Can Social Security Maintain Building Security During The Partial Government Shutdown?

     I've posted here that Social Security will be unaffected by the partial government shutdown. It occurs to me that I may have been overbroad. The problem is building security. That's mostly provided by the Federal Protective Service (FPS), which is part of the Department of Homeland Security (DHS) and DHS is part of the shutdown. The FPS security guards at Social Security offices missed a paycheck today. They'll miss another in another two weeks. They're not going to continue working forever for free. Also, there are some Social Security offices that are located inside federal courthouses. While FPS may provide security guards within the Social Security offices inside federal courthouses, the U.S. Marshall Service provides security at the building entrances. The U.S. Marshall Service is part of the Department of Justice and it, too, is part of the partial government shutdown. The federal courts themselves are also part of the government shutdown and will close for routine business a week from today. Will the U.S. Marshall Service continue to provide building security for federal courthouses when the courts, themselves, are closed, especially given that the Marshall's Service has more urgent tasks to complete?

Form Fee Agreement

     While we knew it was coming, it still surprised me to see that Social Security had released a form fee agreement last month that attorneys representing Social Security claimants can use. This is not mandatory. Attorneys and others representing Social Security claimants can always draft their own forms. I guess I was expecting some announcement.

     Here's the key language from the form:

If SSA favorably decides my claim(s) and the decision results in past-due (retroactive) benefits, I agree to pay my representative(s) a fee that does not exceed the lesser of 25 percent of my past-due benefits or the maximum dollar amount allowed under the Social Security Act Section 206(a)(2), or such higher amount set by the Commissioner of Social Security based on the date Social Security Administration (SSA) authorizes my representative’s fee. 

Choose One:

I agree to pay the maximum fee as stated in the preceding paragraph. ($6000 as of 2018).

I agree to pay less than the maximum $________________ or  _____________%.

Read and acknowledge the following: I understand that I, my eligible spouse, any affected auxiliary beneficiary, my representative or the decision maker have the right to protest the fee authorized under this fee agreement, in writing, within 15 days from the authorization.

I understand that my representative may still request a fee even if my case does not result in past-due benefits, or the decision is not favorable. If the fee agreement cannot be approved because there are no past-due benefits or for other reasons, my representative may file a fee petition to request that SSA authorize a fee. I also understand that if there are no past-due benefits withheld, if not enough past-due benefits are withheld, or if my representative is not eligible for direct payment by SSA, I will be responsible to pay the authorized fee to my representative(s) directly. SSA does not authorize out-of-pocket costs and expenses for which I am responsible to pay directly to my representative.

Two-Tiered Fee Agreement

If SSA favorably decides my claim(s) above the ________________ administrative level, this fee agreement is void and my representative(s) may seek a higher fee by filing a fee petition. SSA must authorize this fee.

Escrow/Trust Accounts or Third-party Payments

With my consent my representative(s) has/have or will establish an escrow/trust account in the amount of $__________ 

My representative will receive a fee from another party (e.g., state, county, private entity) for $__________  and I will have no financial responsibility to pay any fee, unless SSA authorizes the total fee

     Note that this is written in fluent bureaucratese. Perhaps, because it is a Social Security form our clients will just accept it without giving us trouble but imagine the typical 10th grade dropout understanding it. Well, if you work at Social Security maybe you can't imagine that and maybe that's why this form is written in such stilted language.  The form is also flatly inaccurate because it indicates that only the Social Security Administration can authorize a fee in a two-tiered fee agreement situation. No, a federal court can also authorize a fee.

Proposed Regs On Removing Inability to Communicate in English as an Education Category Clear OMB

     The Office of Management and Budget has cleared a packet of proposed regulatory changes that the Social Security Administration had submitted on Removing Inability to Communicate in English as an Education Category. This can now be published in the Federal Register as a Notice of Proposed Rule Making (NPRM). After the NPRM is published, the public can comment. Congress can weigh in on the proposal.

Unanimous SCOTUS Opinion In Culbertson — Claimant’s Attorney Wins

     The syllabus of today’s unanimous Supreme Court opinion in Culbertson v. Berryhill:

The Social Security Act regulates the fees that attorneys may charge claimants seeking Title II benefits for representation both before the Social Security Administration and in federal court. For representa- tion in administrative proceedings, the Act provides two ways to de- termine fees. If a fee agreement exists, fees are capped at the lesser of 25% of past-due benefits or a set dollar amount—currently $6,000. 42 U. S. C. §406(a)(2)(A). Absent an agreement, the agency may set any “reasonable” fee. §406(a)(1). In either case, the agency is re- quired to withhold up to 25% of past-due benefits for direct payment of any fee. §406(a)(4). For representation in court proceedings, fees are capped at 25% of past-due benefits, and the agency has authority to withhold such benefits to pay these fees. §406(b)(1)(A). 

Petitioner Culbertson represented Katrina Wood in Social Security disability benefit proceedings before the agency and in District Court. The agency ultimately awarded Wood past-due benefits, withheld 25% of those benefits to pay any attorney’s fees, and awarded Culbertson fees under §406(a) for representation before the agency. Cul- bertson then moved for a separate fee award under §406(b) for the court proceedings, requesting a full 25% of past-due benefits. The District Court granted the request, but only in part, because Culbertson did not subtract the amount he had already received under §406(a) for his agency-level representation. The Eleventh Circuit af- firmed, holding that the 25% limit under §406(b) applies to the total fees awarded under both §§406(a) and (b). 

