An Issue Too Hot For Social Security's OGC To Touch -- SSA To Recognize Civil Unions To Limited Extent

The Social Security Administration (SSA) has recently been wondering "whether the Defense of Marriage Act ... would prevent the Commissioner of Social Security ... from providing the non-biological child of one member of a Vermont civil union with social security benefits on account of that individual’s relationship with the child." Amazingly varied family relationship questions arise all the time at Social Security. Social Security's Office of General Counsel issues opinions on these questions several times a month. But, Social Security bounced this question to the Attorney General. I have never seen this before.

The Attorney General's response:

We conclude that it would not [prevent the child from receiving the benefits. Although DOMA [Defense of Marriage Act] limits the definition of “marriage” and “spouse” for purposes of federal law, the Social Security Act does not condition eligibility for CIB [Child's Insurance Benefits] on the existence of a marriage or on the federal rights of a spouse in the circumstances of this case; rather, eligibility turns upon the State’s recognition of a parent-child relationship, and specifically, the right to inherit as a child under state law. A child’s inheritance rights under state law may be independent of the existence of a marriage or spousal relationship, and that is indeed the case in Vermont. Accordingly, we conclude that nothing in DOMA would prevent the non-biological child of a partner in a Vermont civil union from receiving CIB under the Social Security Act.

You wonder what Alberto Gonzales would have said.

Another Hidden Backlog

From a recent report by Social Security's Inspector General:

Each year, a number of workers contact the IRS to dispute earnings reported under their Social Security number (SSN) and the associated taxes. If the IRS concurs with the worker, it sends a referral to SSA stating the reported wages do not belong to the worker. The IRS does not collect Federal income tax from the worker on the disputed earnings and notifies SSA to correct its Master Earnings File (MEF) record using information provided on the Form 9409 IRS/SSA Wage Worksheet (wage referral). Upon receiving the wage referral, SSA uses the Item Correction 2.8 (ICOR) process in the Earnings Modernization system to remove the disputed earnings from the worker's earnings record.

Our March 2003 report stated that, as of March 2002, the IRS had sent SSA approximately 12,000 disputed wage referrals for Tax Year (TY) 1999. We found that SSA had not processed these referrals to determine whether workers had overstated wages on the MEF. By not reviewing these IRS wage referrals, SSA was missing an opportunity to correct individual earnings records, prevent the misuse of SSNs, and reduce improper benefit payments.

Not every problem at Social Security is due to inadequate staffing. However, this appears to be a backlog that the agency has been aware of but has not had enough staff to correct. Hearing backlogs get press attention, but the Social Security Administration has hidden backlogs like this all over the place. The effect of many of these backlogs is inaccurate payment of benefits. Some people are being paid too much and some people are being paid too little. Cumulatively, the inaccuracies may be over a billion dollars a year, but no one knows.

Changes At NCPSSM

From a press release:

The National Committee to Preserve Social Security and Medicare (NCPSSM) President and CEO, Barbara B. Kennelly has announced the creation of a new non-profit foundation, The National Committee to Preserve Social Security and Medicare Foundation. The National Committee Foundation is a 501c3 organization whose mission is to provide public education through sound policy analysis and media focused outreach on the future of the Social Security and Medicare programs. ...

"The NCPSSM Foundation will expand and enhance the successful advocacy work we've been doing for the past 25 years at the National Committee. The Foundation's unique goal is to restore balance to the so-called "entitlement" debate through sound policy analysis. ....Barbara B. Kennelly, President/CEO.

Former Congresswoman Kennelly also announced the appointment of Scott L. Frey to the Position of Executive Director of the National Committee Foundation. Mr. Frey has over 20 years of experience in health, aging, and retirement income policy and advocacy in Washington, both on Capitol Hill and in the non-profit sector.

Social Security Subcommittee Hearing

Yes, the House Social Security Subcommittee is having a hearing. It is scheduled for June 24 at 10:00. The subject is the use of various subterfuges to avoid the anti-assignment provisions of the Social Security Act.

House Social Security Subcommittee Hearing Coming

From the Payday Pundit blog:

The Payday Pundit has been informed the the House Subcommittee on Social Security may hold a hearing to investigate arrangements that permit benefit payments to be deposited into a third party’s “master” account when the third party maintains separate “sub” accounts for individual beneficiaries. ...

Social Security Owes Claimants $445 Million

From a report by Social Security's Inspector General:

[An] underpayment is any monthly benefit amount due an entitled beneficiary that has not been paid. ...

