Class Action Lawsuit On Fugitive Felon Implementation

From the San Mateo County Times:

The letter didn't make any sense, Rosa Martinez said, because she had never been to Miami, had never used illegal drugs and had never been arrested for a crime.

And yet the Social Security Administration informed her the monthly $870 check she depended on would be cut off because there was an outstanding warrant for her arrest on drug charges, issued in 1980 by the Miami-Dade Police Department.

This week, the 52-year-old Redwood City woman became one of two plaintiffs in a class-action lawsuit against Social Security Commissioner Michael Astrue that contends more than 100,000 people have had their benefits unjustly halted by the federal government.

The suit, filed Wednesday in federal court in San Francisco, asks a judge to prohibit the federal agency from stopping any more Social Security payments to people "fleeing to avoid prosecution" for a felony, which makes beneficiaries ineligible under a 1996 law.

Attorneys for Martinez and a second plaintiff, 19-year-old Jimmy Howard of Santa Maria, say the agency has ceased sending benefit checks to people simply because there is an outstanding warrant in their name, without verifying whether the person is fleeing prosecution or is even aware of the warrant. ...

Social Security officials have demanded that Martinez get proof that she is not the person listed in the warrant, but Douglas said Miami-Dade police have destroyed the original warrant and "proving a negative was incredibly difficult."

A letter by the Social Security Administration's Redwood City district advised Martinez: "If you believe the warrant was issued in error, Social Security must have an original document that states the warrant was issued in error and does not pertain to you at all. It must state the date the warrant was rescinded. This is the only way this case can be resolved."

The suit demands that the agency reconsider the eligibility of anyone who gets any of several types of Social Security payments and has been cut off under the "fleeing to avoid prosecution" rule.

AFGE Disgusted With Astrue

A letter from Witold Skwierczynski, president of Council 220 of the American Federation of Government Employees (AFGE), which represents the vast majority of Social Security's workforce:

October 10, 2008

The Honorable Max Baucus, Chairman
Senate Finance Committee
2019 Dirksen Senate Office Building
Washington, DC 20010-6200

Dear Senator Baucus:

I feel compelled to notify you that SSA Commissioner Astrue is refusing to respond to correspondence from AFGE regarding key issues. The most recent example of this lack of responsiveness concerns issues related to the impacts of Hurricanes Gustav and Ike on SSA bargaining unit employees.

Although Commissioner Astrue made a commitment to you during his confirmation hearing to improve communications and work with AFGE, he has not honored this commitment.

The relationship with AFGE and SSA management has continued to erode under his leadership. SSA’s lack of concern for employees affected by Hurricanes Ike and Gustav are perfect examples of the eroded relationship.

As you may be aware, I have sent letters to Commissioner Astrue, requesting him to take immediate action to:

• Prevent the communications problems and employee hardships that resulted after Hurricane Katrina; and
• Insure employees would be afforded the benefits and provisions approved by OPM; and Inform employees as soon as possible so that they may make informed choices for themselves and their families; and
• Keep AFGE’s SSA General Committee informed of all events surrounding the affect of the hurricanes on SSA bargaining unit employees.
• Treat employees consistently and equitably from one region and component to another.

SSA Regional and Central Office Labor Management Relations staff informed the AFGE officials which offices were closed, after SSA employees were notified. The same staff confirmed that decisions regarding Administrative Leave for affected employees and the emergency provisions approved by OPM can only be authorized by Commissioner Astrue Tuesday during a meeting, Commissioner Astrue had his Labor Relations staff inform AFGE of the Commissioner’s decision not to implement OPM disaster guidelines. AFGE asked for an explanation or basis for his decision. However, the Labor Relations staff was unwilling to enlighten the Union. To date, neither the Commissioner nor his staff has submitted a written response to my initial letter of September 2, 2008 which was written during an emergency situation.

On September 25, 2008, Commissioner Astrue released a broadcast to all SSA employees with an update about Hurricane Ike and Gustav. In this broadcast he acknowledges that “our own employees who live and work in the areas touched by the hurricanes who have lost everything.” He goes on to encourage employees to donate to a hurricane relief fund, and that federal employees affected by the hurricanes may apply for relief funding.

This is unacceptable and insulting. As in the aftermath of Hurricane Katrina, SSA has provided exemplary service for the public following Hurricanes Ike and Gustav. SSA’s employees deserve the same exemplary treatment from their employer. There is absolutely no reason for SSA to deny travel and per diem benefits to employees as recommended by OPM. There is also no reason to deny administrative leave benefits to employees who can’t work because they were evacuated from a hurricane site or due to the fact that their homes were damaged and became uninhabitable. AFGE is aware that other Federal Agencies have provided their employees with such benefits.

