 55 percent of overall performances by both attorneys and eligible nonattorneys as above average or among the best, and only about 6 percent as below average or poor. Many judges also told us they believe that experience in the field rather than legal training is the key to effective representation of disability claimants. However, judges did rate attorneys somewhat more highly than the eligible nonattorneys in certain facets of disability representation, such as in questioning of vocational and medical experts. By contrast, judges viewed nonattorneys who are ineligible for fee withholding as less capable than both attorneys and eligible nonattorneys, both in overall performance and in every facet of disability representation. Ratings by the limited number of claimants we interviewed, on the other hand, did not distinguish substantially among the various representatives in their overall performance. Judges and eligible nonattorneys were generally satisfied with the overall implementation of fee withholding for nonattorneys, but they expressed some concern about the experience standard for nonattorney eligibility. Almost all eligible nonattorney representatives were satisfied with SSA’s overall management of the program. Eligible nonattorneys also report that eligibility for fee withholding has benefited them by, for example, allowing them to take on more cases because they spend less time trying to collect fees from claimants. We found that judges and eligible nonattorneys considered most of the eligibility requirements for participation in the demonstration project to be reasonable. However, both groups, in addition to advocacy groups we spoke with, questioned the adequacy of the experience standard, which calls for nonattorneys to have represented at least five claimants before SSA over a 2-year period. Most of the judges we interviewed and more than half of the eligible nonattorneys considered this to be insufficient experience. Judges, and also advocacy groups we spoke with, said that the standard would not ensure that eligible nonattorneys are well qualified in disability representation. Fee withholding has succeeded in encouraging some attorneys to represent more SSI claimants, but it has also complicated payments to representatives and claimants in certain SSI cases. Attorneys reported that before fee withholding was extended to SSI, the possibility of not collecting their fees affected their decision to represent SSI claimants. Because of the availability of fee withholding, approximately one-third of attorneys with disability practices report that they are now representing more SSI claimants than in the past. Fee withholding, however, has also complicated payments to attorney and nonattorney representatives, as well as to claimants. In some cases, representatives may inappropriately receive both SSA and state payments that may total more than the SSA-authorized fee. Most states provide cash assistance to SSI claimants during the application process. At least 10 of these states pay fees to representatives of successful SSI claimants to encourage representatives to take SSI cases, and therefore increase the number of state residents receiving federal rather than state assistance benefits. Because SSA does not coordinate with these states to prevent overpayments, representatives can collect more than the authorized fee through payments from both SSA and the state—something that under the Social Security Act, representatives are not allowed to do. In addition, fee withholding in the SSI program has delayed benefit payments to claimants. In cases where claimants receive benefits from both the SSI and DI programs at the same time, SSA performs a calculation to determine the total benefits and the amount of the representative’s fee. With the extension of fee withholding to the SSI program, SSA cannot pay benefits until after it has performed this calculation. According to SSA and two disability representative associations, this change has led to delays in claimants receiving their payments, although SSA has not determined the extent of these delays. SSA is tentatively planning to make changes that would address this issue. We are recommending that the Commissioner of SSA monitor the nonattorney eligibility criteria to help ensure that only well-qualified representatives receive access to fee withholding, and if necessary adjust these criteria; assess the extent of overpayments to representatives in cases involving state fees, and if necessary take steps to prevent these overpayments; and continue to explore options to address benefit payment delays for recipients receiving both SSI and DI benefits. In its comments on a draft of this report, SSA agreed with our findings and recommendations, and noted actions it plans to take to address our recommendations.

Astrue On Social Security "Reform"

Social Security wanted to use the "first boomer goes on Social Security" story to promote using the web to do business with the Social Security Administration. However, it was also an occasion to talk about "Social Security reform". Here are some quotes from a Bloomberg article:

Social Security Administration Commissioner Michael Astrue said it is ``highly likely'' that policymakers will amend Social Security sometime between 2009 and 2011, when the next president has a "mandate'' to pursue far-reaching policy changes.

"It's just a question of timing,'' Astrue said. ...

There is more agreement among Democrats and Republicans on how to solve the issue than may be apparent from their public statements, he said.

"When you're behind closed doors, and you're not posturing for the public or for the media,'' Astrue said, "they say almost word for word the same thing.'' ...

"Nobody likes any of the options,'' he said. "Nobody wants to pay higher taxes. Nobody wants to cut benefits. So there's no easy answer one way or another, and so you can't expect anyone to say, `Oh yeah, that's terrific idea.' There is no terrific idea. The question ultimately will be: `What's the least painful idea?''

Behind closed doors Republicans were really saying they supported removing the earnings cap from FICA? Democrats were really saying they support benefit cuts?