Social Security Disability Changes Coming In Britain

From Touch Stone, a blog written by members of the staff of Britain's Trades Union Congress:

One of the quietest announcements in the Budget Reports relates to Disability Living Allowance : “the government will introduce the use of objective medical assessments for all DLA claimants from 2013-14 to ensure payments are only made for as long as claimants need them.”

The Chancellor was rather more open in his speech, where he put this proposal in the context of concerns that “the costs have quadrupled in real terms to over £11 billion, making it one of the largest items of government spending.”The Chancellor made it clear that existing claimants will have to be re-tested to keep their benefit, and the context makes it plain that claimants can expect the new test to make sure that many of them will cease to qualify. In an attempt to justify this, Mr. Osborne spoke of the need to “continue to afford paying this important benefit to those with the greatest needs, while significantly improving incentives to work for others.” ...

The government has a short memory. In 1997, the new Labour government inherited a similar initiative, the Benefits Integrity Project, which aimed to re-assess thousands of disabled people’s benefit entitlement. As news spread that disabled people were being forced into abject poverty and some were considering suicide, the government discovered that cutting benefits can quickly become very unpopular. The Daily Mail and its Sunday sister were particularly critical, and disabled demonstrators chained their wheelchairs to the gates of Parliament.

Does any of this sound a bit familiar to Americans?

By the way, no one seems to know exactly what the British government is planning.

Is The Social Security Administration Unconstitutional?

Take a look at Tom Shoop's post on Fedblog concerning today's Supreme Court decision in Free Enterprise Fund v. Public Company Accounting Oversight Board. Shoop writes that the Court held:

... that the way the Public Company Accounting Oversight Board was set up under the 2002 Sarbanes-Oxley Act violates the Constitution. Members of the board get two layers of protection: They can only be removed by the Securities and Exchange Commission for cause, and the SEC's members can only be removed by the president for cause. The court's majority ruled that at least in the case of the board, that's one layer of protection too many.

In a dissenting opinion, Justice Stephen Breyer raises an interesting issue: What about the dozens of independent federal agencies who are headed by officials who have some degree of statutory protection from arbitrary removal? If they are, in turn, administered on a day-to-day basis by executives who also get protection from removal under civil service laws, doesn't that violate the two-layers principle?

Justice Breyer's dissent includes a list of 48 agencies that may be affected by the majority opinion in Free Enterprise Fund. Social Security is not on Justice Breyer's list but this appears to be an oversight since Social Security qualifies for the list under the criteria given by Justice Breyer based upon the facts that Social Security has independence in submitting budgetary requests to Congress and Social Security is designated as "indepedent" by statute. Following Justice Breyer's logic, the existence of Senior Executive Service and Administrative Law Judge (ALJ) positions at Social Security makes the agency's setup unconstitutional. Indeed, the existence of any civil service position at Social Security could make the agency's setup unconstitutional.

Remember, this was a dissenting opinion. Justice Breyer was not explaining the majority opinion but giving reasons why he believes the majority opinion is unwise.

Update: Breyer does include Social Security in a list in one of the appendices to his dissent as a possibly affected agency. He specifically mentions Social Security as a possibly affected agency in the body of his dissent at pages 68 and 70 of the PDF.

Social Security would be, by far, the biggest agency possibly affected by this.

Note that there are plenty of people out there who want to litigate the constitutionality of Social Security even though precedent is solidly against them. This decision has nothing to do with the constitutionality of Social Security itself, just the way in which the Social Security Administration is set up to administer Social Security, but that will not stop the litigation. Standing may stop most of the litigation, however.

The majority opinion is a huge win for the "unitary executive" theory espoused by John Yoo and others. I thought that the excesses of the Bush Administration had seriously eroded whatever support there was for this theory but not in the eyes of five members of the Supreme Court.

