Final Regs On Attorney Conduct Sent To OMB

     Social Security has sent a set of proposed final reguluations to regulate the conduct of attorneys and others who represent claimants before the agency to the Office of Management and Budget (OMB) for approval. OMB has little time to act on this. The final regulations would need to be in the Federal Register by December 20 to come into effect while Barack Obama is still President.

DCPS Coming Out Slowly

     Social Security has been developing the Disability Case Processing System (DCPS) for some time. It is supposed to replace piecemeal legacy systems now used in handling disability claims pending at the initial and reconsideration levels. The agency's Office of Inspector General (OIG) recently issued a report on DCPS. Here are some excerpts (footnotes omitted):

In May 2016, SSA estimated the first release of DCPS would be available in December 2016 —at a cost of less than $38 million — and would support initial claims and reconsiderations. However, while SSA now expects the actual development costs for the December 2016 release to be about $36.6 million, the release will only include functionality needed to support a limited number of cases . SSA will need to make further investments in the product before it will support initial claims and reconsiderations. ...

SSA previously planned to make DCPS Release 1 available by December 2016 with functionality that would enable users to proce ss both initial claims and reconsiderations. However, as of the date of our report, the Agency planned to make available to three participating DDSs in December 2016 what it refers to as an “ Early -Adopter Release” version of DCPS. The Early-Adopter Release will not include all of the DCPS Core functionality that SSA previously planned for Release 1. Instead, it will only enable users in participating DDSs to process those cases involving the most severely disabled who meet the Agency’s criteria for expedited review —Quick Disability Determinations and Compassionate Allowances.

SSA expects to make the Early Adopter-Release software available to the Delaware, Maine, and Ohio DDSs. However , the participating DDSs will only be able to use the DCPS pre-release software for a small percent of their workloads. Those DDSs would need to continue using their legacy systems to process other workloads -- such as non-expedited disabled adult cases, disabled child cases, and continuing disability review -- until the requisite functionality is developed and made available in subsequent release.

Come January 20 The GOP Owns This

     From a recent report by Social Security's Office of Inspector General (OIG):

While the total number of visitors to all SSA [Social Security Administration] field offices steadily increased between Fiscal Years (FY) 2006 and 2010, the number of visitors began declining in FY 2011 and declined each year through FY 2015. The annual number of visitors to all SSA field offices decreased from 45.4 million in FY 2010 to 40.7 million in FY 2015. 

Even as the number of visitors to SSA field offices has declined each year since FY 2010, customer wait times have increased in all 10 SSA regions. For all regions, the average wait time increased from 19 minutes in FY 2010 to 26 minutes in FY 2015. 

The number of visitors to SSA field offices who waited longer than 1 hour for service significantly increased from FY s 2010 to 2015. In fact, for all regions, the number of field office visitors who waited longer than 1 hour for service increased from 2.3 million in FY 2010 to 4.5 million in FY 2015. Further, more than 11 percent of all visitors to SSA field offices waited longer than 1 hour for service in FY 2015. In contrast, only about 5 percent of visitors waited longer than 1 hour in FY 2010

Allowing Claimants To Check Status Of Claims And Appeals

     From the Social Security Administration:

In December, Social Security will launch a new service for my Social Security account holders where the public can check on the status of an application for benefits or an appeal filed with us.

The service will provide detailed information about retirement, disability, survivors, Medicare, and Supplemental Security Income claims and appeals filed either online at socialsecurity.gov or with a Social Security employee.

The ability to check your application status will be available online to everyone who has or opens a secure my Social Security. You can open an account at www.socialsecurity.gov/myaccount.

The service will provide important information about your claim or appeal, including, as appropriate:

• Date of filing;
• Current claim location;
• Scheduled hearing date and time;
• Re-entry numbers for incomplete applications;
• Servicing office location; and
• Claim or appeal decision.

