A Question And An Opinion

Is it appropriate for a Commissioner of Social Security to change the agency's basic interpretation of a statute without any intervening change in the statute? I was under the impression that members of the Federalist Society such as Michael Astrue opposed reinterpreting even the Constitution which is over 200 years old. Of course, there is the recent example of Citizens United v. FEC where other members of the Federalist Society were quite happy to reinterpret the Constitution when it suited the interests of their political party.

My opinion is that if a Commissioner does not like the settled interpretation of a statute that he inherits that he should go to Congress and ask them to change the statute instead of threatening to unilaterally change that interpretation.

Commissioner Says Ohio Shoots Itself In Foot

From the Cleveland Plain Dealer:

Commissioner of Social Security Michael Astrue said Ohio is losing millions of dollars and contributing to the backlog of disability cases by furloughing state workers paid with federal funds.

Astrue, who met with The Plain Dealer editorial board Thursday, also said the furlough of workers who process disability requests will delay 14,600 claims and postpone almost $3 million in federal benefits to Ohio residents.

According to Asture, Ohio will lose $6.9 million in federal money by imposing a 20-day furlough to each of the 627 employees of the Ohio Bureau of Disability Determination over two years. The furlough began last summer.

Policy Change On Substance Abuse Coming?

From a Request for Comments to be published in the Federal Register tomorrow:

We are requesting your comments about our operating procedures for determining disability for persons whose drug addiction or alcoholism (DAA) may be a contributing factor material to our determination of disability. ...

To provide guidance on how we interpret the DAA provisions of the Act, we issued instructions to our employees in an Emergency Message on August 30, 1996. ...

We are asking for your comments on the procedures we follow when evaluating DAA. In particular, we would like your opinion about what, if any, changes you think we should make to our instructions. For example, do you have any suggestions about:

• What evidence we should consider to be medical evidence of DAA?
• How we should evaluate claims of people who have a combination of DAA and at least one other physical impairment?
• How we should evaluate the claims of people who have a combination of DAA and at least one other mental impairment?
• Whether we should include using cigarettes and other tobacco products in our instructions?
• How long a period of abstinence or nonuse we should consider to determine whether DAA is material to our determination of disability?
• Whether there is any special guidance we can provide for people with DAA who are homeless?

Social Security's position has been that if it is impossible to separate the effects of DAA from the effects of other psychiatric illness that the combined effect of both may be considered disabling. This situation is frequently present in individuals suffering from bipolar disorder, a psychiatric illness which has a high degree of association with DAA. A change in this policy would be of considerable importance.

Social Security has never previously asserted or even suggested officially that tobacco use could be considered DAA.

The talk of whether a period of abstinence should be required before a person could be found disabled is worrisome. The statute does not forbid disability payments to alcoholics and drug addicts. It merely prohibits consideration of alcoholism and drug addiction in determining disability. A person may have a raging substance abuse disorder but be found disabled due to other health problems. This has always bothered some people. They find drug abuse and alcoholism so loathsome that they believe that no one alcoholics or drug addicts should be on Social Security disability benefits even though the statute says otherwise. One interpretation of this notice is that Social Security has a desire to move towards forbidding benefits to anyone with a substance abuse problem.

Electronic Medical Records And Social Security

The Specialized Advisory and Assistance Service (SAAS) of the Social Security Administration has prepared a report on Social Security's trial use of an automated electronic records retrieval system to obtain medical records on Social Security disability claimants in Virginia. I had not previously heard of SAAS. Can anyone enlighten me on them?

The report was not released by Social Security but by MedVirginia, the Health Information Exchange, or HIE, that Social Security is working with. MedVirginia's press release has the title "Social Security Administration Study: $2 Million Return from HIE." The $2 million return that MedVirginia is talking about is not for Social Security but for Virginia hospitals which tells you where MedVirginia is coming from.

The executive summary for the report is the worst that I have ever read. It is far too long and far too wordy. My eyes glazed over as I read sentences such as, "The overarching technical success was the transmission of semantically interoperable live health information via the NHIN." Why do academics write so poorly? Is that a requirement to get a Ph.D.?

Hidden away in the report is the fact that the "mean case processing time" for the cases transmitted across the HIE was 59 days while the comparable state average was approximately 84 days. I am not sure what this number represents since the report also states that only "anecdotal evidence suggests that some disability determination decisions may have been made faster with this electronic process." Fifty-nine days as opposed to 84 days sounds like more than anecdotal evidence. Maybe the 59 days number does not mean as much as it seems to mean.

One intriguing tidbit from the report is that some of the development for the project was outsourced to Dubai creating time zone problems for all involved.

I have to wonder after reading this report what SAAS is and why was a private contractor releasing this report instead of Social Security? Also, why would the contractor be so crass as to tout the profit potential of HIE for health care providers in this sort of press release? That is serious tone deafness.

Bad News

The President has decided to seek a three year freeze on domestic discretionary spending. The freeze would allow increases in spending only to match increases in the cost of living. This freeze includes the Social Security Administration's operating budget. This is potentially devastating for Social Security. The agency was dramatically underfunded during the Bush Administration and now faces rapidly increasing workloads due to the aging of the baby boom population.

Update: I am getting messages from people telling me in effect "What's the problem? The President is exempting Social Security." Sure, he is exempting Social Security benefit payments. Unfortunately, there is no sign that the President is exempting Social Security's operating budget from this planned budget freeze. The operating budget is a separate matter from the benefit payments.

And We Thought Backlogs Were Bad At Social Security

At the Department of Veteran's Affairs Regional Office in Roanoke, VA, the stacks of backlogged case files are so big that they threaten the structural integrity of the building!

Understaffing Social Security Makes Sense If You Start With This Premise

From CNS News:

The Social Security Administration (SSA) spent $30 million in stimulus money in 2009 to hire 585 new bureaucrats who will be responsible for certifying whether people are eligible for disability so they can be paid by the taxpayers not to work.' ...

Sandra Fabry, director for the Center for Fiscal Accountability at Americans for Tax Reform, called SSA’s use of stimulus funds for ODAR a “bad deal for taxpayers on both ends.”

“You’re paying money on the front end to make these hires and are obligating taxpayers at the same time to pay millions and millions more on the recipients’ side,” she said.

Bottom line, Fabry said, the move by SSA grows the scope of government in both spending and “dependency.” ...

Fabry acknowledged the claims back-log, but questioned whether or not this is a good use of taxpayer dollars ...

Glad It Worked Out For Him

From the Independent Mail of Anderson, SC (emphasis added):

When Freddie Jordan could no longer feel his hands or his feet, which prevented him from working as a pipe fitter, he was nervous.

For 15 years, he worked with Stover Mechanical as a pipe fitter, and he’d only missed three days of work. Surely, he said, that would count for something when he discovered he could no longer work because of the neuropathy in his hands and his feet. At 57 — just five years short of retirement — he knew he was going to need to apply for disability benefits.

“I was scared,” said Jordan, a Honea Path resident. “The insurance company told me that I was going to need an attorney. And I had heard that some folks had to wait two or three years for their benefits. I didn’t want to lose my land and my truck.”

His fears were eased, he said, when he called the Social Security Administration office in Anderson.

First, they told him he didn’t need a lawyer. Save that money, they said.

“They told me to just tell the truth, and I’d be OK,” Jordan said.

His wait was three months, not three years. Now, for two months, Jordan has been receiving his benefits.