New Regulations In Final Months Of Bush Administration

With the end of the Bush Administration in sight and several possible regulatory changes in the pipe at Social Security, it is a good time to review what the Office of Management and Budget (OMB) is telling federal agencies. What OMB says matters since OMB has to approve any proposed regulations before they go in the Federal Register. Here is an excerpt from a recent memo from OMB to federal agencies:

Every regulatory agency and department has a responsibility for continuing to ensure regulations issued in this final year are in the best interests of the Alnerican public. To the extent pennitted by law, the heads of executive departments and agencies should continue to minilnize costs and maxilnize benefits for each of their upcoming regulations, and should avoid issuing regulations that are unnecessary. Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.

Results Of Unscientific Poll

What is your general impression of the job that Social Security does in deciding upon disability claims?

It's way too easy to get on disability benefits. They're approving a lot of phonies. (5)	6%
Social Security is a bit lax . Some people are getting on benefits who shouldn't. (10)	11%
Social Securtiy does as good a job of deciding who is disabled and who isn't as you could reasonably expect. (11)	12%
Social Security makes it a bit too tough. Some people are being denied who should be approved. (10)	11%
They make it far too tough. Many people who are way too sick to work are being denied. (8)	9%
It's a bit of a mess. They approve some people who should be denied and deny some people who should be approved. (22)	24%
It's a total mess. There's little consistency. You can never tell who is going to be approved and who is going to be denied. (24)	27%

Total Votes: 90

New Regulations

Today's Federal Register includes two new Social Security items.

The first is a "direct" final regulations with request for comments, which is effective on August 18, 2008 unless adverse or critical comments are received

... amends our regulations by correcting a cross-reference affecting entitlement to mother's and father's benefits, to include alternatives to the 9-month duration of marriage requirement. We are deleting an out-of-date cross- reference to the definition of ``substantially all.'' In its place, we are restoring the regulatory definition for ``substantially all'' that had been inadvertently deleted to show if a grandchild or stepgrandchild is dependent based on our support requirements. Also, we are revising headings in six of our regulations to conform to plain language provisions of Executive Order (E.O.) 12866, as amended.

We are also amending one of our regulations for clarity and to correct a typographical error.

The second is a notice of proposed rulemaking:

These proposed rules would amend our title II regulations to explicitly provide that we apply an underpayment due an individual to reduce an overpayment to that individual in certain cases. Our title XVI regulations already state this policy. Additionally, these proposed rules reflect our procedures for collecting overpayments when a payment of more than the correct amount is made to a representative payee on behalf of a beneficiary after the beneficiary's death. These proposed rules would clarify that we would collect overpayments in this situation from only the representative payee or his estate but would not collect these overpayments from the representative payee's spouse or from the spouse's estate.

What Hourly Rate For Paralegals?

The Supreme Court recently held in Richlin Security Service Co. v. Chertoff that fees are available for paralegal assistant time under the Equal Access to Justice Act (EAJA), which requires the federal government to pay attorney fees for those who sue the federal government when it is determined that the government's position was not substantially justified. This raises the question of what rate is available for paralegal assistant time. The Alaska Employment Law blog tells us that the government did not object to a $95 hourly rate for paralegals in Onstead v. Astrue, 2008 WL 2065252 (D.Alaska May 13, 2008).

NADE Newsletter

The National Association of Disability Examiners (NADE), an organization of personnel who make the initial and reconsideration determinations on Social Security disability claims, has issued its Summer 2008 newsletter.

The following is a letter to the President of NADE reproduced in the newsletter that others may find of interest:

I thought that you and your colleagues might be interested in the following:
I looked at 100 consecutive claimant scores on the Test of Memory Malingering(TOMM) from psychological evaluations that I conducted between 8/07 to 6/08 and found that 36% provided a suboptimal performance. In other words, 36% of the claimants did not provide a valid level of effort during testing, for whatever reason. The age range was 8 to 66. This finding suggests to me the importance of including an effort level test, such as the TOMM, in most CE psychological test batteries.

Sincerely,
Jack Stephenson, Ph.D.
Torrance, CA 90505

Deadline Bill Proposed

From the March on Politics blog:

U.S Rep. Kathy Castor of Tampa has filed a bill aiming at a longstanding problem, the backlog of Social Security disability cases.

Castor’s bill is only the latest of many legislative attempts made over the years to solve the problem, but Congress has never figured out how.

The problem arises when individuals are turned down on claims for disability benefits under Social Security. Many appeal, and two-thirds of those who appeal eventually win their cases, Castor said. But the appeals process often takes years, during which the individuals don’t get the benefits.

