Ways And Means Schedules Hearing For Wednesday

     From a press release:

Today, Ways and Means Human Resources Subcommittee Chairman Charles Boustany (R-LA) announced that the subcommittee will hold a hearing titled, “Protecting the Safety Net from Waste, Fraud, and Abuse.” The hearing will take place at 10:00 a.m. on Wednesday, June 3 ...  

In view of the limited time available, oral testimony at this hearing will be from invited witnesses only. Witnesses will include Members of Congress with reform proposals as well as experts on the operation of the Supplemental Security Income (SSI) and Unemployment Insurance (UI) programs. ... 

In announcing the hearing, Chairman Boustany stated, “The SSI and UI programs annually waste billions of dollars due to improper payment rates that average around 10 percent year after year. It’s long past time that we identify the causes and start implementing real reforms to improve the integrity of these programs. That will benefit taxpayers, but especially those who most need this assistance.”

Class Action Lawsuit Over Terminations Of Benefits

     A class action lawsuit has been brought against the Social Security Administration over the termination of benefits which had been going to approximately 900 firmer clients of Eric Conn. 

     Meanwhile the Lexington Herald-Leader has run an editorial criticizing Social Security for cutting off these benefits but not prosecuting Conn. It's not just me who finds it peculiar that the evidence exists to justify summarily cutting 900 people off benefits but the evidence doesn't exist to suspend Conn from practicing before Social Security, a civil matter which would only require proof by a preponderance of the evidence, much less to bring criminal charges against him. Social Security can yell "It's fraud! It's fraud!" all they want but this doesn't make sense.

A Recruiting Poster

Legal Action Under Way In Eric Conn's Cases

     Some of Eric Conn's clients are suing him. There's also talk of seeking a court order to prevent Social Security from summarily cutting off benefit payments to 900 of Conn's former clients.

Exactly How Is Social Security Trying To Cut 900 Former Clients Of Eric Conn Off Disability Benefits?

     I'm curious about exactly how the Social Security Administration is approaching the 900 or so cases in Kentucky and West Virginia in which it is trying to take away disability benefits from claimants who had been represented by Eric Conn. I wonder if some reader knows how, procedurally, the agency is doing this.

     Here are the possibilities that come to my mind and the problems associated with those possibilities:

• Reopening under 20 C.F.R. §§404.988(b) and 404.989 due to new and material evidence that some medical reports submitted by Conn were phony. This would be limited to cases where the initial determination (not the ALJ decision) was issued in the last four years. The argument could be made that Social Security already knew that the medical reports were phony. I don't know for sure but I suspect that the local ALJs would testify that everybody already knew, at least in rough terms, what was going on. Of course, if the ALJ decision relied upon the allegedly phony report, this might not matter. I suppose this is the most likely route. The claimants could still prove they were disabled anyway and most probably would.
• Reopening under 20 C.F.R. §404.988(c)(1) on the grounds that the favorable decisions were obtained by "fraud or similar fault." If Social Security has proof of "fraud or similar fault" how is Eric Conn still practicing before the agency?
• Termination of benefits under 20 C.F.R. §404.1579(d)(3) based upon a determination that the original decision putting the claimant on benefits was "in error." The problems here are that benefits could not be terminated retroactively without meeting the criteria specified above for reopening, the claimants would be eligible for interim benefits while they appealed their terminations and the agency would bear the burden of proving the "error."

     I know that all this may sound like a bunch of legalese but Social Security has to follow its own rules. You'll notice from what I've posted earlier and from many of the comments on my post that most lawyers think that cutting these folks off benefits is no slam dunk. There are reasons that Social Security is just now getting trying to do this. And remember, Social Security won't have an attorney present at any ALJ hearings on these issues and the attorneys representing these claimants will keep asking again and again why Social Security is going after the claimants but not going after Eric Conn directly.

     Update: This newspaper article suggests that Social Security is taking the third route, termination, since the 10 day window to get interim benefits applies only to terminations.

Claimants Caught In The Crossfire

     From the Lexington Herald-Dispatch:

The Social Security Administration confirmed Wednesday its review of disability benefits for approximately 1,500 cases, all tied to Kentucky attorney Eric C. Conn and former Social Security administrative judge David B. Daugherty.

The action suspends Social Security Disability Income (SSDI) benefits to more than 900 individuals and their auxiliaries, while payment to others receiving Supplemental Security Income (SSI) or a combination of both will continue as the review proceeds.

