GAO Report Critical Of Social Security's Treatment Of Disability Claims Complicated By Substance Abuse

     From a recent report by the Government Accountability Office (GAO):

... This report examines (1) what is known about the relationship between trends in prescription opioids and DI claims, and (2) how SSA [Social Security Administratino] considers potential prescription opioid misuse in its DI [Disability Insurance] eligibility decisions. GAO analyzed county-level data on opioid prescriptions and DI claims from 2006 through 2017; interviewed program staff involved in DI eligibility decisions in Alabama, Kentucky, and West Virginia, selected because of their high rates of opioid prescriptions and percentage of the adult population on DI; and reviewed case files for DI beneficiaries identified by the Centers for Medicare & Medicaid Services as being at risk for prescription opioid misuse or abuse. ... 

The numbers of opioid prescriptions and claims for the Social Security Administration’s (SSA) Disability Insurance (DI) program have each declined nationally in recent years, but rates vary widely across the country. National trends show both peaking between 2010 and 2014 and then declining. GAO’s analysis shows counties with the highest rates of both were concentrated in the Southeast (see figure). After accounting for economic, demographic, and other factors, GAO found that counties with higher rates of opioid prescriptions tended to have higher rates of DI claims from 2010 through 2017. These rates were also correlated with other factors. For example, counties with higher rates of each tended to have higher poverty rates. However, GAO was unable to determine whether there is a causal relationship between rates of opioid prescriptions and DI claims or other factors, given readily available data.

Program staff are required to evaluate and document substance use disorders (including opioids not taken as prescribed) when making certain DI eligibility decisions. Specifically, staff are required to evaluate potential substance use disorders for certain DI claims and deny benefits, for example, if the claimant would not be considered disabled if they stopped using drugs or alcohol. In addition, staff are generally required to document the rationale for their decision so that another reviewer can understand how they made the decision. However,staff in five of the six offices GAO visited in three states were confused about when to evaluate substance use disorders, and nine of 15 case files that GAO reviewed in which an evaluation was conducted did not have a documented rationale. SSA officials acknowledged the need to clarify policies on when to evaluate substance use disorders, and that a poorly documented rationale could lead to reversals or remands of decisions. Without ensuring that SSA’s policies are understood and that staff document their rationale, the agency may expend resources re-working cases and, in turn, delay benefits to individuals eligible for assistance.  ...

     I imagine that Social Security will find a simple way of responding to GAO's findings. They'll just make the current rule -- when in doubt, deny -- even more explicit. They certainly won't do anything to help people with dual diagnoses -- substance abuse plus another physical or mental impairment. If anything, the GAO report seems only to be telling Social Security to find a better way of checking off boxes rather than encouraging them to take a serious look at the problem.
     The GAO itself could have taken a more in-depth look at the problem. They fail to mention that the dual diagnosis issue primary concerns one psychiatric illness -- bipolar disorder -- which has a dramatic overlap with substance abuse strongly suggesting a genetic link. It's literally impossible to tease out what's caused by bipolar disorder from what's caused by substance abuse because it's all one disease entity. The GAO investigators also failed to understand that the Social Security Administration itself changed its policies in 2013 to put the burden on the claimant to prove a negative -- that their substance abuse isn't material to the determination of disability. If you're not a lawyer, let me clue you in on something well understood by lawyers. It's impossible to prove a negative. For instance, I can tell you that I've never used crack cocaine -- I haven't -- but how can I prove it? That's the whole point of Social Security's current policies. Put an impossible burden on the claimants and then deny them. The GAO report says in a footnote that Social Security told them that Social Security Ruling 13-2p, the policy change I mentioned earlier, really didn't change anything. That's seriously revisionist history. The policy in effect before the ruling was 180 degrees different. It's like this every time Social Security changes its policies. The agency insists that it hasn't changed its policies when it's obvious that it has.

Inauguration Day 2021 Is A Year From Today

New CCD Positions

     The Coalition for Citizens with Disabilities (CCD), the major umbrella group of organizations that help the disabled, has issued three recent statements concerning Social Security. CCD opposes the plan to increase the frequency and alter the targeting of continuing disability reviews. CCD supports expanding Supplemental Security Income (SSI) to the U.S. territories of Puerto Rico, Virgin Islands, Guam and Samoa. (By the way, does anyone know the status of litigation on this issue?) CCD supports ending the five month waiting period for Disability Insurance Benefits.

Final 2019 Trust Fund Numbers

     Social Security has posted the final calendar year 2019 numbers for the Social Security Disability Insurance Trust Fund. The fund declined by about $4 billion last year. As of the end of the year, the fund balance was $93 billion. The Old Age and Survivors Insurance Trust Fund gained $6.4 billion in the last calendar year. Its balance stands at $2.8 trillion.

Social Security Wants To Study Attorney Fee Alternatives

     From a contracting notice posted by the Social Security Administration:

... Disability claimants who have an Appointed Representative (AR) have an increased likelihood of award at the hearings level, but not earlier in the disability adjudication process.  Experts have suggested that the current attorney fee structure, under which representatives receive 25 percent of claimants’ back benefits up to $6,000, encourages representatives to work with claimants later in the disability adjudication process. 

In April of 2019, SSA convened a Technical Expert Panel (TEP) to discuss a potential demonstration that would alter the incentives for representatives to work with applicants at the reconsideration level of adjudication.  The TEP discussed alternatives to the current attorney fee structure as well as opportunities to improve representatives’ access to case information and documentation.  The TEP provided SSA with recommendations to test as part of a future demonstration to increase representation at the reconsideration level and improve the quality of that representation to help SSA arrive at the correct outcome as soon as possible.

SSA is considering a few options for alternative fee structures. One, a minimum fee, that would ensure that ARs receive at least a certain amount for all awarded claims, or 25 percent of back benefits, whichever is greater, up to $6,000. This minimum amount would likely be around $2,500. We consider this level because it is close to the current average fee of $2,900. In theory, this guaranteed minimum could induce ARs to take some claims that they otherwise would not have taken, while minimizing the risk of paying extra for claims that the ARs would have taken under current policy.

A second option is a flat fee for awarded claims. This flat fee would likely be around $3,000, for the same reasons mentioned earlier. In this case, the flat fee is slightly above the average payment to increase representation. 

The AR Demonstration (ARD) will test at least one alternative fee structure and will evaluate the impact and quality of representation at the reconsideration level of adjudication and other outcomes. ...

     See also this study that was completed last summer.
     The interesting thing is that raising the fee cap isn't even being considered. I think that would help more claimants get representation than a minimum fee. The problem isn't so much that attorneys are scared of getting a low fee as it is that attorneys are scared of getting no fee. Raise the minimum fee and the risk-reward ratio is altered so that we take on more iffy cases. I think this proposal would only affect my behavior in cases such as a claimant who is already receiving early retirement benefits and that's not that much left to get for them if disability benefits are approved. It would not affect my behavior in cases at the initial and reconsideration levels since I already take on those cases. It might affect the behavior of others who don't take on cases at the initial and reconsideration levels but I think most already are taking on cases at the initial and reconsideration levels. Right now the group that has the most difficulty obtaining representation are those under the age of 50. This proposal would do nothing for them. The flat rate fee would be especially bad since it would make the risk-reward ratio even worse. We would still have the same risk but the reward for a win would be less. It's the risk-reward ratio that Social Security needs to be looking at.

Update On The Larson Bill

     From Politico:

... Rep. John Larson of Connecticut, a senior Democrat on the House Ways and Means Committee, has a bill, H.R. 860 (116), that would hike Social Security benefits across the board, paired with tax increases in the neighborhood of $1 trillion over a decade. Larson has pushed for Ways and Means to mark up his measure and for the full House to take up the bill — so far unsuccessfully, despite the fact that the vast majority of House Democrats have signed on to the proposal.

Larson’s fellow Democrats are especially queasy about the impact that his measure’s hefty payroll tax increases would have on lower-income workers, which is one reason the measure — which would only be a messaging bill this year, because it stands little chance of getting much attention in the Senate — has stalled in recent months. 

