The Social Security Plum List

Social Security keeps a convenient list of the Presidential appointments concerning Social Security. It gives a convenient summary of what appointments will be available to the incoming President. I had not realized that Sylvester Schieber's term as head of the Social Security Advisory Board was about to end, for instance, or that Jeffrey Brown's term on the Board has already ended.

The big appointments, assuming Michael Astrue does not resign after the election, are Deputy Commissioner of Social Security and Inspector General.

I've Got Stats For You

Social Security has released a report with the catchy title of "Earnings and Employment Data for Workers Covered Under Social Security and Medicare, by State and County, 2005." I will not pretend that it is all that interesting, but you can compare the county you live in to other counties in your state and elsewhere. Here are what Social Security considers to be the highlights:

Social Security

• In 2005, 159.1 million workers had earnings taxable under the Social Security program. About 141.9 million had only wages, 9.6 million had only self-employment income, and 6.8 million had both.
• Social Security taxable earnings totaled $4.768 trillion, which includes earnings up to the taxable maximum of $90,000.
• Social Security taxes totaled about $591 billion.

Medicare

• In 2005, 162.9 million workers had earnings taxable under the Medicare program. About 145.6 million had only wages, 9.5 million had only self-employment income, and 7.8 million had both.
• Medicare taxable earnings totaled $5.886 trillion.
• Medicare taxes totaled about $171 billion.

Social Security has also issued the "SSI Annual Statistical Report, 2007." The highlights:

Size and Scope of the Supplemental Security Income Program

• About 7.4 million people received federally administered payments in December 2007.
• The average monthly payment in December 2007 was $468.
• Total payments for the year were more than $41 billion, including about $4 billion in federally administered state supplementation.

Profile of Recipients

• The majority were female (56 percent).
• Fifteen percent were under age 18, 57 percent were aged 18 to 64, and 27 percent were aged 65 or older.
• Most (83 percent) were eligible on the basis of a disability.
• Almost 5 out of 10 recipients under the age of 65 were diagnosed with a mentaldisorder.
• More than half (56 percent) had no income other than their SSI payment.
• Thirty-five percent of SSI recipients also received Social Security benefits.
• Of the people receiving SSI benefits, about 2 percent were residing in a Title XIX institution where Medicaid was paying more than half of the cost.
• Despite their disabilities, about 357,000 recipients (5.7 percent) were working in December 2007.

Bomb Scare In Wilkes-Barre

Social Security's Data Operations Center in Wilkes-Barre, Pennsylvania was evacuated yesterday for hours due to a bomb scare. Fortunately, it was a false alarm.

Mental Impairment Listings Still Hanging

The Office of Management and Budget (OMB) cleared new proposed mental impairment listings on July 9, three months ago. Normally, Notices of Proposed Rule-Making (NPRMs) appear in the Federal Register within a few days after being cleared by OMB, but not this one.

I do not know what is going on, but I have to wonder if this NPRM is being held up due to the proximity to the election or the proximity to the change in administration. Everything about Social Security's handling of mental impairment cases was extremely controversial in the early '80s when Michael Astrue last worked at Social Security. Any significant tightening of these listings would be controversial today, perhaps controversial enough to catch the attention of the general public. Even if this is not the sort of thing that could have even a minor effect upon the election, an Obama administration might have very different feelings about this proposal than the Bush administration or a McCain administration. John McCain appears to have exhibited little sensitivity to mental health issues. A statement that McCain gave to the National Alliance on Mental Illness (NAMI) seems to me to display little enthuaism for helping the mentally ill and a strong tendency to emphasize substance abuse and personal responsibility when talking about mental illness. Contrast McCain's statement with the responses that Obama gave to a NAMI questionnaire.

Will this NPRM be published shortly after the election? Will this version of the proposal never be published because a revised version of the proposal will be resubmitted to OMB after the new President takes office? Will the election result affect what happens with the mental impairment listings? My best guess, worth every penny you paid for it, is that the NPRM gets published immediately after the election if McCain wins, but never gets published if Obama wins because a different proposal more favorable to the mentally ill will be submitted to the OMB once Obama takes office.