     Let me explain why Social Security's action is problematic. Eric Conn isn't guilty because 60 Minutes and a Congressional committee say he's guilty. The Social Security Administration has to bring charges against him, either to indict him for a crime and then convict him or to bring an action to suspend him from practicing before the agency and succeed in getting him suspended. Conn hasn't been indicted. So far, he hasn't been suspended from practicing before the agency. Social Security doesn't have the evidence to go after Eric Conn. However, the agency does have the evidence to summarily cut 900 people off benefits?
     Even if we assume that Conn is guilty as sin, that doesn't mean that his clients are guilty of anything or that they weren't disabled. What is alleged is that Conn got phony reports from doctors. Probably, his clients were unaware that Conn was doing anything wrong. More important, even if they were aware that Conn was doing something wrong, they may still be disabled. The allegation is that Conn was routinely obtaining and submitting phony medical reports on his clients. Adding a phony medical report to a file doesn't negate all the other evidence in the file. In most cases Conn would have been gilding the lily.
     From the point of view of an experienced Social Security attorney, what Conn is alleged to have done was just stupid. He was going to win most of the cases anyway. Obviously phony evidence might have impressed an Administrative Law Judge (ALJ) or two but it would have antagonized many other ALJs. His alleged scheme would have cost a lot of money, been of dubious utility and subjected him to a big criminal risk. Instead of trying to make a living representing Social Security claimants, Conn is alleged to have used illegal means to try to make a killing. Bad career move.
     I worry that the claimants whose benefits are being cut off are being caught in a crossfire. Social Security wants to destroy Conn. Cutting many of his former clients off benefits will probably destroy Conn's ability to get new clients. Social Security can also demand back the attorney fees that Conn has received in those cases, destroying Conn financially. Conn may have it coming but I doubt that his former clients deserve this treatment.

Hatch Introduces Bill To Force Social Security To "Modernize" Grid Rules

     From what appears to be a press release:

Senate Finance Committee Chairman Orrin Hatch (R-UT) introduced three bills on Wednesday, each aimed at improving the administration and integrity of the Social Security Disability Insurance (SSDI) program. Essentially, Hatch’s legislation modernizes the antiquated “grid rules,” which have been used for many years to determine the level of disability and eligibility for the program. The bills also simplify the benefit process and create a medical-evaluation standard on par with Medicare.

“For far too long, the SSDI program has failed to keep up with the rapid changes in medicine, technology and education,” Hatch said. “These bills are the first step in modernizing the SSDI program to make it more effective and efficient for both beneficiaries and taxpayers.”

The Guiding Responsible and Improved Disability Decisions (GRIDD) Act would require the Social Security Administration (SSA) to update the medical and vocational grids that are used by disability decision makers. (The “grid rules” take a number of quality-of-life issues into account to determine whether an individual is or is not disabled, but the rules were originally written in 1979 and have never been updated to today’s standards).

The Promoting Opportunity Through Informed Choice Act would create a support system for disability beneficiaries who want to return to work by mandating that the SSA develop public online tools to assist beneficiaries.

The Disability Evidence Integrity Act would discourage the SSA from making determinations on whether disabled individuals should receive Disability Insurance benefits based on any evidence provided by those who have been convicted of a felony or are otherwise disqualified from participating in a federal health care program.

     Notice what's going on here. Hatch and other Republicans are afraid to say they want to cut Social Security disability. No, they use the euphemism "modernize" but, trust me, this is about making it significantly harder to get on disability benefits. And it's not just the use of a euphemism; they want to keep their fingerprints off the unpleasantness that results from the "modernizing." They want to force the executive branch to do the "modernizing." They'll then blame the executive branch for the resulting public anger. Nice jujitsu move if they're allowed to get away with it. Also notice how it appears that they're timing the introduction of this bill to coincide with what's going on in Kentucky. I don't think that's coincidental.

There's Not Enough Evidence To Charge Eric Conn With Any Wrongdoing But There Is Enough Evidence To Throw More Than 800 Of His Clients Off Benefits?

     From the Lexington Herald-Leader:

The federal government has moved to suspend disability payments to some people in Eastern Kentucky whose cases were handled by Floyd County attorney Eric C. Conn, citing suspected fraud by Conn and doctors whom his clients often consulted.

Attorneys familiar with the issue said it was possible that several hundred people received suspension notices from the Social Security Administration. ...

Conn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."

Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move." ...

The Social Security Administration, or SSA, did not respond to requests from the Herald-Leader for information about the suspension letters Friday or Tuesday. However, the newspaper obtained a copy of one of the letters with the name and claim number of the recipient redacted.

The letter, dated May 18, said "we are suspending your disability benefits and the benefits of anyone entitled under your Social Security record."

The letter said the Office of Inspector General had notified SSA that there was reason to believe fraud was involved in certain cases that used evidence Conn submitted on behalf of clients from four doctors: Frederic Huffnagle, who died in 2010; David Herr; Bradley Adkins; and Srinivas Ammisetty. ...

The letter that went out last week said that under the law, SSA must make a new determination of whether someone is eligible for benefits when there is reason to believe there was fraud in the earlier application. In doing the review, the agency must disregard information from the four doctors, the letter said.

The letter said the agency would not be able to consider evidence produced by Huffnagle from January 2007 to May 2011; from Adkins from July 2007 to May 2011; from Ammisetty any time after July 2007; and from Herr from December 2009 to April 2011. ...

Many people formerly represented by Conn will have trouble finding another attorney to represent them in the process of redetermining their eligibility, said Ray S. Jones, a Pikeville attorney and state senator who was contacted by three people who got letters.
"Prestonsburg attorney Ned Pillersdorf said his information is that more than 800 suspension letters went out last week.

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

There's going to be a lot of innocent people hurt by this," Jones said. ...

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpyConn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."
Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move."

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpyConn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."
Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move."

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy