Issues With ALJ Docket Regs

On February 24 Social Security sent over to the Office of Management and Budget (OMB) a package of final regulations to "amend our rules to clarify that the agency is responsible for setting the time and place for a hearing before an administrative law judge." This proposal had originally been published in the Federal Register on November 10, 2008, shortly after the last Presidential election. This proposal has been controversial, particularly among Administrative Law Judges, since it would threaten to remove any control that ALJs have over their dockets. OMB approval is necessary before these regulations can be published in the Federal Register. OMB is part of the White House. Ordinarily, OMB is required to act on regulatory proposals within 90 days. It has now been more than 90 days but there has been no OMB action. The OMB website now notes "**REVIEW EXTENDED" for this item. This is uncommon. OMB can negotiate changes with an agency, send a proposal back to an agency for further review or simply refuse to accept an agency's proposal. Thus far, the Obama Administration has not flatly refused to accept any regulatory proposal and has sent only one regulatory proposal back to an agency for further review. There have been many negotiated changes in regulations, however.

We cannot know exactly what is going on with this proposal but there is clearly some back and forth between the White House and Social Security.

One Overpayment In New Jersey

From the Newark Star-Ledger:

Angelina Maria Colabella doesn’t have to pay.

Earlier this month, Colabella, who receives Social Security disability benefits, received a letter from Social Security. It said through the years, the agency had overpaid Colabella nearly $59,000 and she had 30 days to pay it back.

Colabella had her meeting with the agency and it reviewed her case.

"Social Security reversed its decision in my favor," Colabella said. "I’m just thrilled. I don’t have to worry anymore." ...

"There was a string of times she went over one month or more, but by averaging the year she was under," said Bill Hayden, an attorney with the Community Health Law Project, who represented Colabella at the SSA meeting. "It never should have gotten that far." ...

Hayden said mistakes like this are not uncommon in his experience. He said there is a delay before Social Security receives a beneficiary’s earnings records, but usually only a year or two.

‘‘For this, someone went back 10 years to retroactively do it," he said.

No COLA This Year -- Again?

The signs are that there will be no Cost of Living Adjustment (COLA) in Social Security benefits this year, for the second year in a row.

Social Security "Death Panel"?

From the Neiman Watchdog blog:

President Obama and the leadership in Congress have delegated enormous, unaccountable authority to 18 unrepresentative, inordinately wealthy individuals. The 18 individuals are meeting regularly, in secret, behind closed doors, until safely beyond this year’s mid-term election. If they reach agreement, their proposal will be voted on in December by a lame duck Congress, without the benefit of open hearings and deliberations in the pertinent committees and without the opportunity for open debate and amendment on the floors of the House and Senate. ...

They are the members of President Obama’s newly-formed National Commission on Fiscal Responsibility and Reform. ...

“Everything is on the table,” they say, but the members appointed by the minority leaders in the House and Senate have made clear that they do not believe that the problems in this country stem from under-taxing, rather from overspending. ...

The co-chairs, in particular, seem to have a clear agenda. Even before the commission held its first meeting, Erskine Bowles went on record before the North Carolina Bankers' Association saying that if the Commission doesn't "mess with Medicare, Medicaid and Social Security ... America is going to be a second-rate power" in his lifetime. (And he is already 64!) Alan Simpson, known for giving ugly voice to harsh, ageist stereotypes, described the future of the fiscal commission: "It'll be a bloodbath. Let me tell you, everything that Bush and Clinton or Obama have suggested with regard to Social Security doesn't affect anyone over 60, and who are the people howling and bitching the most? The people over 60. This makes no sense. You've got to scrub out [of] the equation the AARP, the Committee for the Preservation of Social Security and Medicare, the Gray Panthers, the Pink Panther, the whatever. Those people are lying... [They] don't care a whit about their grandchildren...not a whit." ...

We write to raise questions and encourage press inquiry now, before the commission reports, at which point its recommendations could be on track and moving fast. Here are a few angles to explore: ...

Q. Why is the Commission apparently working so closely with billionaire Peter G. Peterson, who served in the Nixon administration and who has a clear ideological agenda?

Q. Mr. Peterson has been on a decades-long crusade against Social Security. The day after the first meeting of the commission, which focused heavily on the need to cut Social Security, the co-chairs and two other members of the commission participated in a Peterson event that reinforced the same message. A Peterson-funded foundation is supplying commission staff. ...

Q. Why the urgent focus on Social Security? In the past, Social Security has always been considered under the normal legislative process, with the opportunity for full amendments. According to the program’s actuaries, it is able to pay all benefits in full and on time for over a quarter of a century. Even its most diehard critics, who try mightily to convince the rest of us that the program is in crisis, can’t mount an argument that there is a problem for another five years or so. So what is the rush? What is the need for such an unaccountable, fast-tracked process when one has never been needed before? Why, in spite of the evidence that Social Security is working as intended and that there is growing need for the kind of broad and reliable protection provided under the program, is it being singled out by Bowles and Simpson and seemingly by the White House for a major trimming?

Reinstating Social Security Benefits For College Students?

The National Academy of Social Insurance (NASI) has published a study recommending that Social Security benefits be reinstated for the children of retirees and decedents who are in "post-secondary school." Benefits were paid to these students until 1982. Nothing is impossible but the chances of this happening are slim.

