Proposed Rules On Protective Filing

Social Security will have a Notice of Proposed Rule-Making (NPRM) in the Federal Register tomorrow on protective filing dates. Here is Social Security's summary:

We propose to revise our rules for protective filing after we receive a written statement of intent to claim Social Security benefits under title II of the Social Security Act (the Act). Specifically, we propose to revise from 6 months to 60 days the time period during which you must file an application for benefits after the date of a notice we send explaining the need to file an application. We are proposing this revision to make the time period used in the title II program consistent with the time period used in other programs we administer under the Act. We believe that eliminating the difference between the time periods in the programs we administer would make it easier for the public to understand and follow our rules.

Would it not work just as well to revise the SSI rules to provide for a six month period there? It seems that the intent is to save a modest amount of money.

Update: This has now been published in the Federal Register.

Could Social Security Take Over Some Functions From Railroad Retirement?

The New York Times has been reporting on troubles at the Railroad Retirement Board, (RRB) which, unlike Social Security, has been approving a very high percentage of disability claims. Today's New York Times article on the situation reports that the Inspector General At RRB has been proposing that the Social Security Administration assume some of RRB's duties.

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.