The Lame Duck Quacks

     Even as a lame duck, Michael Astrue keeps sending over proposed new regulations to the Office of Management and Budget (OMB), which is part of the White House. OMB must approve proposed regulations before they may be published in the Federal Register. Astrue has now sent over a set of final regulations on the scheduling of hearings. This proposal is based upon proposed regulations published on November 10, 2008, while George W. Bush was still President. That proposal would have specified that the agency could schedule hearings for Administrative Law Judges (ALJs) whether they liked it or not. This proposal never went anywhere, presumably because of opposition from the Obama Administraton. However it was never withdrawn. Apparently, the proposal has since mutated. The proposal just sent over to OMB would:

... revise our rules to protect the integrity of our programs and to address public concerns regarding the removal of an administrative law judge's name from the Notice of Hearing and other prehearing notices. To accomplish both objectives, these proposed rules state that we will provide an individual with notice that his or her hearing may be held by video teleconferencing and that he or she has an opportunity to object to appearing by video teleconferencing within 30 days of the notice. We have also made changes that allow us to determine that claimant will appear via video teleconferencing if a claimant changes residences while his or her request for hearing is pending. We anticipate these changes will increase the integrity of our programs with minimal impact on the public and result in more efficient administration of our program. 

     What this means is unclear to me. One strong possibility is that a claimant would be notified shortly after filing a request for hearing -- long before any hearing is scheduled -- of the possibility that a video hearing would be scheduled. Unless the claimant objected within 30 days of that notice, he or she would be considered to have waived their right to an in-person hearing. Also, claimants who move after requesting a hearing would be required to have a video hearing whether they want it or not. However, that's just a guess. The summary above was not written to be understood. In any case, this proposal isn't going anywhere until there's a new Commissioner. The new Commissioner will be able to withdraw or revise it. Even if the new Commissioner likes it, OMB may veto it. Even if it went through, it could be challenged since the final regulations would be completely different from the proposal. The public is supposed to be able to comment on proposed regulations. An agency can't publish one set of proposed regulations, take comments on that and then substitute something completely different as final regulations. That would be contrary to the Administrative Procedure Act.  OMB itself is supposed to, and does, prevent this sort of thing. The Courts can also prevent it.
     I get the impression that Astrue assumed that President Obama would not be re-elected. Astrue kept working on this and other regulatory proposals that he meant to have adopted once a Republican President was elected. He's not letting the election results stop him from making the gesture. I don't see the point.

A Public Debate

     Nicholas Kristof of the New York Times wrote a column in December attacking Supplemental Security Income (SSI) benefits for children. Jonathan Stein and Rebecca Vallas of Community Legal Services in Philadelphia sent a memo to the Public Editor of the Times complaining that Kristof's column was inaccurate and unprofessional. Kristof has responded, publishing the Stein and Vallas memo. I find that memo devastating. You can judge for yourself how well Kristof responds but I think one point needs to be made. Kristof asserts that he talked with proponents of SSI benefits for children. However, if you talk with those proponents, you're almost certain to be referred to Jonathan Stein. He's the one person you need to talk with if you want to talk with a proponent of SSI child's benefits. That's just a fact. Stein has done other things but SSI childs' benefits has been his beat for decades.  Clearly, Kristof never talked with Stein before publishing his column. For that reason alone, I have to call Kristof's research shallow.

Grant Program For Graduate Students

     This is from a notice in the Federal Register posted jointly by the Social Security Administration and the Department of Education: 

The Minorities and Retirement Security (MRS) Program is a new discretionary grant program jointly administered by the United States Department of Education (ED or the Department) and the United States Social Security Administration (SSA). The MRS Program will provide grants to support research by graduate students at selected graduate institutions with high proportions of minority and low-income students (referred to in this notice as Minority Serving Institutions(MSIs)) in the areas of retirement security, financial literacy, and financial decisionmaking (personal savings, labor force planning, personal debt, etc.)within minority and low-income communities.

     I hope this is not coming out of Social Security's appropriation.

Social Security Slow In Responding To VA's Requests For Medical Records

     From Veterans’ Disability Benefits: Timely Processing Remains a Daunting Challenge:

Difficulties obtaining Social Security Administration (SSA) medical records, as one specific example, can also lengthen the evidence gathering phase. Currently, an interagency agreement exists that establishes the terms and conditions under which SSA discloses information to VA for use in determining eligibility for disability benefits, according to VBA [Veterans Benefits Administration] officials. Although VBA regional office staff have direct access to SSA benefits payment histories, they do not have direct access to medical records held by SSA. If a veteran submits a disability claim and reports receiving SSA disability benefits, VA is required to help the veteran obtain relevant federal records, including certain SSA medical records, to process the claim. VBA’s policy manual instructs claims staff to fax a request for medical information to SSA and if no reply is received, to wait 60 working days before sending a follow-up fax request. If a response to the follow-up request is not received after 30 days, the manual instructs claims staff to send an email request to an SSA liaison. VBA officials at four of the five regional offices we reviewed told us that when following this protocol, they have had difficulty obtaining SSA medical records in a timely fashion. Moreover, they reported having no contact information for SSA, beyond the fax number, to help process their requests. In complying with VA’s duty to assist requirement, VBA staff told us they continue trying to retrieve SSA records by sending follow-up fax requests until they receive the records or receive a response that the records do not exist. VBA area directors said some regional offices have established relationships with local SSA offices and have better results, but obtaining necessary SSA information has been an ongoing issue nationally. For example, officials at one regional office said a response from SSA regarding a medical records request can sometimes take more than a year to receive.