From fiscal year 1997 through 2006, Castor noted in a news release, backlogged disability claims in the Social Security Administration’s processing system doubled, reaching about 576,000 cases.

Castor’s legislation would set deadlines for the Social Security administration to hold hearings on appeals.

“Some Tampa Bay families wait as long as four years for a hearing,” Castor said in a news release. “They can lose their homes and some end up living in homeless shelters. ... This is unacceptable.”

Last year, President Bush proposed more money for faster hearings, and Congress approved more than Bush requested. But partly because of concerns about widespread fraud, speeding up approval of claims enough to dispel the backlog has proved an insoluble problem.

$48 Million Extra Funding For SSA

From a Legislative Bulletin issued by the Social Security Administration (SSA) (emphasis added):

On July 9, 2008, the Senate passed H.R. 6331, the “Medicare Improvements for Patients and Providers Act of 2008,” by unanimous consent. Earlier in the day, a cloture vote passed by 69-30, which cleared the way for final approval. The bill is identical to the bill that passed the House on June 24, 2008. The President has indicated that he will veto the bill. However, the margin of the votes in the House and the Senate has been characterized as “veto proof.”

A general description of the bill may be found in Legislative Bulletin 110-29.

H.R. 6331 contains the following provisions of interest to SSA:

Eliminating Barriers to Medicare Savings Programs Enrollment

• Requires SSA to provide applicants for Medicare Part D Low-Income Subsidy (LIS) with information about Medicare Savings Programs (MSP) assistance, including information about how to contact the State health insurance assistance program (SHIP).

• Requires SSA (with the consent of those filing) to transmit LIS application data to the States. Once received, the LIS data would serve as a protective filing for MSP, with State agencies being required to complete appropriate MSP development and make eligibility determinations. The content, form, and manner in which information (on a uniform basis for all States) shall be transmitted would be determined by the Commissioner, in consultation with HHS and the States. Effective January 1, 2010.

• Requires SSA to provide MSP training to employees currently involved in LIS application-taking, so that those employees can promote beneficiary awareness of MSP, thereby increasing MSP participation.

• Provides start-up funding of $24.1 million to SSA for activities related to MSP outreach and transmittal of data to states. Funds would be appropriated as of October 1, 2008, and remain available until expended. Ongoing funding for MSP-related activities would be provided, beginning with fiscal year 2011, through a separate ongoing appropriation of $3 million annually to HHS. HHS would provide this funding to SSA via a reimbursable agreement, and the funds would only be available to HHS for this specific purpose.

• Provides funding of $24.8 million to SSA for LIS activities required due to changes in MSP and LIS programs. Funds would be appropriated as of October 1, 2008, and remain available until expended.

Exemption From Income and Resources for Determination of Eligibility for Low-Income Subsidy

• Eliminates counting in-kind support and maintenance as income and life insurance as a resource for LIS purposes. Effective for applications filed on or after January 1, 2010.

Judicial Review of Decisions of the Commissioner of Social Security Under the Low-Income Subsidy Program

• Codifies SSA's existing policy that denied LIS applicants can appeal to the civil courts, once the administrative appeals process is exhausted. Effective as if enacted with the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. ...

OTHER PROVISIONS OF INTEREST: ...

• Eliminates Part D late enrollment penalties for individuals who are eligible for LIS. Effective January 1, 2009.

• Clarifies that, in the event of a recipient's death, the State is not allowed to attempt recovery (through the recipient's estate) of costs associated with providing MSP assistance. Effective January 1, 2010.

Backlog Just Gets Worse

Since February 2008, the National Organization of Social Security Claimants Representatives (NOSSCR) has been publishing statistics it obtains from Social Security on the backlog of claims awaiting hearings before Administrative Law Judges (ALJs). This started about the time that Democrats became the majority party in Congress, as well as about the time that Michael Astrue became Commissioner of Social Security. You can make your own guess on the explanation for the timing.

I thought it would be interesting to extract the numbers to show what has been happening to the ALJ hearing backlog over this time period. Here are the national numbers, shown by the number of days of backlog existing at any given time:

• January 25, 2007 -- 508 days
• May 25, 2007 -- 523 days
• July 28, 2007 -- 528 days
• August 31, 2007 -- 523 days
• November 30, 2007 -- 500 days
• February 29, 2008 -- 511 days
• May 30, 2008 -- 523 days

The net result is that we are half a month further behind than we were a year and a half ago. Neither Michael Astrue becoming Commissioner of Social Security nor Democrats becoming the majority party in Congress has helped, other than, perhaps, keeping the backlog from growing more than it has.