EAJA Payments In Social Security Cases Increasing Rapidly

     Social Security has recently released information on payments it has made under the Equal Access of Justice Act (EAJA), which shifts the cost of attorney fees to the government in some cases where a claimant is the prevailing party in a civil action in the federal courts. Here are the numbers

2010	$19,743,189.12
2011	$21,668,646.47
2012	$24,666,171.13
2013	$27,720,951.87
2014	$31,637,462.36

29% Opting Out Of Video Hearings

     Social Security has released information on claimants who are opting out of video hearings. This year 29.25% are opting out, which is a lot less than I thought it would be. In my opinion, it's a lot less than it should be.

Take The Test

     Money Magazine has an online quiz so you can "Test Your Social Security IQ." I'm proud to say I answered all the questions correctly.

Retirement Inequality

     From a study by the Center for Effective Government:

Company-sponsored retirement assets of just 100 CEOs are equal to those of more than 40 percent of American families. 

• The 100 largest CEO retirement funds are worth a combined $4.9 billion. That’s equal to the entire retirement account savings of 41 percent of American families (more than 50 million families and more than 116 million people).
• On average, the CEOs’ nest eggs are worth more than $49.3 million, enough to generate a $277,686 monthly retirement check for the rest of their lives. 
• David Novak of YUM Brands had the largest retirement nest egg in the Fortune 500 in 2014, with $234 million, while hundreds of thousands of his Taco Bell, Pizza Hut, and KFC employees have no company retirement assets whatsoever. ...
• Fortune 500 CEOs saved $78 million on their 2014 tax bills by putting $197 million more in these tax-deferred accounts than they could have if they were subject to the same rules as other workers. These special accounts grow tax - free until the executives retire and begin to withdraw the funds. 
• The Fortune 500 CEOs had more in their company-sponsored deferred compensation accounts than 53.8 percent of American families had in their deferred compensation accounts. ...

New Fraud Provision In The Grand Deal

     Let's take a closer look at some of the Social Security portions of the grand deal which is likely to be approved by Congress in the next few days. I'll start out with the fraud provision that I said earlier looked to me as if it makes it a crime to submit medical evidence in support of a disability claim. I didn't mean to suggest that was going to happen. I know this isn't the intent. This looks like a drafting error to me. Here's the statute involved as it will read after this is enacted, with the new portion bolded:

42 U.S.C. §1011 (a)  In general Whoever—

     (1) knowingly and willfully makes or causes to be made any false statement or representation of a material fact in an application for benefits under this subchapter; 

     (2) at any time knowingly and willfully makes or causes to be made any false statement or representation of a material fact for use in determining any right to the benefits; 

     (3) having knowledge of the occurrence of any event affecting—

          (A) his or her initial or continued right to the benefits; or

         (B) the initial or continued right to the benefits of any other individual in whose behalf he or she has applied for or is receiving the benefit,

conceals or fails to disclose the event with an intent fraudulently to secure the benefit either in a greater amount or quantity than is due or when no such benefit is authorized; or  

     (4) having made application to receive any such benefit for the use and benefit of another and having received it, knowingly and willfully converts the benefit or any part thereof to a use other than for the use and benefit of the other individual, shall be fined under title 18, imprisoned not more than 5 years, or both; or

      (5) conspires to commit any offense described in any of paragraphs (1) through (3) except that in the case of a person who receives a fee or other income for services performed in connection with any determination with respect to benefits under this title (including a claimant representative, translator, or current or former employee of the Social Security Administration), or who is a physician or other health care provider who submits, or causes the submission of, medical or other evidence in connection with any such determination, such person shall be guilty of a felony and upon conviction thereof shall be fined under title 18, United States Code, or imprisoned for not more than ten years, or both.’’.

     This doesn't make sense. The new language seems to make it illegal to submit evidence without specifying that it's only illegal to knowingly submit false or misleading evidence which was almost certainly the intent. I don't think anyone is going to be prosecuted under this even if they're guilty as sin because the language is so confusing.

     The right wing extremists in the Freedom Caucus have been demanding "regular order" in the House of Representatives, meaning that they want bills to progress from Subcommittee to Committee to the House floor with members having the opportunity to carefully study the bills and offer amendments. I agree with them on this if nothing else. Regular order helps prevent this sort of problem. Members of Congress, their staffs or outside individuals have a chance to study a bill and point out problems, including drafting errors. The problems can be sorted out before a bill becomes law. However, I've seen plenty of problems like this one in legislation signed by the President even when there is "regular order." Such problems are typically cleaned up with technical corrections acts but the Congressional sclerosis has gotten so bad that it's now difficult to even pass technical corrections acts.

