In A Rare Moment Of Unanimity, Supreme Court Rules Against In Vitro Posthumous Kids

     From the New York Times: "Children conceived with a dead father’s frozen sperm are not entitled to Social Security benefits if they were not eligible to inherit property from him under state law, the Supreme Court ruled unanimously on Monday."

     Note that the children might have qualified had another state's law applied.

     Update: This case may not be over. From a footnote in the opinion:

Because the Third Circuit held that posthumously conceived children qualify for survivors benefits as a matter of federal law, it did not definitively determine “where [Robert] Capato was domiciled at his death or . . . delve into the law of intestacy of that state.” 631 F. 3d, at 632, n. 6. These issues, if preserved, may be considered on remand.

The National Council On Disability Needs To Meet More Disabled People

     I have written recently about the attitudes towards the Social Security disability programs that exist within what I'll call the ADA community, a group of people, many of them in wheelchairs, who are committed to the notion that literally anyone can and should work, regardless of the severity of their disability. They believe that the Americans with Disabilities Act (ADA) changed everything, despite the abundant evidence that it changed almost nothing. The ADA community seems to regard the existence of Social Security disability benefits recipients as a sign of a great failing, by society  They believe that all those recipients should be working and would be working if only something -- they don't know what -- were changed. The ADA community seems to think that every disability is much the same as being in a wheelchair, something that a well-motivated person who has a bit of help should overcome. If you think I'm exaggerating, take a look at these excerpts from an announcement by the National Council on Disability (NCD), an independent federal agency: 

Notice of Funding Opportunity 

NCD-02-12

NCD seeks an individual or entity to undertake a project to analyze the various options for SSDI [Social Security Disability Insurance] and SSI [Supplemental Security Income] reform, including what measures could facilitate people currently receiving SSDI and SSI benefits in being able to work, what measures could decrease the likelihood of needing such benefits, and what financing options exist to extend the life of both programs. ...

Suggested Framework for Research

The National Council on Disability is interested in answering the following questions:

1. What would a fundamental restructuring of the SSI and SSDI system require to align it with the goals of the Americans with Disabilities Act, i.e. eliminate the requirement that an SSDI applicant declare themselves unable to work in order to be eligible for benefits; provide job retention supports to working people with disabilities who are at risk of job loss as a result of their disability; assist people with disabilities who are at risk of job loss because they are not receiving reasonable accommodations.
2. Given the extremely diverse populations served by the SSI and SSDI programs, how might different reform strategies disproportionately impact – either positively or negatively – particular segments of the disability community?
3. Based on the most current evidence-based research, does the Medicaid buy-in opportunity impact work activity?  How should it be modified to promote work opportunities for people with disabilities?
4. To what extent has the Ticket-to-Work initiative been evaluated?  What lessons can be drawn from the challenges the Ticket to Work program has faced in realizing its intended goals?  If sufficient information is available to make a determination, what reforms to the Ticket to Work program are recommended?
5. Did the research reveal any changes to other federal programs that would have a positive impact on the health and effectiveness of the Social Security Programs and work opportunities for SSDI and SSI beneficiaries?
6. Could an incentive mechanism be used to encourage employers to make more efforts to accommodate employees with disabilities and to avoid employees with disabilities going on to SSDI rolls, e.g. an experience rating system whereby employers, whose employees have a lower rate of SSDI retirements, pay lower SSDI payroll taxes?
7. Could an incentive mechanism be developed to encourage states to supplement the SSI program with state funds?
8. Could an incentive mechanism be used to encourage more employers to offer private disability insurance policies that would supplement the SSDI program?
9. Are there other changes to the SSDI or SSI programs that would promote work activity, preserve benefits for those who need them, and secure the fiscal integrity of these programs?

     These proposals come despite the fact that the Congress has again and again fallen for the siren call of the ADA community and stuffed the Social Security disability programs with every imaginable incentive for recipients to return to work, so many incentives that keeping them all straight is a huge challenge. The only thing left is to stop with the incentives and try compulsion -- time limited benefits. That would be an enormous mistake but there is literally nothing left to try if you really believe that all those disability recipients should be put back to work. By this point, the ADA community is a positive menace not only to Social Security disability recipients but to the Social Security Administration and Congress. They are pulling policy making in a potentially calamitous direction.