Therefore Senator Baucus, we ask that you urge Commissioner Astrue to take the following immediate actions:

• Communicate with the AFGE General Committee regarding office closures, office reopenings, damaged offices, and Agency employee benefit decisions.
• Keep all evacuated employees on administrative leave until they are able to return to work at their duty stations.
• Provide evacuated employees with full travel and per diem benefits for themselves and their dependents for the duration of their absence in accordance with OPM guidelines.
• Provide travel and subsistence payments to employees whose homes have been made uninhabitable by the hurricane until the homes are habitable in accordance with OPM guidelines and 5 CFR 550.405.
• SSA will not require or allow employees to work in unsafe and unhealthy environments.
• SSA will not permit employees to work with damaged and/or contaminated files.
• SSA will inform employees of their rights regarding pay, travel and per diem, etc. quickly so that they can make informed choices (e.g., utilizing travel and per diem benefits instead of staying with friends and relatives).
• SSA will assist employees to interact with other Agencies to obtain any benefits that they may be entitled to access. (e.g., FEMA)
• SSA will provide administrative leave fairly and equitably for employees after they return to work to deal with disaster related issues (e.g., insurance, household repairs)
• SSA will only reopen offices after an assessment is made by competent inspectors that the facilities are healthy and safe and that they are equipped with adequate power and water.

On behalf of the hundreds of affected SSA employees and AFGE, I want to thank you in advance for your time and attention to this matter.

Sincerely,

Witold Skwierczynski

This letter can be viewed in a number of ways depending upon one's political views and views on labor unions, but let me first try to talk about it in practical political terms. The AFGE is a major constituency in the Democratic party. If Barack Obama is elected President along with a larger Democratic majority in Congress and Michael Astrue tries to stay on as Commissioner of Social Security, the AFGE will demand, at the least, that Astrue be forced to change his ways.

And, by the way, I think it is entirely accurate to say that Astrue made committments during the confirmation process about the way he would treat employee unions that he has not kept.

Anthrax Scare In Bloomington

The Pantagraph of Bloomington, Illinois reports that the local Social Security office was shut down on Friday due to the discovery of a powdery substance in a rest room. The story turns out to be farce, since the substance not only was not dangerous, but may have been curry powder!

Fascinating Responses

The two responses, so far, to my post of Social Security's press release on Michael Astrue's speech at the conference of the National Organization of Social Security claimants representatives -- the one where he claimed that the backlog situation is getting better and I commented that this claim seems to square poorly with the backlog numbers that Social Security has released -- are fascinating. Take a look at them.

The Last Time ...

The last time that the order of succession at Social Security was changed was April 17, 2006, which was before a change of Commissioner, but the change did not come until nine months later when Jo Anne Barnhart's term as Commissioner of Social Security ended. It seems unlikely that those two events were linked.

Make Of This What You Will

From the White House:

For Immediate Release
Office of the Press Secretary
October 17, 2008

Memorandum for the Commissioner of Social Security
SUBJECT: Designation of Officers of the Social Security Administration to Act as the Commissioner of Social Security

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., it is hereby ordered that:

Section 1. Order of Succession. Subject to the provisions of section 2 of this memorandum, the following officials of the Social Security Administration, in the order listed, shall act as and perform the functions and duties of the office of the Commissioner of Social Security (Commissioner), during any period in which both the Commissioner and Deputy Commissioner have died, resigned, or become otherwise unable to perform the functions and duties of the office of the Commissioner, until such time as the Commissioner or Deputy Commissioner are able to perform the duties of that office:

(a) Chief of Staff;

(b) Deputy Commissioner for Operations;

(c) Deputy Commissioner for Budget, Finance and Management;

(d) Deputy Commissioner for Systems;

(e) Deputy Commissioner for Quality Performance;

(f) Regional Commissioner, Atlanta; and

(g) Regional Commissioner, Dallas.

Sec. 2. Exceptions. (a) No individual who is serving in an office listed in section 1 in an acting capacity, by virtue of so serving, shall act as Commissioner pursuant to this memorandum.

(b) No individual listed in section 1 shall act as Commissioner unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998.

(c) Notwithstanding the provisions of this memorandum, the President retains the discretion, to the extent permitted by law, to depart from this memorandum in designating an acting Commissioner.

Sec. 3. This memorandum supersedes the President's Memorandum of April 17, 2006 (Designation of Officers of the Social Security Administration).

Sec. 4. This memorandum is intended to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

Sec. 5. You are authorized and directed to publish this memorandum in the Federal Register.

GEORGE W. BUSH

Of course, the next President can modify this any time he wants.

If It Sounds Too Good To Be True ...

Take a look at this website that promises that "You could add up to $1,033 PER MONTH to your Social Security paychecks, thanks to a little-known loophole used by only 230 Americans last year." This is from "Olivia Martin, Sr. Researcher, S&A Investment Research" who "interviewed a West Virginia man who has taken advantage of this situation... a spokesperson at Social Security Administration (SSA) Headquarters outside of Washington, DC... and a Boston University Social Security expert, who has testified before Congress 16 times." The ellipses are in the original. The website goes on to tell us "And remember: All you have to do is ask. The Social Security Administration can't deny you, no matter how long you've been collecting already, or what your age." Eventually, the website leads to an offer of a subscription to "Dr. Steve Sjuggerud's True Wealth Investment Advisory."

