Regs On Evaluation Of Medical Evidence On Hold

     On January 5 the Office of Management and Budget (OMB) cleared Social Security's packet of final regulations changes on the evaluation of medical evidence. Ordinarily, once regulations are approved by OMB, they're published in the Federal Register within a few days but these final regulations have still not appeared in the Federal Register. I think it's unlikely that these will be published at this time. If they were published, the incoming Trump administration would probably prevent them from coming into effect until they could be reviewed. These regulations may end up exactly the same after they're reviewed but it may be many months until that review is complete.
     Update: I spoke too soon. These will be published in the Federal Register tomorrow. However, this may make little difference. These regulations cannot come into effect until 30 days after publication in the Federal Register. The new President is likely to issue an order preventing any new regulation from coming into effect until it has been reviewed by the new administration.

Representing Social Security Disability Claimants Is Just A Laughfest

     This happened some years ago. A client told me about being in the emergency room several times recently with chest pain so I wrote to request the emergency room reports. The reports came in. The client had not been admitted. The chest pain seemed to be esophagitis. In case you don't know, esophageal pain is quite common and it can seem very, very much like angina. It sometimes seems to me that everyone eventually ends up in the emergency room because of esophagitis.

      There was another emergency room report that I wasn't expecting concerning a different problem. My client wanted help removing a vibrator that was stuck up his anus. Seriously. A little experimentation with the help of his girlfriend according to the report. We respect our clients but we got a chuckle out of that one until we got a call later that day saying that the client had just died of a heart attack. Seriously.

How Did He Get Away With It For So Long?

     From the AP:

A former Tampa Bay area postal employee faces up to 15 years in federal prison for stealing more than $2 million in Social Security checks.

A U.S. Attorney's Office news release says jurors found 48-year-old Stacy Darnell Mitchell guilty Wednesday of theft of government property and theft of mail. His sentencing date hasn't been set.

Mitchell was a mail handler for more than 15 years at the processing and distribution center in St. Petersburg. Authorities say Mitchell stole more than 3,000 Social Security benefit checks from the facility from January to October 2012. The checks were sold and cashed at various convenience stores and check cashing businesses.

A Farewell Message

From: Colvin, Carolyn
Sent: Friday, January 13, 2017 11:49 AM
Subject: Farewell Message from the Acting Commissioner

TO: All SSA and DDS Employees

I want you to know that I have advised President Obama that I will be leaving my position as Acting Commissioner of Social Security at the end of the President’s term on Friday, January 20^th.  

I have devoted my life to public service, serving in positions at all levels of government, but serving here with all of you has been the greatest honor of my life.  The times I have treasured the most are the times I have been able to visit your offices to speak with you about the important work we do, and about your dreams and aspirations.  Those are some of my most joyous and inspirational times at SSA.  You are truly the greatest public servants in government. 

Social Security is the most important social program ever implemented in this country.  The agency distributes almost $1 trillion to 65,000,000 people each year.  Millions of our fellow Americans rely on these benefits and the services we provide.  Indeed, many of our seniors would be in poverty if they did not receive their Social Security benefits each month.

Never forget, you make a positive difference every day in the lives of the tens of millions of people who visit our offices, call us on the telephone, or rely on our online services each year.  We can be proud of our numerous accomplishments which represent our shared legacy.  I cannot express the pride I feel in having been part of this incredible work.  Remember, each day, thousands and thousands of individuals may experience, for even a moment, hope, and if we are lucky, a better life, because of something you have been able to do for them.

I want to personally thank you again for the outstanding service you provide and for the support and guidance you have given me.  I wish you much happiness and success in all of your future endeavors. 

Carolyn

OIG Report On Repeated Overpayments

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

We found 70 (61 percent) of the Old-Age, Survivors and Disability Insurance (OASDI) beneficiaries and 59 (53 percent) of the Supplemental Security Income (SSI) recipients in our sample [of claimants who already had a history of three or more earnings related overpayments] were repeatedly overpaid because of their earnings. We believe SSA could have found these 129 individuals at fault for causing or contributing to the overpayments because of their repeated failure to comply with Agency earnings reporting requirements. SSA also could have further developed these cases to determine whether punitive actions could have been used as a deterrent against future overpayments. However, we found the Agency did not apply these actions to any of the individuals in our sample. 