CDI Unit Active In Utah

     This is from an piece, which mostly concerns allegations of workers compensation fraud, posted by a Utah television station:

People who feign disabilities in Utah can get away with millions of dollars – money you pay into social security and money employers pay to cover accidents on the job. ...
 
Workers compensation is a private insurer that began as a state agency. On the federal level, the Social Security Administration provides disability benefits. 

It has a "Cooperative Disability Investigation Unit" - operating in Salt Lake for roughly a year – which tries to stop fraud before it starts.

In a recent 3 month period, the local CDI unit, as it's called, says it confirmed 42 cases of fraud or "similar fault."

Lack Of Health Care Access A Big Problem For Disability Claimants

     From Improving Access: Expanding Acceptable Medical Sources for the Social Security Administration Disability Determination Process, a report by the National Law Center on Homelessness and Poverty:

Currently, the process for obtaining SSI [Supplemental Security Income] and SSDI [Social Security Disability Insurance] can be cumbersome and, too often, there are unnecessary delays. Allowing nurse practitioners, physician assistants, and licensed clinical social workers to provide diagnostic evidence of certain medical conditions would streamline the process for obtaining benefits, ensuring that eligible individuals gain access to these critical benefits in a timely manner.

For individuals who are homeless, such expansion would have an especially meaningful impact. Currently, many people who are homeless and who are generally uninsured have great difficulty accessing assessment, treatment, and care from physicians and, for mental health problems, psychologists and psychiatrists. Programs and services dedicated to serving homeless people are increasingly overwhelmed by the tremendous need for treatment and services, and many programs cannot meet this rising demand.

     This will only get poor people so far. There's no way you can get around it. Decision-makers aren't going to give as much weight to CNAs, PAs and LCSWs as to MDs.
     I represent a fair number of homeless people. Lack of access to medical care is a huge problem for this population. So many of these people would get on disability benefits quickly if they just had medical insurance. I expect that a lot of people who work at Social Security would agree. Obamacare should do that before long if the Supreme Court doesn't get in the way.

More On Yesterday's Hearing

     I had some time today, while I did other things, to listen to yesterday's Senate Finance Committee hearing. Here are some things I heard that seemed noteworthy to me:

• Commissioner Astrue said that the technology used for Social Security video hearings before Administrative Law Judges had gotten so good that one could see the watermark on a drivers license.[That is not close to my experience. Often I can hardly recognize the people on the other end.]
• A quote from Commissioner Astrue responding to a question about the number of Social Security employees who are eligible or near eligible to retire: "I'm close to panic about holding onto our people."
• Social Security has a system which reports episodes of violence or threatened violence affecting Social Security offices. There used to be about 500 reports a year. It's now around 2,500.
• Ticket to Work is a "disappointment." The actuaries say it is not cost effective.
• Astrue said emphatically at about one hour into the hearing that it is not the law that attorneys and others who represent Social Security disability claimants are required to submit all medical evidence.
• The Commissioner is uncertain whether current law which gives Social Security Commissioners fixed terms which can overlap Presidential Administrations is a good idea. He seemed to indicate that he thinks it is a bad idea.
• Astrue said that his continuing as Commissioner after the change in the White House was not what the incoming Obama Administration wanted.
• He does not want another term as Commissioner. He wants to return to Massachusetts.

     Please listen to it yourself. It has its dull moments but also some interesting ones. It's certainly more interesting than most of these.

Hearing Site Reopened

     Social Security is closing remote hearing sites all over the country but one is reopening. This one happens to be in Great Falls, Montana. Why would it be reopening? Max Baucus is the senior Senator from Montana. He's also chairman of the Senate Finance Committee which has jurisdiction over the Social Security Administration. The Committee just happened to have had an oversight hearing on Social Security yesterday. There might be some connection there.
     A spokesman for a Republican candidate running for the other Senate seat in Montana responded to this development by saying  "Let's not forget this was a government-created problem" and that the closing of the remote hearing site "reflects a bias against rural states" under the Obama administration.

