Conference Today

      For what it's worth:

Today, the McCrery-Pomeroy SSDI Solutions Initiative will be hosting an all-day solutions conference. 

The conference will feature 12 policy proposals to improve the Social Security Disability Insurance (SSDI) program, written for the initiative by authors from a variety of backgrounds and perspectives. The conference will also feature opening remarks by Senate Finance Committee Chairman Orrin Hatch (R-UT), mid-day remarks from Bob Greenstein, president of the Center for Budget and Policy Priories, and a wrap-up panel including Congressmen McCrery and Pomeroy alongside Social Security experts Mark Warshawsky and Alan Cohen. 

We invite you to watch the SSDI Solutions Conference live, today from 8:45 am to 5:00 pm on our livestream. You can find a full agenda on our website. 

Also, in case you missed, it please check out Congressmen McCrery and Pomeroy’s op-ed on SSDI in The Hill. 

 To watch the SSDI Solutions conference live, click here.

     This is sponsored by the Committee for a Responsible Federal Budget, which is, at least on this issue, largely a front organization for Pete Peterson's longstanding campaign to cut Social Security. Yes, there are some bipartisan trappings but this is basically a right wing group.

Waiver Disparities

     It's not unusual for a Social Security recipient to become overpaid. Often this happens because of a mistake made by the Social Security Administration. Overpaid claimants who were not at fault AND who don't have the funds to repay can ask for waiver of the overpayment. Also, if the claimant asks, overpayments under $1,000 are waived almost automatically for the sake of administrative convenience, although the field offices aren't supposed to volunteer this information to claimants. Social Security's Office of Inspector General (OIG) has done a study of field office action on overpayment waiver requests. It turns out that a high percentage of waiver requests are granted but that there are major disparities between field offices. See the charts below. I'd hazard a guess that some offices are volunteering information about administrative waivers. Is that really a wrong thing to do? Why should this be hush-hush?

Some Social Security Home Cooking Planned For Eric Conn's Former Clients

     I posted yesterday about the special rules that Social Security has cooked up to try to prevent Eric Conn's former clients from ever seeing the evidence of "fraud or similar fault" that is supposed to justify requiring them to prove all over again that they're disabled. Of course, these special rules also block any hearing on that issue. Let's look now at the special rules that the agency has adopted to make these readjudications easier for the agency. Below are some excerpts from section I-1-3-25 of Social Security's hearing and appeals manual, HALLEX, on Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”). These were adopted last summer, obviously for Conn's former clients. My bolded and italicized comments are interpolated:

• When redetermining a claim(s), an adjudicator will be directed to consider the claim(s) only through the date of the final and binding determination or decision on the beneficiary's application for benefits (i.e., the original allowance date). But what if the claimant wasn't disabled at the time of the prior decision but has become disabled since then. How does this issue get adjudicated? The statute provides that a Social Security claim stays in effect until a final decision on the claim. 42 U.S.C. §402(j)(2). How can one say that there was a final decision on these cases if the agency is vacating the prior decisions? Shouldn't these cases be treated like remands where everything is up for grabs? Back benefits on a claim for Disability Insurance Benefits can only go back up to one year prior to the date of the claim. Supplemental Security Income benefits can only go back to the beginning of the month after the month in which the claim is filed. Note that in these cases we would be talking about reduction of an overpayment rather than actual benefits to be paid but that's still important to these claimants since the overpayments may be collected out of their future benefits. A new claim filed now can't make a claimant whole yet these claimants couldn't have filed new claims while they were drawing benefits. Unless Social Security comes up with some new process these claimants can't file new claims while these adjudications are proceeding.
• During redeterminations based on fraud or similar fault, SSA will not generally develop evidence beyond the original allowance date. However, an adjudicator may consider evidence submitted by the beneficiary that post-dates the original allowance date if that evidence relates to the period at issue in the redetermination. For example, if a beneficiary submits evidence of an IQ test dated after her original allowance, and that evidence, with the remaining evidence of record, supports her claim that she met Listing 12.05C as of the date of her original allowance, SSA will consider that evidence during a redetermination. How convenient for you! There's a period of years with no medical evidence in the record but you absolve yourself from any obligation to obtain this evidence. Remember, many, perhaps most, of these claimants will be unrepresented.
• If the beneficiary submits evidence of a new impairment unrelated to those alleged in the application being redetermined, and the onset date is after the original allowance date, the adjudicator will usually not consider or develop the evidence of the new impairment during the redetermination, unless objective evidence shows a new critical or disabling condition. In that instance, the ODAR adjudicator will consult with ODAR management to determine the appropriate course of action.  I-1-3-25. What's a "new critical or disabling condition"? Why does the condition have to be new? What's the statutory justification for this? How can you tell what's new and what isn't? If the evidence at the time the claimant was originally found disabled showed that he or she was a diabetic and the evidence now shows that the claimant has lost a leg due to that diabetes, is that a new condition? You've already said that you're not going to adjudicate disability after the date of the original approval. Now you say you might but that "ODAR management" will tell ALJs whether they can. What's the process here? How does the claimant ask for this? Who in ODAR management makes this decision? When do they make it? Can the decision be appealed? It sounds like this section of HALLEX was drafted by a committee and that there was disagreement on this whole issue. This was probably a compromise solution but it just doesn't make sense. These claimants and their attorneys, to the extent they have attorneys, would like to know the rules going into this process. Is that unreasonable?