Held: Section 406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§406(a) and (b). Pp. 5–9. 

(a) Section 406(b) provides that a court rendering a favorable judgment to a claimant “represented before the court by an attorney” may award “a reasonable fee for such representation, not in excess of 25 percent” of past-due benefits. Here, the adjective “such,” which means “[o]f the kind or degree already described or implied,” refers to the only form of representation “already described” in §406(b)—i.e., “represent[ation] before the court.” Thus, the 25% cap applies only to fees for representation before the court, not the agency. 

Subsections (a) and (b) address different stages of the representa- tion and use different methods for calculating fees. Given this statutory structure, applying §406(b)’s 25% cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense. For example, such a reading would subject §406(a)(1)’s reasonableness limitation to §406(b)’s 25% cap—a limitation not included in the relevant provision of the statute. Had Congress wanted agency-stage fees to be capped at 25%, it presumably would have said so directly in subsection (a). Pp. 5–7. 

(b) The fact that the agency presently withholds a single pool of 25% of past-due benefits for direct payment of agency and court fees does not support an aggregate reading. The statutory text provides for two pools of money for direct payment of fees. See §§406(a)(4), (b)(1)(A). The agency’s choice to withhold only one pool of 25% of past-due benefits does not alter this text. More fundamentally, the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court. Pp. 7–9. 

861 F. 3d 1197, reversed and remanded.

Going After The Undocumented In Another Way

     From the Pacific Standard:

The Social Security Administration is planning to pore through wage and tax statements and notify employers when employee names and Social Security numbers are not identified in their records in what appears to be the Trump administration's latest push to target undocumented Americans in the workplace.  

The SSA announced in a recent post on its website that, in the spring of 2019, it would begin to send Employer Correction Request Notices to employers of people whose names and Social Security numbers do not match those in its system. ... 

Previous administrations have sent out such letters before, but were "temporarily halted during litigation and congressional inquiry because it was wrongfully used as a method of immigration enforcement that was found to hurt workers and employers alike, regardless of immigration status," says Sasha Feldstein, policy analyst at the California Immigrant Policy Center. 

"The resurgence of this policy after it was found to be wrongfully used and ineffective is just another example of the administration's attempt to exploit workers." ...

It’s Not Just Tennessee

     The Tennessean has a long report on the use of contract physicians to review — and mostly deny — Social Security disability claims. They’re paid per case and make hundreds of thousands of dollars a year often spending only a few minutes on each case. At least two of the Tennessee contract physicians have a history of felony convictions. Another has had his medical license revoked twice in the last 20 years. Another physician who complained about contract physician usage was retaliated against.

     In related news the Tennessean reports on the terrible backlogs that Social Security Disability claimants face when they appeal one of the decisions based upon such a flawed process.

People With Cystic Fibrosis Apparently Being Targeted By Social Security

     CBS reports on Social Security  cutting off disability benefits to one young woman suffering from cystic fibrosis. Note that people involved in helping those with cystic fibrosis report that this is not an isolated case, that they’ve seen many similar cases lately. 

     I’ve seen this sort of thing many times over the years. Suddenly, I start seeing a run of clients with a particular disorder. I can remember seeing cystic fibrosis cases quite a few years ago but not recently. Mostly, what I see now is multiple sclerosis cases. It’s not that there are suddenly more people with cystic fibrosis or multiple sclerosis. It’s that Social Security has suddenly started turning down or cutting off disability benefits to people suffering from these disorders. There’s been no announcement, no public discussion of the change. The decision is made in private and almost certainly doesn’t involve really high level people. Congress isn’t consulted. It’s never written down.  It’s all done through QA, Quality Assurance. Suddenly, whenever Disability Determination tries to put a claimant on benefits for a particular medical problem, the case gets sent back. Perhaps, since this case is a termination, Social Security has decided, ultra quietly, to target people with cystic fibrosis who are already on benefits for full medical reviews. Once the personnel involved in making disability determinations receive a few such cases back and notice the targeting of those already on benefits they get the picture and start denying the claims and cutting off benefits. Social Security doesn’t have to take responsibility for what it’s doing because it’s all hidden away in individual claimant files which are not available to the public.

Gipping People Out Of All They’re Due

     From a recent report from Social Security’s Office of Inspector General:

From 1 segment of the Master Beneficiary Record, we identified 13,825 primary beneficiaries who submitted their applications for DIB [Disability Insurance Benefits] in FYs [Fiscal Years] 2015 and 2016, received a DIB allowance, and had a prior period of DIB or were previously denied DIB. From this population, we reviewed a random sample of 200 beneficiaries to determine whether their DIB entitlement dates were accurate. 

SSA [Social Security Adminstration] employees did not accurately establish DIB entitlement dates for 23 (12 percent) of our 200 sampled beneficiaries. Employees established incorrect entitlement dates because they did not accurately evaluate all relevant evidence, appropriately identify retroactive entitlement based on prior filings, or correctly calculate one beneficiary’s insured period. As a result, we identified improper payments of $373,906 related to 23 beneficiaries ($291,076 in underpayments to 20 beneficiaries and $82,830 in overpayments to 3 beneficiaries).... 

“[W]e project SSA established incorrect entitlement dates that resulted in almost $657 million in DIB and SSI improper payments. After we offset the improper DIB and SSI payments, the financial impact to the sampled beneficiaries was $272,833. Therefore, we project the resulting financial impact to beneficiaries was about $377 million. ...

     Please note that OIG is saying that far more people are being underpaid than overpaid.