Astrue's Statement To Senate Finance Committee -- The Future Doesn't Look Too Good For Service Delivery

     From Michael Astrue's written statement to the Senate Finance Committee today with some added bolding:

... [I]n FY [Fiscal Year] 2011 [which ended September 30, 2010], while we received unprecedented new workloads, Congress cut our budget more deeply than in any year of the previous two decades. Congress also rescinded a sizable portion of our IT [Information Technology] carryover funding, which is our best mechanism for improving productivity. With staff reductions caused by hiring freezes and attrition, our work force is contracting rapidly, field offices are consolidating, and we are struggling to maintain recent levels of service. When I leave office in 2013, the agency will have about the same number of employees that we had when I arrived in 2007, even though our workloads have increased dramatically. Since FY 2007, retirement and survivor claims have increased by 26 percent and disability claims have increased by over 31 percent. ...

Let me be clear that our ALJs’ [Administrative Law Judges'] improved productivity has not resulted in more allowances. Our ALJs are not meeting our productivity goals by “paying down the backlog,” as has sometimes been alleged. In fact, our hearing level allowance rate dropped over 4 percentage points this past year. ...

The sheer volume of work our employees handle is incredible. For instance, in FY 2011, more than 45 million people visited our field offices across the Nation. Despite the high volume of visitors, we reduced wait times in our field offices by more than 9 percent from FY 2010. [Notice that he's talking about last fiscal year. The numbers this fiscal year probably aren't as good]...

Last year, callers to our 800 Number had the shortest wait time and lowest busy signal rates ever. We reduced the time spent waiting for an agent by 45 percent, from 326 seconds in FY 2008 to 180 seconds in FY 2011. [But again he's talking about last year. Things aren't going so well this year as we'll see below.] We cut our busy rate by over 70 percent since FY 2008. We attribute much of our improved performance to hiring additional teleservice representatives in FY 2009 and FY 2010, along with several technological advancements to make our 800-number more efficient. ...

Regardless of our technology improvements, under current funding we project that our 800-number service will deteriorate significantly because we will not have a sufficient number of people to answer calls. We expect that busy signals will rise from 3 percent in FY 2011 to 6 percent in FY 2012. Our average speed of answer will increase from 180 seconds in FY 2011 to 285 seconds in FY 2012. 

Overall service also will deteriorate in our field offices and processing centers because staffing losses do not happen evenly across the country. This year alone, nearly one-third of our field offices have experience more than 10 percent attrition, and 15 offices have lost over 30 percent of their staff.

An Outlier

     Social Security Administrative Law Judge Drew Swank was mentioned here recently because of a law review article he wrote. He's now drawing attention for the decisions he issues on disability claims. From the Virginia Lawyers Weekly:

[Swank] has one of the highest denial rates in the country. Swank rejects nearly eight of every 10 claims for disability benefits, according to a computer analysis of his rulings.
Attorneys and claimants who’ve had cases before Swank say he is unfair....

“All I’ve ever wanted is for him to do this right,” said Bruce Billman, a Richmond-area attorney who represents people seeking assistance under the Social Security Disability Insurance program.

“If he wants to turn people down, at least do it on the proper evidence, using the proper witnesses, and give us a chance.”

Billman is a former president of the National Organization of Social Security Claimants’ Representatives. He has filed several complaints with the Social Security Administration, accusing Swank of failing to provide due process. ...

It’s not just statistics that have raised concerns among parties who’ve gone before Swank.
Attorneys and claimants accuse Swank of disregarding or excluding the findings of their physicians and vocational experts. ...

Billman, who has practiced disability law for more than 30 years, has filed more than 400 pages of complaints against Swank with the Social Security Administration’s chief administrative law judge in Falls Church. The documents describe what Billman sees as numerous instances of unfairness toward his clients.

However, no action has been taken against Swank.

“He is untouchable,” Billman said. “And every time you file a complaint and nothing gets done, it just reinforces that with him. There’s no system in place to protect you from somebody like this.”

Billman said he complained about Swank in 2008. Until that point, the judge had denied about half of his cases, Billman said. Since the complaint, he said, Swank has denied about 90 percent of his cases. ...

Over several weeks while researching this article, the reporters asked to interview Swank and emailed him questions. Swank said that he wants to defend his record but that he has not received permission from the Social Security Administration to talk to the media.

“The policy originates with the chief judge’s office in Fairfax, VA,” Swank wrote in an email.

      Interestingly, Swank has an article forthcoming in another law journal whose title strongly suggests that he believes that Social Security has a lax approach to misconduct by those who represent Social Security claimants. People who live in glass houses ...