Further update: I think the only reasonable reading of this opinion is that any statute that would prevent Commissioner Astrue from removing any ALJ or SES employee from his or her position is unconstitutional. This may apply to ANY Social Security employee. Commissioner Astrue may be constrained by union contracts but not by a statute. As the most important Republican holdover in a Democratic Administration and as someone who has publicly expressed frustration over his inability to discipline ALJs, Commissioner Astrue is in a delicate position. Aggressive action on his part could cause him to lose his job as his agency is absorbed back into the Department of Health and Human Services or becomes a cabinet level department.

Elena Kagan's nomination hearing and the gun decision today are getting most of the attention but the Free Enterprise decision may be today's most important judicial development.

Left Out Of Health Care Reform

From The Oregonian:

Sue Sherman of Southwest Portland lived a peaceful, healthy life until she was dealt an ugly card last year: a diagnosis of pancreatic cancer. ...

She joined nearly 2 million disabled Americans -- at least 15,000 in Oregon -- who fall into a twilight with the first monthly Social Security disability payment, for they then must wait two years to become eligible for Medicare. ...

This year, nearly 8 million Americans are receiving Social Security disability income. About a quarter, 1.8 million, are in the 24-month waiting period. ...

[T]he Congressional Budget Office, which estimates the cost of legislation to the taxpayer, calculated that eliminating the wait would cost an average of $10 billion a year over 10 years. ...

A private 2003 study found that nearly 25 percent of the disabled in the waiting period go the two years without any insurance.

It Happens

From KARE-TV in Minneapolis:

For more than 2 decades, Alyssa Green of Minneapolis has lived her own, independent life. But when she applied for a student loan for college a few years ago, she learned a troubling fact. Another Alyssa Green, with the same birth date, had the exact same social security number. This Alyssa Green lives in Albany, New York....

"Unfortunately mistakes do happen but it is also the social security administration that can correct that for her," Elizabeth Wertime of the Social Security Administration told Albany reporter Beth Wurtmann.

Stats By State

Social Security has released a set of statistics about its programs broken down by state.

New Hearing Office In Florida

The Bradenton Herald reports that Social Security is opening a new hearing office today in St. Petersburg, FL. There is already a hearing office in Tampa.

Colvin Nomination Remains Stalled

Carolyn Colvin was nominated to become Deputy Commissioner of Social Security on October 1, 2010. There has been no action in the Senate of the nomination. Undoubtedly, some Senator has placed a secret hold on the nomination. Why? Has she offended someone? Could it be payback for Democrats not confirming Andrew Biggs when he was nominated by George W. Bush? Could it be that Republicans think that one of their own, Michael Astrue, will have a stronger hand as head of Social Security without a Democrat as his deputy? Who knows? I do know that the confirmation delays in the Senate are out of hand. It is past time for the President to give Ms. Colvin a recess appointment.

I Still Don't Understand

From the Metrowest Daily News:

The potential loss of more than $600 million in federal aid once deemed a sure thing has had Massachusetts Democrats scrambling to rebuild the state budget behind closed doors, warning publicly of layoffs and steep program cuts if the funds fall through. ...

According to Patrick administration officials, the federal government owes Massachusetts $160 million in Social Security payments that Massachusetts had erroneously made for the last 35 years. The federal government has acknowledged the error, prompting state officials to include the $160 million in spending plans for the fiscal year that begins July 1. ...

At issue is the way the Social Security Administration handles disability claims.

[State] Health and Human Services Secretary JudyAnn Bigby told the News Service at the time that the federal agency often declines applications for disability payouts on an applicant's first attempt. However, if an applicant appeals the rejection, the state then covers health care costs for that person until the matter is resolved. If the applicant is ultimately approved, the SSA is supposed to reimburse the state for that interim coverage.

Bigby said 30 other states are expected to be in line for Social Security reimbursements.

I posted an item from the Boston Herald about this last November. I still do not understand what their theory is or why they were so confident that Social Security was going to write them a huge check. It seems to me that it would be Health and Human Services rather than Social Security writing the check since it appears to be Medicaid money they want reimbursed. I doubt that the matter is simple. If it was I am sure this would have been caught decades ago.