Small Bore Proposals From Hatch

     A press release:

Senate Finance Committee Chairman Orrin Hatch (R-Utah) today announced another trio of bills designed to improve the Social Security Disability Insurance (SSDI) program.  The bills put beneficiaries first by establishing new methods to prevent fraud, improve accountability, and provide more opportunities to current and future beneficiaries. The trio of bills join other SSDI bills Chairman Hatch introduced earlier this year as part of a broader package to address pending depletion of the SSDI trust fund.

“For some time now, the SSDI program has been in need of adjustments and updates to the services it provides,” Hatch said. “These bills are yet another step in that process and will help modernize SSDI making it more efficient and effective for both beneficiaries and taxpayers.  The SSDI trust fund will be depleted as early as next year and Congress must continue to search for avenues to address the financial challenges facing the program while continuing to improve on how the program works for beneficiaries.” 

The Promoting Opportunity for Disability Benefit Applicants Act, S. 1923, authorizes the Social Security Administration (SSA) to give denied DI applicants information on employment support services, from public and private non-profits, preventing workers from cycling through the application process and allowing them to re-enter the workforce. Additional background available here.

The Improving the Quality of Disability Decisions Act of 2015, S. 1922, requires the SSA to review Administrative Law Judge disability decisions and report the results annually to Congress to ensure judges are following the law and Social Security’s rules and regulations. Additional background available here.

The Disability Fraud Reduction and Unethical Deception (FRAUD) Prevention Act, S. 1929, updates and builds upon tools to deter and punish fraudsters by imposing civil monetary penalties and felony charges to criminals who defraud Social Security.  The bill also requires a regular review of major claimant representatives to ensure compliance. Additional background available here.

Joining Hatch on the bills as cosponsors are Senators Roy Blunt (R-Mo.), Dan Coats (R-Ind.) and James Lankford (R-Okla.).   

GOP Doesn't Know What It Will Do About Disability Trust Fund

     The Fiscal Times is running an article on Republican efforts to come up with a plan for the looming shortfall in Social Security's Disability Insurance Trust Fund. The bottom line is that Republicans don't have a clue what they'll do. While they might love to cut any type of Social Security, they don't want their fingerprints on any plan to cut Social Security in any way so they work on small bore plans that would have virtually no effect on Social Security disability costs. However, it's clear that many Republicans in Congress will oppose any fix because they want to make their "Social Security is broken" mantra come true.

     By the way, the article advances the myth that there is a "growing number" of people seeking Social Security disability benefits. There used to be true but that's certainly not the case now. The number claiming benefits has gone down dramatically. The number actually drawing benefits has declined modestly over the last year. I can't understand why this point isn't being raised more by Social Security's supporters. Maybe some of these supporters have been taken in by the constant Republican repetition of the "Social Security disability is out of control" meme.

     By the way, I intend to keep pointing out that the administration can solve this problem rather simply without Congressional help. I still haven't heard any reason why my plan won't work.

Fewer People Drawing Disability Benefits

     The number of people drawing Disability Insurance Benefits from Social Security declined in July. This number has declined in nine of the last ten months. There has been a decline of 0.3% from the peak in September of last year.

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.