SSNs Off Medicare Cards?

Below is a legislative bulletin from Social Security, but please notice the footnote.

On September 29, 2008, the House suspended the rules and passed H.R. 6600, the “Medicare Identity Theft Prevention Act of 2008,” by voice vote. The bill now goes to the Senate. 1

Provisions of interest to the Social Security Administration are described below.

• Would require the Secretary of Health and Human Services, in consultation with the Commissioner, to establish cost-effective procedures to ensure that Social Security numbers (SSNs) or derivatives thereof would not be displayed on or embedded in Medicare cards.

• Would be effective with respect to Medicare cards issued on or after the effective date determined by the Secretary but in no case would such a date be later than 24 months after the date adequate funding is provided (see penultimate bullet below).

• Would provide that all Medicare cards with SSNs be reissued under the new requirements no later that 3 years after effective date specified above.

• Would allow individuals to apply for reissuance of Medicare cards before the general reissuance effective date under exceptional circumstances as the Secretary would specify.

• Would require the Secretary, in consultation with the Commissioner, to develop an outreach program about the new Medicare cards.

• Would require the Secretary, in consultation with the Commissioner, to submit a report to Congress with options for implementation of the requirements, including costs estimates and justifications of the costs associated with each option. The report would be required no later than 1 year after enactment.

• Would provide that the requirements would not take effect until adequate funding is provided.

• Would authorize, after the report is submitted, appropriations to the Secretary and Commissioner for administrative expenses for each of the 5 fiscal years related to implementation of the bill.

1 It is unclear as of the date of this Bulletin whether the Senate will take action on the bill before the 110th Congress adjourns.

Social Security Denies That Computer Shutdown Will Affect Voter Registration

A press release from Social Security:

For over fifteen years the Social Security Administration has scheduled a shutdown of its National Computer Center on Columbus Day weekend for repairs and maintenance; it has only been postponed once and that was due to special workloads created by Hurricane Katrina. The repair and maintenance is a major production for the agency's system and facility experts that involves scheduling of overtime for key staff, committing contractors to extremely tight turnaround times for the work, and other complexities. As the antiquated National Computer Center has frayed over the years, the importance of timely repairs and maintenance has increased significantly.

Among the many new responsibilities that Congress has added to Social Security's workloads is verifying a small percentage of voter registrations. This year there has been unwarranted concern that the annual shutdown will somehow interfere with voter registration. The system will be up and running until midnight Friday night, so there is plenty of time for voters registering Friday, October 10 to be verified. Voters registered on Saturday, October 11 or Sunday, October 12 can be verified starting Monday, October 13 at 5 a.m. EDT, more than three weeks before the election. When state and local election registrars are working on Columbus Day, Social Security systems will be available to verify registrations, and the agency will be providing its usual same-day service. The expected increased volume of transactions on Monday does not present a problem for prompt response.

Delaying the shutdown into 2009 would pose a small, but not insignificant, risk of a major interruption of service for the hundreds of millions of Americans who rely on our computer systems to provide retirement, disability and survivors benefits, Medicare benefits, employment verification and other services. We have recently indicated in our new strategic plan that Congress needs to support a new National Computer Center, which would help us provide services without interruption.

"As many Americans are enjoying Columbus Day weekend, the hardworking men and women of the Social Security Administration will be working intensely to satisfy every reasonable expectation of service, including voter registration verifications," Commissioner Astrue stated. "I regret that people unfamiliar with the facts of this situation have sought to create a partisan issue where there is none."

What I do not know is whether real time access is needed to verify voter registration. If real time access is not needed, I do not know why anyone ever made an issue of this. If real time access is needed, I do not know why Social Security sent out this press release. Update: I guess I can think of a reason why this would be worth making an issue over even if real time access is unnecessary. Elections offices may be receiving so many new voter registrations that they need to work a lot of overtime to get everyone on the books before election day. Being unable to work that weekend could be a real problem for them. By the way, notice the somewhat truculent tone of the press release. It sounds like Michael Astrue wrote it himself. Can someone with this attitude work with a Democrat in the White House, Democrats in stronger control of Congress, a Democrat as the #2 man at Social Security and a Democrat as his Inspector General? That is what Michael Astrue may face next year if the political trend we see now continues.

Voter Registration Questions Persist And Social Security Not Responding

Roll Call is reporting on the voter registration problems that may be caused by Social Security's scheduled computer shutdown over the Columbus Day weekend. The states are required tunder the feheral Help America Vote Act to crosscheck new voter registrations with Social Security's database. The maintenance is routine, but can still cause problems for election officials. Democrats, in particular, are making a concerted effort to register new voters for the upcoming election. Social Security did not respond to Roll Call's request to discuss the matter.

I hope that no one at Social Security has called the White House to ask what to do about this.

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. ...