The deal is that someone noticed that it is possible to withdraw a claim for retirement benefits and then refile a new claim. Since retirement benefits go up the older you are when you go on benefits, you receive a higher monthly benefit amount on the new claim. Sounds wonderful, doesn't it? Just one little catch. When you withdraw your earlier claim for retirement benefits, you have to pay back all the Social Security retirement benefits you have already received. How many people on Social Security retirement benefits are able and willing to do that? Probably a lot fewer than are foolish enough to pay "Dr. Steve Sjuggerud" for his "True Wealth Investment Advisory."

I have already received a message from a client asking about this. This has the potential to create unnecessary business for Social Security. There may be many people who will be angered when their delusions smash up against harsh reality.

Press Release On Astrue Speech At NOSSCR Conference

A press release from Social Security:

During a speech to the National Organization of Social Security Claimants’ Representatives, Michael J. Astrue, Commissioner of Social Security, reported on the progress made in fiscal year (FY) 2008 in the agency’s efforts to expedite backlogged disability cases.

“The plan we presented to Congress in May 2007 is working,” Commissioner Astrue said. “We have moved quickly to utilize new technologies, improve our business processes and add new staff. Combined with the hard work of our employees and the support of Congress, we are clearly on the right track to providing Americans with disabilities the prompt service they deserve.”

During FY 2008, Social Security hired 190 new Administrative Law Judges (ALJs), opened a National Hearing Center (NHC), eliminated virtually its entire aged case backlog of more than 135,000 cases waiting over 900 days for a hearing decision, and implemented a quick disability determination (QDD) process in all 50 states.

As a result of these and many other activities, the disability backlog at the hearings level, which had been growing at the rate of about 70,000 cases each year for most of this decade, grew by only about 14,000 cases.

“The hiring of 190 additional ALJs was critical but will not yield immediate results,” Commissioner Astrue noted. It generally takes about nine months for new ALJs to become fully productive. With attrition and experienced ALJs being used to train the new judges, the agency actually had 46 fewer ALJs available in FY 2008 than the prior year. Despite this fact, ALJs held more hearings and issued more dispositions than in FY 2007. The agency exceeded its targeted goal by over 16,000 cases.

The opening of the NHC gives Social Security the capability to quickly and flexibly move cases and conduct video hearings in the cities with the worst backlogs. NHC judges initially focused their efforts on the backlogs in Atlanta, Cleveland, and Detroit – cities where claimants had been waiting the longest. Atlanta continues to be a focus for the NHC, along with Flint, MI and Indianapolis. The agency plans to expand the NHC in Falls Church, VA as well as open additional centers in Albuquerque and Chicago. In addition, the agency is working with the General Services Administration to establish new hearing offices in the most backlogged states: Florida, Georgia, Kansas, Michigan and Ohio.

Social Security completed the nationwide roll-out of the QDD process in February 2008 and it has proven to be an unqualified success. QDD cases now represent about three percent of all new claims. This means more than 75,000 people each year will have their cases allowed in about 8 days, something that was unheard of just a year ago. The QDD threshold has now been adjusted for 31 Disability Determination Services (DDS), and the agency plans to gradually increase the volume of QDD cases while maintaining the same level of quality.

Other accomplishments in FY 2008 include:

• More than 2.6 million initial disability claims processed;
• Approximately 560,000 reconsideration cases processed;
• Over 575,000 hearing requests processed;
• Over 83,000 Appeals Council Reviews processed;
• Implemented procedures to allow attorney adjudicators to issue fully-favorable decisions -- over 24,000 decisions issued;
• Implemented a process in which the hearing office returns specific cases to the DDS for review for potential allowance -- to date, DDSs have allowed about 24,000 cases;
• Improved the process to identify and expedite military casualty claims;
• Implemented the Request for Program Consultation process nationally to improve accuracy and consistency in the disability decision-making process; and
• Implemented a process that allows the public and third parties to file disability reconsideration and hearing requests via the Internet.

“The progress we have made is significant, especially since receipts at the hearings level were five percent higher than we expected in FY 2008. While the backlog grew slightly, the rate of increase in pending cases continues to drop,” Commissioner Astrue said.

Looking ahead to FY 2009, Commissioner Astrue hopes the energy and talent of the new ALJs, the national rollout of Compassionate Allowances, and other initiatives will improve the quality of reviews and steadily reduce the number of pending cases starting this spring. However, he stated, “the effects of an extended continuing resolution are clearly slowing our progress. We simply cannot address the challenges we face without adequate and timely funding. Many things we need to do, such as increase support staff and add new hearing offices, will not happen if Congress fails to pass an adequate appropriations bill by March. Social Security is an agency of great skill and accomplishment and we are ready to work with Congress, the new Administration and all of our stakeholders to improve service to the public.”

If Social Security is making progress, why are the backlogs going up?