Barack Obama On Social Security Disability

Barack Obama's website says that if elected he intends to create a National Commission on People with Disabilities, Employment and Social Security with the intention of:

• Examining and proposing solutions to work disincentives in the SSDI, SSI, Medicare, and Medicaid programs.
• Revisiting the Ticket to Work Act to assess how it can better provide SSDI and SSI beneficiaries with the supports they need to transition into work.
• Considering opportunities to improve the results produced through the relationships between the SSDI and SSI programs and the workforce investment and vocational rehabilitation systems.
• Examining the sufficiency of SSDI and SSI benefit levels in light of available work opportunities for working-age people with disabilities.
• Determining the sufficiency of the “substantial gainful activity” level in the SSDI program and whether it should be indexed to average hourly wages or some other measure.
• Studying programs that would help young people join the labor force rather than the SSI rolls.

He would also:

Streamline the Social Security Approval Process: The Social Security Administration (SSA) has been consistently under-funded, resulting in unconscionable delays in initial claims determinations and hearings for individuals applying for the Social Security Disability Insurance (SSDI) and Social Security Supplement Security Income (SSI) programs. The SSA's disability claims backlog has reached a record high of 755,000, up from 311,000 in 2000. The average wait time for an appeals hearing averages 505 days and, in some cases, can exceed three years. Barack Obama and Joe Biden believe that it is unacceptable to have a system in which individuals lose their homes or are forced to declare bankruptcy because the federal government cannot process their claims quickly enough. Barack Obama and Joe Biden are committed to streamlining the current application and appeals procedures to reduce the confusion that surrounds these important programs. As president, Obama will also ensure that the SSA has the funding it needs to hire judges and staff and to invest in technology to expedite final decisions. Obama supported the $150 million increase in the SSA's budget that was vetoed by President Bush this year. As president, he will continue to work to ensure that the SSA has the resources it needs for hiring and to more effectively process its caseloads.

I will post on John McCain's positions on Social Security disability issues if anyone can find them for me. I have been unable to find them.

Social Security And Voter Registration Story Gets More Complicated

I had earlier commented that Michael Astrue's letter to state election officials about possible excessive use of Social Security's databases to confirm new voter registrations seemed to be a possible sign of voter suppression. It appears that voter suppression is going on, probably unintentional, but those letters were not part of it, but an indirect result of it. A New York Times article shows that the letters from Social Security were brought about by inquiries to Social Security from the New York Times, concerning state efforts to purge voting rolls. The Times article is confusing, but it is clear that we should all hope that this election is not close because there have been some dramatic and probably illegal purges of voting rolls. There may be some would-be voters getting a nasty surprise on election day.

NPRM Part VI -- Ethics -- And Those Loaded Words "Fiduciary" And "Profession"

I am not through talking about Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. My topic today is provisions in the proposal concerning ethics for those who represent claimants. Let me just copy here the parts that I am talking about today:

All persons acting on behalf of a party seeking a statutory right or benefit must, in their dealings with us, faithfully execute their duties as agents and fiduciaries of a party. ...

A representative must ... Conduct the representative’s dealings in a manner that furthers the efficient, fair, and orderly conduct of the administrative decision-making process, including duties to:

• This includes knowing the significant issue(s) in a claim and having a working knowledge of the applicable provisions of the Social Security Act, as amended, the regulations and the Rulings;
• This includes providing prompt and responsive answers to requests from the Agency for information pertinent to processing of the claim; ...