More On Contracting For Rep Payee Reviews

     I had posted earlier today on Social Security's notice seeking a contractor to handle representative payee reviews. I received this e-mail in response:

Dear Mr. Hall,

We read your blog post Contractor Sought To Handle Representative Payee Reviews and agree with your assessment.

In 2009, the National Disability Rights Network (NDRN) and our members, the Protection and Advocacy System (P&A), became involved with representative payee reviews following the discovery of horrific abuse and neglect of thirty-two men with disabilities by Henry's Turnkey Service, an organizational representative payee in Iowa who also employed the beneficiaries.

Following the discovery of the abuse and financial exploitation by Henry's, SSA moved very quickly to determine whether other organizational payees were employing and exploiting the beneficiaries they were appointed to serve. As part of this effort, SSA turned to NDRN and the P&A agencies to conduct reviews of organizational representative payees who also employ beneficiaries.

They chose us because P&A agencies are a nationwide network of legal services agencies who provide services specifically to people with disabilities. Our mission is to advocate for and protect the basic rights of individuals with a wide range of disabilities. The services that P&A agencies are created to provide squarely positioned us to carry out SSA s representative payee reviews and we have been awarded the reviews every year since 2009.

Unfortunately, SSA's recent announcement that the Representative Payee monitoring project going forward would only be performed by a small business forecloses the ability of the NDRN and the P&A agencies from competing to perform this work in the future because NDRN is a nonprofit organization and cannot compete for a small business set aside contract.

SSA has already spent extensive resources to clear 261 P&A monitors in every state, the District of Columbia and the Native American P&A. P&A agencies have done 3,415 reviews which included interviews with 15,974 beneficiaries. It is baffling to us why now they would choose to exclude us in favor of an untested small business who may have no experience working with the disability population. Beneficiaries are all across the country and sometimes in different states than their representative payee.  Is a small business going to be a capable monitor in this nationwide environment?

Your observation that  this is the sort of thing best done by experienced personnel who are located in the communities where the representative payees live  is exactly correct. And being a nationwide network of disability advocates, we are those experienced personnel who have been doing it with great success.

Of the reviews that have already taken place, 84% of the NDRN and P&A identified reviews discovered problems, while only 65% of the other SSA initiated reviews found problems. This is a clear indication to us that our knowledge and expertise on disability related issues are necessary for the representative payee project to be successful in protecting beneficiaries. 

Excluding NDRN from applying for this contract would be a grave disservice to an already vulnerable population.

Please feel free to use any or all parts of this letter on your blog.

Sincerely,

Curt Decker

Executive Director

National Disability Rights Network

Gruber On Backlogs

     Terrie Gruber was recently appointed to head Social Security's Office of Disability Adjudication and Review (ODAR). The agency's Administrative Law Judges (ALJs) work at ODAR. Gruber spoke today at the National Organization of Social Security Claimants Representatives (NOSSCR) conference in Denver. I am not attending this conference but I'm told by someone who is attending that Gruber told those attending the NOSSCR meeting that ODAR would begin to reduce its hearing backlog in Fiscal Year (FY) 2017 which begins on October 1, 2016. She thought the agency could eliminate the hearing backlog by FY 2020. She said "We can't hire our way out of this."

     First, ODAR could definitely hire its way out of the backlog if it were given enough money. It's just that there's no prospect of this happening. Second, it would be a big step forward if ODAR could just keep the backlog from growing in the current FY. I don't know how likely this is. ODAR would need a lot of money for overtime and it would need permission to aggressively use the Senior Attorney program and to encourage ALJs to issue on the record reversals. They would also need the cooperation of other components of the agency for a strong re-recon program. I'm not going to explain Senior Attorney, re-recon and on the record reversals here. Let's just say that these are ways of diverting strong cases for special reviews which can result in the strongest claims being approved quickly. To do this, the agency will have to get over its fear of being accused of paying down the backlog. Gruber has said things to the Washington Post indicating the agency is getting past this concern but we'll have to see what actually happens on the ground. Finally, talk of eliminating the backlog by 2020 is almost pathetic. I'm sure that there's plenty of desire to do so. Given the means, I'm sure the agency will do so. It's just that achieving this goal will take plenty of hiring which takes money and no one can fully predict the agency's operating budget for the current FY much less its operating budget for FY 2020.

Contractor Sought To Handle Representative Payee Reviews

     Social Security is seeking a contractor to handle representative payee reviews. Representative payees handle Social Security benefits for claimants who lack the mental capacity to do so. Sadly, some representative payees fail to do their jobs properly or simply steal from the people they are supposed to be helping. Having a contractor handle representative payee reviews would be new, wouldn't it? 

     My gut feeling is that this is questionable, that these reviews aren't rote work or a specialized or technical service which should be contracted out. This is the sort of thing best done by experienced personnel who are located in the communities where the representative payees live. What do you think?