We found that SSA needed to improve its controls and procedures to ensure underpayments were appropriately paid on behalf of terminated beneficiaries. Based on a random sample of 300 underpayments, we determined that SSA needed to take corrective actions to (1) pay $177,184 in underpayments payable to 180 eligible beneficiaries and individuals and (2) remove $44,214 in erroneous underpayments from the MBR [Master Beneficiary Record] for 49 terminated beneficiaries. As a result, we estimate there are

$358.7 million in underpayments payable to 391,844 eligible beneficiaries and individuals, and

$86.7 million in erroneous underpayments on the MBR for 109,712 terminated beneficiaries

That is a lot of money! Lack of an adequate workforce could have something to do with this.

This Is What We Were Telling You

From a report by Social Security's Inspector General:

On October 29, 2007, SSA issued a notice of proposed rulemaking (NPRM) that stated "Our program experience has convinced us that the late submission of evidence to the [Administrative Law Judge] significantly impedes our ability to issue hearing decisions in a timely manner." To remedy this situation, the NPRM listed a number of potential changes to the appellate process, including (1) requiring at least 75 days' notice for hearings and (2) requiring the submission of evidence at least 5 days before the hearing to ensure the Administrative Law Judge has time to review the evidence. Subsequent to the NPRM, the Commissioner requested that the Office of the Inspector General evaluate and document the extent to which delays in the submission of evidence affects the timeliness of the hearing and appeal process.

RESULTS OF REVIEW

We determined that the Case Processing and Management System (CPMS) information being used by the Office of Disability Adjudication and Review (ODAR) to monitor the timeliness of medical evidence did not indicate the late submission of medical evidence before hearings was a significant issue at hearing offices. ODAR managers identified two points in the hearing process affected by the late submission of medical evidence by claimants and their representatives before the hearing: hearing postponements (where the hearing is scheduled for a later date) and post-hearing development (where evidence is reviewed after the hearing). When we reviewed these two points of the hearing process, we found that about 0.2 percent of hearings were postponed annually as a result of late medical evidence and about 1.8 percent of the workload currently in-process was significantly delayed after the hearing due to late medical evidence.

When we reviewed all medical evidence delays in the hearing process, in addition to claimant-related issues before the hearing, we found that as much as 7.2 percent of the workload currently in-process was significantly delayed because of late medical evidence. However, since the majority of these medical evidence issues occur before the claimant's hearing is scheduled, they are neither directly associated with the medical evidence problems noted in the October 2007 NPRM nor likely to be remedied by the hearing process changes proposed in the notice.

Tell Me More

Social Security recently issued a report entitled "Plan to Eliminate the Hearing Backlog and Prevent Its Recurrence: Semiannual Report Fiscal Year 2008", yet the 18 page document does not show the current state of the backlog or show any projection on when the backlog will be eliminated. You would expect this sort of data in a report with this title. The absence of this data seems remarkable.

The report does not show how many new Requests for Hearing that Social Security has received so far this fiscal year or how many dispositions of these Requests for Hearing that Social Security has made so far in this fiscal year. All the report says is "In FY 08, ODAR has been challenged by new receipts for hearings that continue to rise above FY 07 levels and the loss of experienced Administrative Law Judges through attrition." That does not sound like things are going well, especially when you consider the elliptical nature of the report.

The report contains a chart showing the decline in the number of cases pending more than 900 days. This shows that Social Security is doing a less bad job in spreading the misery around, but that tells us nothing about the overall state of the misery.

I posted a report that I had received from inside Social Security that the backlog of people waiting for a hearing before a Social Security Administrative Law Judge (ALJ) was increasing at the rate of about 10,000 per month. That is a huge rate of increase. As I posted at the time, if this is true it would take an additional 200 or more ALJs just to keep the backlog from growing. Social Security is only planning to hire 175 more ALJs this year -- and the net increase in the number of ALJs will not be 175 because of the ordinary attrition of those who are already ALJs.

This week, the House Appropriations Subcommittee that covers the Social Security Administration will be marking up Social Security's operating budget for Fiscal Year (FY) 2009, which begins on October 1, 2008. I think that Subcommittee ought to know the current state of the hearing backlogs and whether and at what rate that backlogs is expanding. The Subcommittee needs to know how many ALJs Social Security needs to stop the backlog from growing and to start reducing it and how much this will cost. This "Plan to Eliminate the Hearing Backlog ..." is just happy talk. Congress needs hard numbers.