A representative must not:

• Through the representative’s own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see § 404.911(b)), the processing of a claim at any stage of the administrative decision-making process;
• Attempt to influence, directly or indirectly, the outcome of a decision, determination or other administrative action by offering or granting a loan, gift, entertainment or anything of value to a presiding official, Agency employee or witness who is or may reasonably be expected to be involved in the administrative decisionmaking process, except as reimbursement for legitimately incurred expenses or lawful compensation for the services of an expert witness retained on a noncontingency basis to provide evidence;
• Threatening or intimidating language, gestures or actions directed at a presiding official, witness or Agency employee which results in a disruption of the orderly presentation and reception of evidence;
• Violate any section of the Social Security Act for which a criminal or civil monetary penalty is prescribed;
• Refuse to comply with any of our rules or regulations;
• Suggest, assist, or direct another person to violate our rules or regulations;
• Advise any claimant or beneficiary not to comply with any of our rules and regulations;
• Assist another person whom we have suspended or disqualified; or
• Fail to comply with our decision regarding sanctions.

This talks about a representative acting as a fiduciary. It seems to me that this means that failing to failing to behave as a fiduciary on behalf of a claimant is a punishable offense. The term fiduciary implies many important duties. Those duties vary somewhat from jurisdiction to jurisdiction, but having a conflict of interest is always forbidden. In this context, one example of a conflict of interest would be trying to represent a Social Security disability claimant while also working as a contractor for the Social Security Administration. There are a few people who attempt to work as a vocational expert for the Social Security Administration,while also trying to represent claimants. That raises my eyebrows. Does this proposal mean to end that? I hope so. Maximus is a large Social Security contractor, but also represents Social Security claimants. That seems wrong to me. Another example would be trying to represent Social Security claimants at the behest of an insurance company which has an adversarial relationship with the claimant. Allsup is not only doing this big time, but is also serving as a debt collector for the insurance companies. I hope that Social Security meant to forbid these sorts of relationships. This is not the sort of thing that a fiduciary should be doing.

If we are going to start down this path of regulating non-attorney representative conduct in a way that has some similarity to the regulation of attorneys, as the use of the word fiduciary implies -- and I think we should -- there are other duties that I think ought to be incorporated into the regulations, such as:

• Communicate with the client
• Maintain confidentiality of information received from the client
• Avoid sexual relations with the client
• Keep advertisements truthful
• Maintain independence from the influence of individuals or entities who are not professional representatives
  

We now have a large and growing group of individuals who have what amounts to an officially recognized license to represent Social Security claimants, which makes this group a profession. However, this nascent profession is not now subject to the sort of disciplinary rules that apply to attorneys and other professionals. If this group is a profession, it is time for them to accept, even welcome, the ethical responsibilities that go along with being a profession. If they are not a profession, they should not be getting this sort of government license.

To move on, a lot of what is in the proposal is vague, almost to the point of being unconstitutionally vague. Prompt and responsive answers? Unreasonably delay? Threatening or intimidating language, gestures or actions? Fail to comply with ANY of our rules or regulations? And why does this talk of rules AND regulations unless it intends to draw a distinction between the two, but the distinction is somewhere between elusive and non-existent, unless you want to include something like POMS as rules but not regulations. I think it would be ridiculous to discipline someone for violating something hidden away in the vast recesses of POMS. I know it can be hard to define a lot of this. Much falls into the category of "I know it when I see it," but this proposal is still awfully vague. Without something more specific Social Security will never be able to make charges stick unless the representative's conduct is really, really bad.

I am glad that this forbids representatives from assisting those who have been suspended or disqualified. I think it should also forbid assisting disbarred attorneys who have not been suspended or disqualified by Social Security.

I also suggest that a provision be added to forbid professional representatives from serving as institutional representative payees. There have been a number of criminal cases arising from what this proposal would call professional representatives serving as institutional representative payees. These two roles do not seem to mix well. It would be best to forbid this combination.

You may comment on this proposal online and I encourage you to do so. This proposal has many implications. There should be many comments.

COLA Draws Attention

I find it amusing that this blog is getting a large number of hits from people searching for "Cost of Living Adjustment" or "COLA." Social Security recipients are very interested in what the COLA will be for this year.

If I knew, I would tell you. I can say that inflation has been relatively high this year, so the COLA should be relatively high as well, probably about 6%. Keep checking back.

Once the COLA figure is released, it will be posted here promptly. Last year, the COLA numbers were released on October 25.