Weak Jujitsu

     Here's the actual language of the new rule in the House of Representatives:

(1) During the One Hundred Fourteenth Congress, it shall not be in order to consider a bill or joint resolution, or an amendment thereto or conference report thereon, that reduces the actuarial balance by at least .01 percent of the present value of future taxable payroll of the Federal Old-Age and Survivors Insurance Trust Fund established under section 201(a) of the Social Security Act for the 75-year period utilized in the most recent annual report of the Board of Trustees provided pursuant to section 201(c)(2) of the Social Security Act.

(2) EXCEPTION.—Paragraph (1) shall not apply to a measure that would improve the actuarial balance of the combined balance in the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund for the 75-year period utilized in the most recent annual report of the Board of Trustees provided pursuant to section 201(c)(2) of the Social Security Act.

     Under this rule, even the most minor change that reduces either disability or retirement payments would allow for the transfer of funds between the two trust funds. Eliminating the lump sum death payment, for instance, would be enough to allow the transfer between the two trust funds and every knowledgeable person knows that should be eliminated. My idea of playing around with the benefit offset for those dually eligible for disability benefits and retirement or survivor benefits wouldn't work since that would leave the actuarial balance of the combined trust funds unchanged -- although that plus some minor change reducing either disability or retirement benefits, such as eliminating the lump sum death payment, would work. Reversing the offset for those dually eligible for Disability Insurance Benefits and SSI would work since it would reduce the combined balance of the two funds by shifting some costs to SSI. Nobody's benefits would be cut. Nobody's taxes would be increased. There would be no effect upon the federal deficit.The windfall offset already reduces Disability Insurance Benefits for back SSI benefits. Just extend that to ongoing payments and the problem is solved. In other words, it will be easy to work around this rule. You don't have to cut anyone's benefits. If you do make a cut, it can be quite a minor cut.

That Jujitsu Move Doesn't Work

 

  I'm still trying to find a copy of the new House rule passed yesterday but if I have it straight they've set forth a rule that prohibits any transfer of money from the Social Security Retirement Trust Fund to the Disability Trust Fund unless the transfer is accompanied by cuts in benefits or increases in taxes so that the Retirement Trust Fund actually ends up with more money despite the transfer. This appears to leave two possible solutions for the looming shortfall in the Disability Trust Fund. First, Congress could pass and the President could sign a bill that would cut Social Security disability benefits by about 20% or Congress could pass and the President could sign a bill that would cut Social Security disability benefits by something less than 20% but which would cut Social Security retirement benefits or raise taxes significantly instead.

    My first thought on hearing of the House rule change was alarm. My second thought was that this changes nothing. This is just another in a long line of efforts by Republicans to find a jujitsu move which would cut Social Security but which would force Democrats to do the cutting. Republicans would then blame the Democrats for the cuts. Why is the risk that Social Security disability benefits will be cut dramatically a motivation for Congressional Democrats to vote for a bill that cuts Social Security benefits dramatically? It's a dramatic cut either way. You're just voting for the pain. For that matter, what's the motivation for Congressional Republicans to vote for a bill that would cut Social Security benefits dramatically? Forget trying to pass such a bill in the House of Representatives. Forget even trying to vote such a bill out of the House Ways and Means Committee. No such bill would even find a sponsor!

     In any case, House rules can be changed by the House at any time by a simple majority vote. Even within the terms of the rule, the House could pass a bill that would cut no benefits, raise no taxes and transfer no money between trust funds but which would prevent anyone from losing Social Security disability benefits. All they would have to do is to play around with benefit offsets for disability recipients who are dually eligible for Social Security retirement or survivor benefits or SSI.

Is There Much Of This?

     From some television station in Colorado that doesn't put its real name on its website:

Fifty-seven-year-old Galdino Juarez depends on his Social Security benefits. He's been in a wheelchair for a decade.

According to two letters he's received from the Social Security Administration, the agency says it will stop paying Juarez because the Department of Homeland Security informed them Juarez has been deported.

However, DHS confirmed to 9NEWS that Juarez is a lawful permanent resident. He has been a legal resident and a green card holder for 35 years.

Don't Know What He's Talking About

     From a press release issued by Senator Sherrod Brown:

Today, U.S. Sen. Sherrod Brown (D-OH) condemned a dangerous new rule in the House of Representatives that would undermine Social Security by attacking Social Security Disability Insurance (SSDI). The unprecedented rule change would prevent the House of Representatives from passing clean reallocations of the Social Security Trust Fund.

“Today, House Republicans are trying to change rules that have been in place for decades as a way to attack social insurance,” Brown said. “Rather than solve the short-term problems facing the Social Security Disability program as we have in the past, Republicans want to set the stage to cut benefits for seniors and disabled Americans.”

     Update: Here's a little more on what he's talking about but, really, I still don't know what's being proposed. If they're proposing that the projected shortfall in the Social Security Disability Trust Fund can only be made up by cutting Social Security disability benefits, they're setting up a major issue for the 2016 election.

Final Rules On Non-Attorney Representation

     From today's Federal Register:

We are adopting, with two revisions, our interim final rules that implemented amendments to the Social Security Act (Act) made by the Social Security Disability Applicants' Access to Professional Representation Act of 2010 (PRA). The interim final rules made permanent the direct fee payment rules for eligible non-attorney representatives under titles II and XVI of the Act and for attorney representatives under title XVI of the Act. They also revised some of our eligibility policies for non-attorney representatives under titles II and XVI of the Act. Based on public comment and subsequent inquiries, we are revising our rules to clarify that an eligible non- attorney representative's liability insurance policy must include malpractice coverage. We are also reaffirming that a business entity legally permitted to provide the required insurance in the States in which the non-attorney representative conducts business must underwrite the policies.