"Gotta Be Crazy, On Dog Food"

From WAVE in Louisville:

A local retiree is outraged at the federal government. First, he finds out the government mistakenly overpaid his Social Security benefits for years. Then he had to give back more than $10,000 to settle up. Now, a second government accounting error could cost him thousands more. ...

Last summer, the Social Security Administration told Thurman because of an accounting error, the agency had accidentally paid him too much. For almost five years, Thurman got a disability payment and a full Social Security payment. ...

When it finally caught the mistake, the agency told Thurman he had to give back the overpayment, or his benefits would get cut. So Thurman went down to the social security office in Louisville and agreed to settle up.

"What's it take to pay you people off so I'll be totally clear?" Thurman said he asked the SSA worker. "They said $10,155. I said all right I'll give you your money right now. She said you're going to give it to me? I said yeah."

Thurman received two letters from Social Security showing he paid what he was asked, and that he and the government were square. ...

But just weeks later, Social Security told Thurman they goofed up again, making yet another accounting error. This time, Social Security told Thurman the amount repaid was thousands short of what he really owed. Social Security wanted another $6,758. And once again, the agency threatened to cut Thurman's benefits if he didn't pay.

"I thought these people gotta be crazy, on dog food," Thurman said with a laugh. "Something's wrong with em you know?"

Thurman went back and forth with Social Security for months. He even asked Congressman John Yarmouth's office for help, without any luck. But after we started asking questions, the Social Security Administration looked into Thurman's case and said mistakes were made.

"We have apologized to him," said Patti Patterson, a Social Security Administration spokesperson.

Patterson said SSA is now going back to the beginning to find out exactly how much Thurman was paid, and how much he should have been paid because they still aren't sure.

"It's unfortunate that not only have we not paid him correctly, we have not given him clear information," Patterson said. "And we're going to correct that." ...

Patterson told us mistakes like this do not happen often and said Thurman's case is more complicated than most because of the nature of his disability payment. Patterson said SSA hopes to be finished with its review and have a decision on the case within a week.

Field office employees: Do you think this one qualifies for an "against equity and good conscience" waiver? I suppose it happens but I don't think I've ever seen a field office do a waiver of that sort. And to non-field office employees: This exact problem is uncommon but overpayments due to Social Security errors are not rare and difficulties in computing the amount of an overpayment are routine.

Negative OIG Report On PASS Plans

From a recent report of Social Security's Office of Inspector General (OIG):

The Social Security Act authorizes the exclusion of the income and resources of an individual who has a disability or is blind when the individual needs such income and resources to fulfill an approved PASS [Program for Achieving Self-Support]. The income and/or resources the individual uses to pursue the PASS will not be counted in determining eligibility or payment amount for SSI [Supplemental Security Income], thus potentially allowing for SSI qualification and/or an increase in the recipient’s SSI payment over the amount otherwise payable.

Each PASS must have an occupational goal. The individual should have either a specific work goal or a description of the type of job he or she expects to have at the end of the PASS plan. ...

To perform our review, we identified 2,622 SSI recipients who participated in the PASS program in Calendar Year (CY) 2005. We randomly selected 50 cases from this population for detailed analysis. ...

Of the 50 recipients in our sample, 20 had a completed PASS that did not result in savings to SSA. These 20 recipients received a total of about $243,000 in additional SSI payments because of PASS income exclusions. None of these recipients had earnings after the PASS ended that reduced or suspended their SSI or DI benefits. ...

Of the 50 recipients in our sample, 20 had a completed PASS that resulted in savings to SSA. These 20 recipients received a total of about $307,000 in additional SSI payments because of PASS income exclusions. All 20 recipients worked after the PASS ended, and their work caused benefit reductions or suspensions that resulted in about $221,000 in savings to SSA from the date the PASS ended until October 2009. Additionally, in 9 of these 20 cases, savings are ongoing because the recipients’ benefits are currently suspended or reduced due to wages. ...

We found that the PASS program provided assistance to some recipients who wanted to return to work. Based on our review, we estimate that about 1,050 (of about 2,100) recipients who had a PASS in CY 2005, completed it and were able to move further toward independence. However, we also found that the program costs outweighed the savings. We estimate that SSA paid approximately $28.8 million in additional SSI payments because of PASS income exclusions, but only $11.6 million was saved as a result of the recipients earning enough through their work to result in a reduction or suspension of benefits.

Therefore, we recommend SSA reinforce to its PASS cadres that PASSes should be for feasible and realistic goals that are expected to increase (a) the recipient’s prospect for self-support and (b) the likelihood of savings to SSA’s programs.

Texas Board Of Education Adopts Curriculum Requiring Discussion Of "Long Term Entitlements"

On Friday, the Texas Board of Education adopted Social Studies standards requiring that teachers discuss "alternatives regarding long term entitlements such as Social Security and Medicare, given the decreasing worker to retiree ratio."

Actually, this is one of the saner items in the new Texas Social Studies curriculum. The problem is that not one teacher in one hundred could intelligently lead such a discussion, about Social Security not because the topic is all that complicated, but because most of what most people, including teachers, think they know about Social Security is not true. I have no doubt that every one of the Board members who voted for this have an ardent belief that Social Security is doomed in the long run and that the only hope is to begin a transition to a privatized Social Security system, a belief that is rubbish. There are fairly simple solutions for Social Security's funding problems. Any sort of transition to privatization makes the problem much worse.

And don't even think about trying to have an intelligent discussion of Medicare. Medicare really is complicated!