Fee Cap Legislation Introduced

Representative John Lewis of Georgia has introduced H.R. 7285 on Social Security attorney fees. Here is the relevant language of the bill:

(a) In General- Section 206(a)(2)(A) of the Social Security Act (42 U.S.C. 406(a)(2)(A)) is amended--

(1) in clause (ii)(II), by striking `$4,000' and inserting `$6,264.50'; and

(2) in the matter following clause (iii), by striking `The Commissioner of Social Security may' and all that follows through `such date.' and inserting the following: `The Commissioner of Social Security shall adjust annually (after 2008) the dollar amount set forth in subclause (II) of clause (ii) under procedures providing for adjustments in the same manner and to the same extent as adjustments are provided for under section 215(I)(2)(A), except that any amount so adjusted that is not a multiple of $0.10 shall be rounded to the nearest multiple of $0.10.'.

(b) Effective Date- The amendments made by this section shall apply with respect to fees to be recovered to compensate for services with respect to claims of entitlement to past-due benefits presented to the Commissioner of Social Security on or after the date of the enactment of this Act.

It is way too late for action on the bill in this Congress, but Representative Lewis will presumably reintroduce the bill in the next Congress, which convenes on January 3.

Update: By the way, is Lewis' sponsorship of this bill a sign that he is interested in becoming the new Chairman of the Social Security Subcommittee? Lewis has been the Chairman of the Ways and Means Oversight Subcommittee.

Social Security Subcommittee Chair To Become Lobbyist

Jim McCrery, who has been the Chairman of the House Ways and Means Subcommittee on Social Security, is leaving Congress at the end of this year. He will become a lobbyist with Capitol Counsel.

New Ways And Means Committee Members

The following representatives have been newly added to the powerful House Ways and Means Committee, which has jurisdiction over Social Security:

• Danny Davis (D-IL)
• Bob Etheridge (D-NC)
• Raúl Grijalva (D-AZ)
• Brian Higgins (D-NY)
• John Yarmuth (D-KY)

Higgins has been especially active in promoting the rights of Social Security disability claimants and would be a wonderful addition to the Social Security Subcommittee.

I have not heard yet about Subcommittee assignments or Subcommittee Chairmanships.

Social Security Offices To Be Closed On December 26

Normally, federal employees get only one day off at Christmas. This year, by order of President Bush, they will get off both the 25th and 26th. Why did he wait until now to make the announcement?

Does ADA Apply To LTD?

From the Employer Law Report:

The Sixth Circuit weighed in on an issue that has split the federal courts and has joined the Seventh and Ninth Circuits in holding that disabled former employees lack standing to sue under Title I of the Americans with Disabilities Act. McKnight v. Gen. Motors Corp., No. 07-1479 (6th Cir., Dec. 4, 2008). The Court found that three General Motors Corp. retirees lacked standing under the ADA to challenge the reduction of their pension benefits when they started receiving Social Security disability benefits. ...

In contrast, the Second and Third Circuits have held that former employees who are totally disabled can be considered “qualified individuals” with standing to file suit under Title I. Unlike the Sixth, Seventh and Ninth Circuits, the Second and Third Circuits found that Title I is ambiguous with respect to the definition of a “qualified individual with a disability” and therefore concluded that a broader interpretation, including disabled former employees, was consistent with the purposes of the statute.

This issue may be headed to the Supreme Court. I do not think this issue was addressed in the recent ADA Restoration Act.

Benefit Offset Demonstration To End

The Social Security Administration published a notice in the Federal Register today that the Benefit Offset Pilot Demonstration will end.

Here is a description of the pilot:

On August 1, 2005, we began a pilot demonstration testing the effects of applying a benefit offset as an alternative to the current rules for treating the work activity of a title II disability beneficiary who has completed a 9-month trial work period. Under the benefit offset in this demonstration project, we reduce disability benefits $1 for every $2 a beneficiary earns above the SGA threshold amount instead of stopping benefit payments.

The pilot program is ending because "the process we developed for administering the benefit offset under the BOPD [Benefit Offset Demonstration Pilot] proved to be inefficient and administratively burdensome," but Social Security says that " ... we are developing a system to provide an efficient method for administering a benefit offset provision under the national demonstration project."

A lot of people have had a lot of hope for this benefit offset demonstration. Maybe Social Security can still make it fly, but this notice cannot be a good sign. Of course, the real problem may be that the Social Security Act makes it so difficult to get on disability benefits that few disability benefits recipients have any real capacity to return to work no matter what incentives they are given.

Astrue Interview

Michael Astrue, Commissioner of Social Security, gave a lengthy interview to the Business Of Government Hour, a service of the IBM Center for the Business of Government, on December 6. I assume this is a non-profit. The interview is available online.

I found the interviewers' frequent reference to the Commissioner by his first name to be surprising and inappropriate. It is not like being a high government official pays that well. At least you ought to be addressed by your title.

Here are a few highlights of what he said:

• Astrue described the Commissioner of Social Security as reporting directly to the President of the United States.
• "I'm staying" in the new Administration.
• Social Security has not had a true strategic plan in the past, but the agency now has a "terrific" strategic plan.
• "We need to make sure our employee base does not keep shrinking."
• "We give the highest priority to the oldest [disability] cases." In the past, for political reasons, it was otherwise.
• Astrue feels it is important for Social Security to encourage retirement saving.
• Some simplification of the SSI program would help Social Security in achieving accuracy in administering the program.
• Social Security now has a notice improvement office.
• Social Security is reaching out effectively to military veterans.
• He wants the National Institutes for Health to run clinical trials on biomarkers to test for disability for various impairments.
• Social Security is providing technical advice for the Department of Veterans Affairs
• Patty Duke will be an unpaid celebrity spokesperson for Social Security. She is 62. She is also a spokesperson for those suffering from bipolar disorder. [Does she know how badly Social Security treats those suffering from bipolar disorder who apply for Social Security disability benefits?]
  

Update: When I originally listened to this, there was a problem with the last segment of the interview. I e-mailed the IBM Center and they e-mailed me the last segment. I thought they must have corrected it on the website, but I should have checked. They have not yet done so. E-mail them and I am sure they will send you a copy.

No One Asked To Resign At Social Security

A December 1 memorandum from the Chief of Staff to President Bush to all cabinet and executive agency heads:

To provide the President-elect maximum flexibility in assembling his Administration, and consistent with past practice, President Bush is requesting letters of resignation from all non-career appointees except Inspectors General and those individuals who hold termed positions.

Please transmit the attached "Memorandum for Non-Termed Presidential Appointees" to each non-termed Presidential Appointee in your organization.

Please also collect letters of resignation from non-career SES and Schedule C appointees. These letters should be addressed to you and should indicate an anticipated departure date of no later than noon, January 20, 2009. A sample letter is attached.

Non-career SES and Schedule C appointees at independent and regulatory agencies headed by termed appointees are not being asked to submit letters of resignation at this time.

Once he becomes President, Barack Obama can fire Social Security's Inspector, General Patrick P. O'Carroll, Jr. As a general matter, I would expect a new President to replace the Inspector Generals at all agencies.

Obama will also be able to fill the vacant positions of Deputy Commissioner of Social Security and Chair of the Social Security Advisory Board.

I am unclear on whether the new President will have the ability to fire Senior Executive Service (SES) and Schedule C personnel at Social Security. Even if he does have the ability, I have to guess that he would not exercise the authority as long as Commissioner Astrue cooperates with the Obama White House as well as he has cooperated with the Bush White House.