New Administrative Waiver Limit

Social Security typically waives Supplemental Security Income (SSI) overpayments when the claimant requests waiver and the amount of the overpayment is below a certain amount. These are called "administrative" waivers since Social Security believes that the cost of pursuing the overpayment is more than the amount of money involved. The limit had been $500. It was just raised to $1,000 on September 27, 2008.

There are a couple of caveats. The claimant must request waiver. The Social Security field office can decide not to give an administrative waiver if they really think the claimant is a bad actor. What Social Security calls "double check negotiation" (DCN) overpayments are never supposed to be waived. A DCN happens when the claimant reports that his or her monthly check never arrived. Social Security tells the Treasury to issue a replacement check. The claimant then cashes the original check plus the replacement check. That can happen by accident because the claimant is confused, but there are plenty of cases where the same claimant does this repeatedly or where a rash of DCNs happen in one area.

Proposed Procedural Regs

The Social Security Administration just filed this set of proposed amendments to its regulations with the Office of Management and Budget:

We propose to amend several regulations and provide new regulatory language to address inefficiencies in the hearings process. The amendments include provisions clarifying that claims denied by state Disability Determination Services and other adjudicators for “failure to cooperate” are technical denials rather than medical determinations, and providing flexibility in setting the time and place of hearings. We also intend to propose new regulatory provisions that will allow ALJs to dismiss a request for a hearing where a claimant has abandoned his or her claim and to specify regulatory standards that require ALJs to clearly articulate their rationale when issuing decisions on remanded claims.

OMB must approve the proposed regulations before Social Security can publish them in the Federal Register. Probably, this proposal would allow an ALJ to dismiss a request for hearing if the attorney shows up but not the claimant. Would this proposal mean that "failure to cooperate" denials could not be appealed? What does "flexibility in setting the time and place of hearings" mean? Also, I thought Administrative Law Judges (ALJs) were already supposed to "clearly articulate" their rationales. How does adopting a regulation saying that change the situation?

A Snide Comment

I started not to post anything about this, but I think it is worth mentioning. Here are some excerpts from the California Appellate Report blog by Shaun Martin, professor of law at the University of San Diego (USD), about the decision of the Ninth Circuit Court of Appeals in Crawford v. Astrue:

I'm somewhat appalled that an attorney -- especially a potentially not-very-good one -- can take a hefty amount of attorney's fees from a client in a totally simple case. The opinion here involves three cases from the law firm run by Lawrence D. Rohlfing (in Santa Fe Springs), which does social security cases and that contracts with its clients for the statutory maximum of 25% of the past-due benefits award. In the first case, an attorney affiliated with Rohlfing's firm -- Brian C. Shapiro -- spent less than 20 hours (in addition to less than five hours of paralegal time) in simple proceedings and obtained an award of $123,891.20, twenty-five percent of which would be $30,972.80. In other words, over $1500 an hour. Not bad for someone who's a 1997 graduate of Whittier Law School. Similarly, in the second case, another 1997 graduate of Whittier, Young Cho, also spent less than twenty hours (and less than five hours of paralegal time) to obtain an award the 25% contingency of which would be around $20,000.00. And in the final case, Denise Haley, an older graduate of Loyola Law School, worked 25.5 hours (plus 1.1 hours of paralegal time) to get an award the 25% contingency of which would be over $43,000; in other words, around $1700/hour. And, remember, these are not tough cases -- they're social security matters, and ones that (tellingly) take around 20 hours total to resolve. ...

Do I feel the same way about other lawsuits -- say, a difficult and hotly contested medical malpractice action? Honestly, no. There, for some reason, even if the attorney ends up making $1000+ an hour, I feel like they may well have earned it. But social security matters -- and ones that take less than a couple dozen hours at that? There's just some part of that that feels different to me.

Notice the extreme degree of condescension here even when the author knows essentially nothing about the field of law or its economics or the people involved? I wonder if Professor Martin feels like he is slumming by teaching at the USD. I guess that USD must have a much more highly highly regarded law school than Whittier or Loyola, but California readers may be able to help on that one.

I could write a good deal on the subject, but the bottom line is that attorneys are hardly eager to do federal court work in Social Security cases. Only a relatively small percentage of attorneys who represent Social Security claimants administratively even want to do the federal court work. I think a reasonable person might wonder if adequate economic incentives are in place to attract attorneys to this field of practice. Basically, if it is so easy and so lucrative, why do so few attorneys get involved? I would suggest that is is because of decisions such as Crawford.

Apparently, this is not the first time that Martin has made comments that others found offensive. Professor Martin does not allow comments on his blog, but you can e-mail him.

Results Of Last Week's Unscientific Poll

Do you think that the proposed bailout of financial markets currently being negotiated between Congress and the White House is a good idea?

Yes (24)	36%
No (43)	64%

Total Votes: 67

Drafter Of Social Security Legislation Dies

From the Washington Post:

Lawrence E. Filson, 85, former deputy legislative counsel for the U.S. House of Representatives and the principal draftsman of all the major Social Security laws between 1954 and 1989, died Sept. 21 of complications from Alzheimer's disease at the Collingswood Nursing and Rehabilitation Center in Rockville. ...

He drafted the original Medicare, Medicaid and Supplemental Social Security laws. ...

Different Standards At VA And Social Security Raise Questions

The Oregonian newspaper is running a story on the difficulties that many veterans declared 100% disabled by the Department of Veterans Affairs (VA) have in obtaining Social Security disability benefits. Like many newspapers, the Oregonian is going multi-media in its online edition. You can see the video piece they prepared for this article.