Based on our sample, we project SSA overpaid 

• 49,420 OASDI beneficiaries almost $966 million and 
• 94,480 SSI recipients almost $924 million. 

As of February 2016, we estimate SSA had not collected almost $178 million of these OASDI overpayments and more than $447 million of these SSI overpayments.

     Social Security had identified these overpayments and has had some success in collecting them. What more does OIG want? They say they want people punished. There are provisions in the Social Security Act that allow punishment. I've noticed that OIG really likes to recommend that others use those provisions to punish people. However, when OIG has the opportunity to punish people itself, they don't seem to me to be quite so bloodthirsty. It's real people and things get messy. The overpayments are often small, the claimants not too bright and the fault not so clear. Punishment seems like overkill.
     By the way, note that 39% of the overpayments to Title II recipients and 47% to SSI recipients weren't the fault of the claimant. Let that sink in. The claimants were reporting earnings and Social Security didn't do what it was supposed to do a lot of the time. You also have to wonder how many of the cases where OIG wants to punish claimants are cases where the claimant reported the earnings but Social Security never kept a record of them reporting earnings. That happens. If you just look at computer records, it looks like the claimants were bad actors but when you start talking to the claimants, it's not so clear. This is just one of the reasons why Social Security isn't all that interested in imposing punishments.
     But, hey, this kind of report pleases Congressional Republicans and that's what it's all about. Right?

Chevron In Danger?

     From TPM:

… Yesterday, the House of Representatives passed a bill that could cripple the ability of government to regulate private industry.  

The bill modifies the Administrative Procedure Act … 

The Supreme Court ruled in 1984 that the courts could only overturn rulings that were “arbitrary and capricious, an abuse of discretion.” In other words, the courts would have to defer to the regulatory agencies in finding whether a ruling was justified. But the Republicans in the House passed a law that would allow the courts to rule without giving deference to the regulatory agencies. A Republican court could, for instance, overrule decisions of the Food and Drug Administration or the Environmental Protection Agency on concocted Constitutional grounds – say, by arguing that it violated the “takings” clause of the Constitution. That could cripple the regulatory agencies. ...

     Apparently, this would end the Chevron deference. How could this affect Social Security? It would make it far easier to challenge the agency's interpretation of the statutes. Any change in the APA is hugely important.

Interesting Question

     I've been doing Social Security work since 1978 so it's not often I get a question that I haven't heard before but here's a new one on me. Let me explain some background first. There's a 24 month waiting period for Medicare after Social Security Disability Insurance Benefits begin and that waiting period only begins after the five month waiting period for cash benefits to start. Yes, it's brutal. As long as the waiting periods are, many cases are delayed long enough that the claimant is entitled to back Medicare benefits. To get Medicare Part B, the part that pays for outpatient medical treatment, you have to pay monthly premiums. What happens in cases with retroactive Medicare entitlement is that the Medicare Part B doesn't go back unless you pay the back premiums. The question is can you take the retroactive Part B for only part of the time period for which you're eligible for it? This claimant's case had gone on for a very long time. The period of retroactive Medicare entitlement is about 30 months. The claimant had health care insurance until about nine months ago. She feels she won't get much value out of retroactive Medicare Part B until her health care insurance ended so she only wants the retroactive Medicare Part B for the last nine months instead of the entire 30 month time period. The difference in retroactive Part B premiums is over $2,000 so this isn't an academic question. Does anyone have experience with this question?

Social Security Headcount Goes Down

The Office of Personnel Management (OPM) has posted updated figures for the number of employees at the Social Security Administration:

• September 2016 64,394 
• December 2015 65,518
• September 2015 65,717
• June 2015 65,666
• March 2015 64,432
• December 2014 65,430
• September 2014 64,684
• June 2014 62,651
• March 2014 60,820
• December 2013 61,957
• September 2013 62,543
• June 2013 62,877
• March 2013 63,777
• December 2012 64,538
• September 2012 65,113
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• September 2009 67,632
• December 2008 63,733
• September 2008 63,990