Status Of FY 2017 Appropriations

     Social Security and all other agencies are operating on continuing funding resolutions. This is likely to be the case until March. With news that the incoming Trump administration probably won't even submit a Fiscal Year (FY) 2018 budget much less a FY 2017 budget, the pending House and Senate appropriations bills become even more important than usual. Below is a summary of what the two bills provide. In each case, the bill has only passed at the committee level. There will be new bills in the next Congress which will be at the least similar but which may not be exactly the same as these bills. Each bill will have to pass at the committee level before going to the House and Senate floors. The two bills must then be reconciled. Note that the money differences between the two houses are small in the context of a total agency appropriation of more than $12 billion.
     I have bolded what I regard as the most important riders, that is provisions in appropriations bills  or at least in committee reports that affect not how much money the agency has to spend but try to affect what the Social Security Administration does with that money. Note that what I have bolded is only in the bill that one of the two appropriations committees passed, not both. The committees may become in some ways more cautious and in other ways less cautious in their demands of the agency with a President who is at least nominally Republican. Do they really want to see changes that would deny far more disability claims if a Republican is in the White House to catch the blame? We'll have to see.

House appropriations bill: $75 million less than FY 2016 

House Riders:

• The Committee is aware that some locations average twice the processing time of others and that it can take up to two years to process. This degree of differential processing times is a concern to the Committee. The Social Security Administration is directed to include in the fiscal year 2018 budget request steps taken to reduce the processing times at offices that average over 600 days.
• The Social Security Administration is requested to submit to the Committee an information technology (IT) modernization plan in the fiscal year 2018 budget request. The plan shall include: a complete list of any new systems and significant improvements of existing systems proposed for development; the projected cost of each development project each year to completion including the total estimated cost of development; the estimated annual operations and maintenance costs for each system once development is complete; and a timeline and estimated maintenance cost savings of any legacy systems that will no longer be necessary and are proposed to be eliminated. The plan should also include an assessment of SSA's IT management controls, including how the systems integrate into SSA's enterprise architecture; an analysis of SSA's project management capabilities; and a review of SSA's IT investment and human capital management practices. The requested plan shall address IT funding provided in this Act and any other spending authority planned for or proposed to be used for such purposes.
• The Committee is aware that SSA was added to the Muscular Dystrophy Coordinating Committee through the Muscular Dystrophy CARE Act Amendments enacted in September 2014. The Committee requests that the agency provide relevant data within the fiscal year 2018 budget request on the rate at which persons with Duchenne and Becker Muscular Dystrophy utilize SSA programs, particularly those focused on promoting employment and community independence such as the Ticket to Work program.
• SSA's National Hearing Centers (NHCs) provide the SSA with invaluable flexibility and support to address the hearings backlog. Understanding the value of this flexibility and support, the Committee directs SSA to ensure that its upcoming Administrative Law Judge (ALJ) hiring allocates no less than 25 percent of those newly hired ALJs to NHCs.
• The SSA has committed significant resources to fighting fraud in the Disability Insurance program. To understand if these efforts are effective, the Committee directs the SSA Commissioner to work with the Office of Inspector General to establish a disability fraud rate baseline no later than September 30, 2017.

Senate bill: $32 million more than FY 2016 

Senate Riders:

• The Committee supports SSA's efforts to reduce the backlog of disability claims hearings. Given the successful implementation of the Disability Hearing Pilot Program in Region 1, the Committee encourages SSA to implement the changes on a nationwide level. The changes should include providing advance notice of a hearing date, and requiring claimants to inform SSA or submit written evidence within a certain period in advance of the hearing, subject to the good cause exception. Furthermore, as recommended in the pilot, SSA should consider removing ``new and material evidence'' as a basis for reopening any decision made at the hearing of Appeals Council levels for benefits based on disability. The Committee requests a report on plans for implementation no later than 60 days after the enactment of this act.
• The Committee is dedicated to ensuring that the disabled have access to needed benefits, and strongly encourages SSA to work with us to achieve that goal. The Committee continues to be concerned that SSA uses outdated rules to determine whether or not a claimant meets SSA's definition of disability. The Committee is encouraged by SSA's indication that they are beginning the regulatory process, having already received input from the National Disability Forum, the National Institute of Medicine, as well as various aging and employment experts. These initial steps are well received by the Committee as we continue to work with the Administration to modernize the outdated vocational guidelines into a structure that reflects the 21st century labor market. As this is the first significant overhaul of the grid in nearly 40 years, the Committee requests SSA to submit, no later than 60 days after the enactment of this act, a report on its ongoing efforts to update the grid. In addition, the report shall include a study assessing the feasibility of maintaining a continuous update of the medical vocational guidelines every 10 years.
• The Committee is aware that the Social Security Administration is included in the Muscular Dystrophy Coordinating Committee under the Muscular Dystrophy CARE Act Amendments enacted in September 2014. The Committee expects the agency to make data available on the rate at which persons with Duchenne and Becker Muscular Dystrophy utilize SSA programs, particularly those focused on promoting employment and community independence such as the Ticket to Work Program.
•  While the Committee commends SSA on its continued Program Integrity efforts towards becoming current with regards to the Continuing Disability Review [CDR] backlog, a recent GAO report found that SSA's CDR prioritization models fail to maximize potential cost savings to the trust funds and the Treasury. Within 1 year, and every 3 years thereafter, the Committee directs SSA to review and update the models for prioritization of CDRs with the primary intent of efficiently and effectively maximizing lifetime cost savings to the Federal Government, both for the DI trust fund and Treasury. A detailed, cost-based explanation for the model's prioritization of different CDR types and justification for any updates made should be included in the annual CDR Report to Congress.
• The Committee commends SSA for its work to improve program integrity. However, the Committee is concerned, per previous GAO testimony and report findings from the SSA Office of the Inspector General, that confusion still exists about the Medical Improvement Standard (MIRS) and its exceptions. The Committee directs SSA to submit a report no later than 60 days after the enactment of this act on its progress in educating Disability Determinations Services in the proper application of the MIRS and its exceptions.
• The Committee expects that in resolving claims for disability insurance, SSA's consideration of medical evidence should reflect the degree of relevance and familiarity each medical source has with the effect of an individual's medically determinable impairment(s) on his or her ability to perform Substantial Gainful Activity [SGA]. Since the Treating Physician rule was first published in the Federal Register in 1991, healthcare delivery in the United States has changed significantly and the Treating Physician rule no longer reflects the present reality of the medical personnel with greatest knowledge of an individual's physical and/or mental condition. The Committee encourages SSA to consider revising the controlling weight doctrine in the Treating Physician rule and revising its Acceptable Medical Sources to reflect the new degree of familiarity with their patients, and rigorous training of, nurse practitioners, physician assistants, licensed clinical social workers, audiologists, and speech and language pathologists for the particular impairments that they are well-equipped to treat.
•  The Committee notes that the SSA's OIG has recommended that SSA periodically determine whether VE fees are appropriate to obtain the required level of VE service. The Committee understands that SSA plans to conduct such a review, including benchmark studies of VE fees paid in the national economy and those paid by other governmental and non-governmental organizations, during SSA's acquisition planning process for the contracts to be awarded in fiscal year 2018. The Committee looks forward to an update in the fiscal year 2018 CJ regarding these studies.

Conn Cases Reach Court Of Appeals

     Social Security's effort to cut off the disability benefits of many hundreds of Eric Conn's former clients generated an intense legal challenge. Oral arguments of the first of these to reach the Court of Appeals was held last week. This was on the narrow issue of exhaustion of remedies -- whether Social Security claimants had to go through all the steps at Social Security before challenging the process in the courts. You can listen to the audio of the oral argument and tell us how you think it went.

     One backdrop you need to consider to these legal challenges is the extraordinary right wing tilt to the judges who have heard and will hear these cases. The judges on the District Court bench in Kentucky are all Republican appointees. The judges on the Sixth Circuit Court of Appeals are overwhelmingly Republican appointees. This is quite unlike most federal courts where most judges are Democratic appointees.

Working Longer

     From an article in the Social Security Bulletin, the agency's scholarly publication:

A retired worker's Social Security benefit depends in part on the age at which he or she claims benefits. Working longer and claiming benefits later increase the monthly benefit. Information about trends in employment at older ages and the age at which individuals claim Social Security benefits can help policymakers assess the effectiveness of current policies in influencing the timing of retirement and benefit claims. Both the labor force participation rate among older Americans and the age at which they claim Social Security retirement benefits have risen in recent years. For example, from 2000 through 2015, the labor force participation rate among individuals aged 65–69 rose from 30 percent to 37 percent for men and from 19 percent to 28 percent for women. Since 2000, the proportion of fully insured men and women who claim retirement benefits at the earliest eligibility age of 62 has declined substantially.

Poverty High Among Social Security Disability Recipients

Click on each part to view full size. From the Social Security Bulletin.

      Sorry this is divided into two parts. It extended over two pages in the article.
     SPM stands for Supplemental Poverty Measure, an alternate method for defining poverty.