     If the issue is only whether the claimant was disabled at the time of the prior decision approving the claim let's use round numbers and say that 50% of the claimants will be approved. However, if the issue is whether the claimant was disabled at that time or any subsequent time, I'd guess that 75% or more will be approved with some onset date found. Most Social Security disability claimants keep getting sicker as time goes on. This is a big deal. Sure, maybe they would be approved on a new claim but that may take three years and they won't be able to mitigate their overpayment as much as they should.

Claims Reps Charged With Taking Bribes

     Two Florida women who had been claims representatives for the Social Security Administration have been charged with taking bribes for expediting or somehow modifying the process for obtaining Social Security benefits. Most of my readers know this but claims reps have no ability to approve or disapprove a disability claim and this may not have even involved disability benefits anyway. Claims reps are important in the process but they have little discretion. I don't understand how they could have modified the process for obtaining benefits in any meaningful way. I don't know why anyone would have been tempted to bribe a claims rep.

Social Security Making Up Special Rules For Eric Conn's Former Clients

     Social Security made up some special rules just for Eric Conn's former clients. The main point of the rules is to make sure the agency can decide in its absolute, unreviewable discretion that there has been "fraud or similar fault" without ever having to produce any evidence showing this or having to justify its decision before a neutral adjudicator.

     Take a look at sections I-1-3-15, I-2-2-101, I-2-10-8, I-2-10-10, and I-2-10-14 from the agency's hearings and appeals manual, HALLEX. These provide a process whereby an Administrative Law Judge (ALJ) will give notice of a hearing on the issue of whether there was "fraud or similar fault", hold the hearing, possibly take testimony from a witness from the agency's Office of Inspector General (OIG), and make a decision on the issue on the basis of the preponderance of the evidence. All of these sections other than I-2-2-101 were adopted on June 25, 2014. This is the traditional approach to administrative justice.

     Then take a look at section I-1-3-25, Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”), also adopted on June 25, 2014. Here are some excerpts with my interpolated comments bolded and in italics.

• The Deputy Commissioner of ODAR [Office of Disability Adjudication and Review] will determine which ODAR component is designated to redetermine the affected case(s). Wait, who adjudicates whether there was "fraud or similar fault" justifying a redetermination in the first place? Does the head of ODAR get to make this decision in her absolute, unreviewable discretion? When does the claimant get to see the evidence upon which this decision is based? When does the claimant get a chance to counter this evidence? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• ODAR will draft specific processing instructions for any particular batch of cases. Right, you just make it up as you go along.
• When an adverse redetermination is necessary, ODAR will send the claimant an appropriate notice based on the circumstances. The notice may include issues relating to benefit continuation or the opportunity for a supplemental hearing. May include information on benefit continuation? Sounds like you can't make up you mind on this issue. Supplemental hearing on which issues? Additionally, the notice may include the opportunity and time-frame for submitting arguments or rebuttal evidence. I-1-3-25.  But what about the right to a hearing on the issue of "fraud or similar fault? Isn't that required as a matter of administrative law and due process? Does the process you've designed consist of you telling me you've already made up your mind but I can say something which you'll ignore since you've already made up your mind and you can't possibly change your mind because Congressional Republicans will attack you? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
• Based on OIG referrals of information pursuant to section 1129(l) of the Act or information obtained through other criminal, congressional, or administrative investigation, the agency may direct an ODAR adjudicator to disregard certain evidence. The agency can just summarily decide which evidence can be considered in its absolute, unreviewable discretion? How does this square with the right to submit arguments and rebuttal evidence? Sounds like that's no more than window dressing since "the agency" has already made up its mind. It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.

     Why is it that the agency made up these rules last summer, obviously for Conn's cases, but is only just now getting around to acting on the cases? The statute says there is supposed to be an "immediate" readjudication when there is "fraud or similar fault." It looks like the agency can't make up its mind what it wants to do. Maybe that's because the evidence of "fraud or similar fault" isn't all that strong. Convincing 60 Minutes, which is far more interested in good TV than in justice, is one thing. Convincing a neutral adjudicator is another. They don't trust the ALJs to make the "right decision" -- the one that Congressional Republicans demand -- so they want to take the issue out of their hands.

Those Crazy Socialists!

August 10 Hearing To Try To Prevent Benefit Cutoffs In Kentucky and West Virginia

     Ned Pillersdorf's Facebook page indicates that there will be a telephone hearing on August 10 on his motion to stop Social Security's plan to try to cut off the disability benefits of almost 1,500 of Eric Conn's former clients in Kentucky and West Virginia.

     I keep wondering when each of these folks gets an individual evidentiary hearing on the question of whether they were found disabled as a result of "fraud or similar fault." Social Security seems to be trying to go yada, yada, yada past this issue but it seems to me to be basic administrative law as well as basic due process.
     The evidence of this "fraud or similar fault" is so strong that Social Security wants to summarily cut all these claimants off benefits, yet it wasn't strong enough that:

• A U.S. Attorney would bring criminal charges against Conn;
• The Kentucky Bar would try to take away Conn's law license or discipline him in any way;
• The Social Security Administration would bring changes that would prevent Conn from continuing to practice before the agency.

     If, or perhaps when, these evidentiary hearings start, I'd like to hear the testimony of the person at Social Security who is responsible for bringing actions to bar attorneys from practicing before the agency because of misconduct. Why didn't you bring an action against Conn? Or, maybe, you did and couldn't convince an Administrative Law Judge to discipline Conn? Which is it?

A Debate That Shouldn't Come To The U.S.

     I hope this debate isn't coming to the U.S.