Larson said Wednesday that he’s changing the bill in response to his colleagues’ concerns about lower-income workers. That includes employing the Earned Income Tax Credit to ensure that certain workers making $50,000 or less essentially won’t owe any payroll taxes and expanding the EITC eligibility for childless workers, as Ways and Means did in legislation last year. He added that he fully expects Ways and Means to consider the measure in the coming weeks. (It should be noted that Larson previously said he expected a markup to happen later in 2019.)  ...

     Larson has a tight focus on his bill. Is that somehow preventing him from scheduling traditional oversight hearings? I don't know why it would but I have no other explanation for the lack of oversight hearings. It's not like his bill has any chance of becoming law in this Congress.

The Marriage Penalty

     From the Columbus Dispatch:

People with developmental or intellectual disabilities often face the prospect of losing a portion of their disability benefits if they marry. Sherri and Bill Adams finally were able to wed this month after a years-long fight, and they’re pushing for a law to help others. ...

But the so-called marriage penalty remains an obstacle for many couples in the United States. The new Mr. and Mrs. Adams, who took their fight to marry public with an online petition drive in 2016, vow to keep pushing for what they and others see as a matter of civil rights.

“Although we found a loophole in our situation, we will not give up,” Bill said. “There are a lot of couples who are still unable to get married, and that is still not right.”

The disability community’s long-running battle for change gained support last year with bipartisan legislation introduced in Congress to protect the federal benefits of people with intellectual or developmental disabilities who wish to marry. If enacted, the Marriage Access for People With Special Abilities Act would keep Supplemental Security Income benefits for an individual from being affected by marital status, and ensure access to Medicaid benefits as long as the person qualifies for SSI. ...

After Sherri went to the Social Security office last year for a new card, she and Bill discovered that they could avoid a devastating reduction in their modest benefits (together they receive less than $2,000 a month) if Sherri received a portion of her disability income as a survivor benefit based on her deceased father’s Social Security.

Not many couples have that option or even know it exists.

Licking County residents Jordan Boring, 36, and Sarah Burkett, 34, had a lovely wedding in December 2018, but the ceremony didn’t culminate in a legal union.

“It’s not fair,” said Margie Goodin, a former site coordinator at the disabilities-services program where the two met. “All they want is to be able to spend every day together.”

Jordan and Sarah, both of whom have Down syndrome, opted for a commitment ceremony to preserve crucial benefits. They also have not been able to get a place together because combining households could jeopardize their benefits, said Sarah’s mother, Patti Burkett. ...

      There are actually two penalties. If both members of a married couple receive Supplemental Security Income (SSI), they receive a lower amount than if they are not married. It's worse for Disabled Adult Child (DAC) benefits on the account of a parent. DAC recipients become completely ineligible for benefits after marriage. However, if both are eligible for DAC they can keep their benefits after marriage. It appears that Mr. and Mrs. Adams are eligible for DAC and, therefore, able to keep their benefits.

RRB Case At Supreme Court May Have Implications For Social Security

     The Supreme Court has agreed to hear Salinas v. Railroad Retirement Board, a case that may have implications for Social Security. Maybe before describing Salinas, I need to make sure everybody knows what the Railroad Retirement Board (RRB) is. RRB is an agency created around the same time as what was then called the Social Security Board. RRB administers some benefits such as unemployment that the Social Security Administration (SSA) does not now administer. However, in most respects the RRB statutes and regulations are almost identical to SSA's. Because it's much smaller, it's almost always RRB that is affected by SSA litigation. Salinas, however, is the exception to that pattern. Here's the stated issue in Salinas:

Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a “final decision” subject to judicial review.

     If you're an experienced Social Security attorney that issue should sound familiar. It has come up in Social Security litigation. SSA has argued over the years that a refusal to reopen a prior decision cannot be reviewed in the federal courts because it's not a final decision after a hearing even though the decision is final and even though there was a hearing. That's the argument that RRB has made in Salinas. The recent Supreme Court decision in Smith v. Berryhill suggests that Salinas may have a case.