      For the most part, VA is pretty good about responding to my requests for medical records on my clients. However, getting records from VA's Regional Offices, where benefit determinations are made, can take time. Social Security rarely requests these records. I always ask for them as early as possible since it can take months to get them. It seems to me that the two agencies have the same problem. Their benefits adjudication processes are set up to adjudicate benefits, not respond to requests for medical records.

The Union Perspective

     From Jane Slaughter:

Social Security unionists see threats to the program from the inside, in some ways more subtle than benefit cuts, but just as insidious over the long run.

Jim Campana is an officer in the Government Employees (AFGE) union representing Social Security workers in Lansing, Michigan. He says that after President George W. Bush lost his bid to privatize the program in 2005, “the first thing he did was destroy the security part of Social Security. It used to be that people knew it would be there for them. Now a lot of people have lost that confidence.”

Dana Duggins, a vice president of AFGE Council 220, said administrators have been on a mission “to strip away the reasons why the public rejected privatization.”

Management is making the program less efficient and less user-friendly, and enforcing methods that wrongly lower benefits, while nurturing the seed of doubt that Social Security can last.

Michael Astrue, the Social Security Administration (SSA) commissioner appointed by Bush, went full throttle with an internet claims system. Those seeking retirement or disability benefits are encouraged to fill out forms online.

But with I-claims, Duggins says, “85 percent of the time the person is disadvantaging themselves. They complete the information based on what their neighbor told them. They’re guessing.”

The commissioner, who will be in office until January 2013, has insisted that employees not question information on the applications. “He says everybody these days has their own financial advisor,” Duggins said. “This is the elitist attitude he works from.”

     I think the AFGE might have some antipathy for Michael Astrue.

Is There Really A Connection Between Unemployment Rates And Disability Claims?

     The abstract for a research paper by Matthew Rutledge (emphasis added):

Workers over age 55 with chronic health conditions must choose between applying for Social Security Disability Insurance (SSDI) benefits or continuing to work until their Social Security retirement benefits become available.  Previous research has investigated the influence of macroeconomic conditions on disability application and, separately, on retirement claiming.  This project uses data from the Survey of Income and Program Participation Gold Standard File to determine whether there is a relationship between national and state unemployment rates and disability applications, taking into account the current or future receipt of Social Security retirement benefits.  First, reduced-form estimates indicate that retirement beneficiaries are more likely to apply for SSDI as unemployment increases – and, conversely, eligible individuals who have not yet claimed benefits are less likely to apply when unemployment rises.   But after accounting for unobserved characteristics associated with both the decision to apply for disability insurance and Social Security benefits, individuals are no more likely to apply for disability benefits when unemployment is high.  Second, we find that the probability of SSDI application among individuals age 55-61 is unrelated to macroeconomic conditions and unrelated to proximity to one’s 62^nd birthday.  These results suggest that, unlike prime-age adults, the decision among older individuals to apply for disability is based primarily on health, and not financial incentives.

SSI Child Benefits Result In Better Long Term Outcomes For Disabled Children

     The abstract of a research study by Norma Coe and Matthew Rutledge (emphasis added):

In 1990, the U.S. Supreme Court decision in the Sullivan v. Zebley case fundamentally changed, albeit temporarily, the criteria under which children qualified for the Supplemental Security Income (SSI) program based on disability.  Instead of a system based on medical criteria alone, 1996 enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) tied children’s eligibility for SSI, in part, to the effects of their medically determinable impairments on their ability to function day-to-day in age-appropriate activities at home, at school, and in their communities.  This paper examines what happened to the Zebley cohort after the age of 18 relative to cohorts who received SSI payments under stricter criteria.  This paper evaluates the long-term impact on educational attainment, earnings, SSI and Social Security Disability Insurance (SSDI) participation, and other markers of adult development for the Zebley cohort.  We find that, overall, SSI receipt in childhood is associated more [with] positive outcomes than negative ones.  The Zebley cohort has a longer attachment to the labor force and a lower likelihood of welfare receipt in adulthood, but also a higher likelihood of lacking health insurance coverage.  In addition, those with health conditions most likely to be affected by the new evaluation criteria appear to substitute welfare benefits for disability benefits  These results are consistent with the hypothesis that SSI receipt at the margin improves adult outcomes.

Sales Tax And Social Security Representation

     There is a serious threat that the N.C. General Assembly will extend the state's sales tax to services, including legal services, which would include the representation of Social Security claimants. My recollection was that this issue has come up in a few other states and that Social Security's position has been that it's up to the attorney to collect the sales tax as a cost, in the same way that the costs of obtaining medical records are collected. However, I don't see where this has been done in any state other than South Dakota. Has it been done in other states? How has it worked out where it has been done?