GAO Report On Representation Paid For By States And Localities

     From a report by the Government Accountability Office (GAO):

Little is known about the extent to which states are contracting with private organizations to help individuals who receive state or county assistance apply for federal disability programs. Representatives from these private organizations help individuals apply for Supplemental Security Income (SSI) and Disability Insurance (DI) from the Social Security Administration (SSA). Available evidence suggests that this practice — known as SSI/DI advocacy — accounts for a small proportion of federal disability claims. Using a variety of methods, including interviewing stakeholders, GAO identified 16 states with some type of SSI/DI advocacy contract in 2014. In addition, GAO analyzed a sample of 2010 claims nationwide and estimated that such contracts accounted for about 5 percent of initial disability claims with nonattorney representatives, or about 1 percent of all initial disability claims. Representatives working under contract to other third parties, such as private insurers and hospitals, accounted for an estimated 30 percent of initial disability claims with nonattorney representatives . 

Three selected sites represented different approaches to SSI/DI advocacy, but were similar in many respects. For example , Minnesota contracted with 55 nonprofit and for - profit organizations, while Hawaii and Westchester County, New York , each had a single contractor: a legal aid organization, and a for-profit company, respectively. At the same time, all three sites targeted recipients of similar state and county programs, such as General Assistance, and generally paid contractors only for approved disability claims, among other similarities.

SSA has controls to ensure representatives follow program rules and regulations, but these controls are not specific to those working under contract to states or other third parties and may not be sufficient to assess risks and prevent overpayments — known by SSA as fee violations. Specifically:

• Despite the growing involvement of different types of representatives in the initial disability determination process, SSA does not have readily available data on representatives, particularly those it does not pay directly. This hinders SSA’s ability to identify trends and assess risks, a key internal control. SSA’s existing data are limited and are not used to provide staff with routine information, such as the number of claims associated with a given representative. SSA has plans to combine data on representatives across systems, but these plans are still in development.

• SSA does not coordinate its direct payments to representatives with states or other third parties that might also pay representatives, a risk GAO identified in 2007. In cases involving SSI/DI advocacy contracts, a representative may be able to collect payments from both the state and from SSA, potentially resulting in an overpayment — a violation of SSA’s regulations.

     Why would states or localities pay people to represent Social Security or Supplemental Security Income (SSI) disability claimants? Because receipt of those benefits paid for by the federal government would reduce or eliminate the liability of those states or localities for various forms of benefits they are responsible for. The states and localities want to shift costs to the federal government.
     Overall, I don't think there is enough risk that there is anything bad going on with this form of representation to justify much effort to collect data on it or to try to coordinate payments with the states or localities involved, which is basically the point that Social Security made in responding to this GAO study.

Charles Binder Responds

     I have received an e-mail from Charles E. Binder of Binder and Binder today. Here's part of it:

You have written that Binder & Binder "can no longer afford to update medical records" because of its bankruptcy filing.  That is completely untrue and I have no idea what the basis for your statement could be.  Although Binder & Binder is in bankruptcy, its primary concern remains to ensure that its clients are competently represented.  That remains my personal goal as well.

Binder & Binder's policy on medical records remains unchanged.  There are multiple components.   First, the most crucial evidence is not usually medical records, which are often illegible, vague and rarely address the client's disability, although Binder & Binder routinely seeks the doctors' office notes from treating sources.  What Binder & Binder really wants is a narrative from a treating doctor summarizing the client's history, treatment, diagnosis, prognosis, etc.  If that is not possible, Binder & Binder asks the treating doctor to fill out a questionnaire answering the questions that the SSA deems crucial when deciding disability claims.  When the doctors' records are important and Binder & Binder can not get them or the client cannot afford to pay for them, Binder & Binder asks the SSA to issue subpoenas for the records.  I note that our client retainer agreement has long provided that the client is responsible for payment for medical records.  Nonetheless, Binder & Binder routinely pays the cost of obtaining narratives and answers to questionnaires (and medical records too) when clients cannot afford to pay the doctors' bills to get the information.

     I believe that obtaining existing medical records relating to a claimant's disability which have not already been obtained by Social Security is a crucial part of representing a Social Security disability claimant. Fronting the costs of obtaining those records is a traditional part of representing Social Security claimants. Even looking at it from a strictly selfish point of view, refusing to front the costs of obtaining existing medical records seems irrational to me. The costs of obtaining the records are modest. The risk of losing because the records aren't obtained is significant. The fees from one additional case won will pay for the expenses of obtaining records for dozens of claimants. Besides, in most cases it's possible to obtain reimbursement from the client after they've been paid by Social Security.

Astrue Doesn't Think Much Of OPM's Screening Of SES Candidates

     Former Social Security Commissioner Michael Astrue doesn't think much of the job that the Office of Personnel Management (OPM) does in screening applicants for top level jobs in the Senior Executive Service (SES). Here are some quotes from a recent interview with Astrue done by Federal News Radio:

• It makes it much more difficult to get outstanding talent from the outside, and I lost a couple of really terrific people that way. And it also means that they [OPM] undervalue skill sets that are important. And it's particularly true for information technology.
• You'd try and talk to them [OPM] and they'd say, "Well, this person hasn't managed 50 people," or something like that. And we'd say it's an IT person, it's a lawyer coming out of one of the very best law firms in Washington. They typically don't get those types of experiences, that's not the way their worlds are. But they're outstanding because they have this accomplishment, this accomplishment and this accomplishment, and these are needs that the agency has. And they basically said, "We don't care."
• It's a very large agency, so it meant a lot of people were getting sort of a thank-you SES appointment right before retirement. And that's a nice sentiment, but it's not really what the SES is about. It was, I think, hurting continuity at the agency.