Lawsuit On Social Security Hearing Backlogs

     From a press release:

The attorneys and certified legal interns from Miami Law’s Health Rights Clinic have filed a federal suit against the Social Security Administration on behalf of 12 indigent and disabled clients who have been waiting as long as 26 months to secure a hearing or receive rulings from a Social Security judge.

The suit asks the government to compel the Social Security Administration to “promptly schedule, hear, and adjudicate” the claims of their clients. ...

Miami has the longest wait times in the country.  “We don’t know exactly why this is the case,” said Zach Lipshultz, a third-year law student in the Clinic, who is working on the case. “It might be due to a lack of administrative judges, or staffing, or something else with Social Security. It might also relate to the extreme poverty and extreme need for disability benefits in Miami-Dade County.” ...

     The problem with this lawsuit is that the Supreme Court ruled on something like it in 1984 in Heckler v. Day. The Court held that a class action could not be used to force Social Security hearings to be held within a time deadline. However, the Court did indicate that individual actions concerning delays at Social Security would still be allowed. It appears that the Miami case isn't a class action, just a normal civil action that happens to have a number of plaintiffs seeking relief. If bringing a lawsuit on behalf of a number of claimants works, expect to see such lawsuits proliferating around the country. 

     For those who think that the federal courts wouldn't possibly do something about the backlogs, don't be so sure. There is a right wing majority on the Supreme Court but the lower courts, including most Courts of Appeals, are increasingly dominated by Democratic appointees. If the Courts of Appeals keep ruling for the plaintiffs in such cases, the Supreme Court probably won't hear a case on the issue.

     By the way, at the time of the Day decision the average hearing backlog was only about nine months if I remember correctly, a fraction of what it is today.

There's No Fountain Of Youth

     The Center for Retirement Research at Boston College has posted a piece promoting the idea that Social Security's full retirement age should be variable based upon the worker's socio-economic status since life expectancy depends to some extent upon socio-economic status.

     To my mind this piece is wrong, wrong, wrong. There's no realistic way of basing policy on a concept as nebulous as socio-economic status. How do you write that into a statute? The bigger problem is that the authors accept at face value that full retirement age should be related to life expectancy? Why? The right wing likes that notion since it might justify higher full retirement age but is there any non-political justification? All I've ever heard basically goes "Well people live longer so they should work longer." That's simplistic. There's no rational reason why full retirement age should be x number of years less than life expectancy. 

     Why should we have any full retirement age anyway? The reason is that there are natural degenerative changes in people's bodies and minds as they age. These changes occur at somewhat differing rates but they happen to everyone as they age. Full retirement age acknowledges that these changes decrease the ability to work even in those who seem healthy -- for their age. Instead of trying to do determinations of disability for people whose main problem isn't so much a specific disease as the general effects of aging, we have a full retirement age. What's wrong with this concept?

     The fact that people live longer does not mean that they don't age. People have been looking for a fountain of youth for centuries. No one has found it yet. The effects of aging cannot be delayed or reversed by medical treatment.

ERE Shutdown Over Weekend

     I just received this message from Social Security:

ERE will be unavailable Friday, January 8^th from 11:00pm through 5:00am Monday, January 11^th due to an emergency release.

This release will fix the invalid characters in Secure Messaging issue detailed in System Notices on the ERE home page.

Social Security Law Section of FBA Posts Newsletter

     The Social Security Law Section of the Federal Bar Association has posted its Winter 2016 newsletter. There is an article on the "Reserved to the Commissioner" defense that the Social Security Administration tries to use to avoid the treating physician rule and a very interesting article on suicides among Social Security disability claimants.

Big Surprise: Controversy Over SSA Role In Gun Control

     From the New York Times:

Responding to Republicans who have repeatedly tied gun violence to mental healthissues, President Obama’s new gun control plan will allow state agencies and the Social Security Administration to provide certain “protected health information” to the F.B.I. to help crack down on weapons sales to people who pose a danger to themselves or others or are unable to manage their own affairs. ... 

“We are concerned about the implications of this rule,” said Jennifer Mathis, a lawyer at the Bazelon Center for Mental Health Law, an advocacy group for patients. “It points a finger inappropriately at people with mental illness as a source of gun violence. It’s a bad precedent to start creating exceptions to the privacy law for people with mental illness, who are responsible for about 4 percent of incidents of gun violence.” ...  

Under a rule to be developed by Social Security, the administration said the agency would provide information on “approximately 75,000 people each year who have a documented mental healthissue, receive disability benefits and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent.” ... 

“No one’s psychotherapy notes are going to end up being disclosed because of this rule,” said Andrew Sperling, a lobbyist at the National Alliance on Mental Illness, an advocacy group for patients and their families. 

Dr. Paul S. Appelbaum, an expert on psychiatry and the law at Columbia University, said that the regulation “does not require or permit the reporting of any clinical information.” 

Dr. Renée L. Binder, president of the American Psychiatric Association, said the group did not see a threat to doctor-patient confidentiality. 

“We feel that people who are dangerous should not have access to guns,” Dr. Binder said. ... 

Jonathan M. Stein, a lawyer at Community Legal Services in Philadelphia who has won many court cases for Social Security beneficiaries with disabilities, called the Social Security component discriminatory. 

“The government is seizing on a group of people with serious mental illness who are unable to manage their money,” he said. “What does that have to do with any propensity for gun violence?”

     For the record, I strongly disagree with Ms. Mathis and Mr. Stein. I see no privacy or discrimination issue here. This list isn't going to be public. The greatest threat that this will address is suicide and that's no minor threat in the group who will be affected by this action. 

     By the way, Social Security still hasn't sent a proposal over to the Office of Management and Budget. At least, no proposal is showing up on the OMB website. If this is going to be finalized before President Obama leaves office, this needs to start moving pronto.

Disability Claims Filed, Approved And In Current Payment Status Declined In 2015

     Social Security has posted year end data on the number of Disability Insurance Benefits claims filed, approved and in payment status through the end of 2015. As of the end of calendar year 2015 the number of claims filed was down 4.3% from 2014. The number of claims approved was also down 4.3%. The number of claimants in current payment status declined by a half percent in 2015. Terminations of benefits increased by 2.95%. The termination rate was up to 8.62%, the highest it's been in at least 15 years.

Social Security To Be Involved In Gun Control

     From a fact sheet on the President's initiative to reduce gun violence issued by the White House yesterday:

... The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons. ...

Current law prohibits individuals from buying a gun if, because of a mental health issue, they are either a danger to themselves or others or are unable to manage their own affairs. The Social Security Administration (SSA) has indicated that it will begin the rulemaking process to ensure that appropriate information in its records is reported to NICS [National Instant Criminal Background Check System]. The reporting that SSA, in consultation with the Department of Justice, is expected to require will cover appropriate records of the approximately 75,000 people each year who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent. The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health. ...

     To this point, the Office of Management and Budget (OMB) website doesn't show any proposed rulemaking pending review. OMB approval is required before Social Security can publish a Notice of Proposed Rule-Making (NPRM).

User Fee To Stay At 6.3%

     The user fee charged attorneys and others who qualify for withholding of fees from the past due benefits of the claimants they represent will remain at 6.3% for 2016. Social Security swears that it costs more than this to compute and authorize a fee but attorneys have always been deeply skeptical that it really costs this much.