A Novel Legal Standard

     Social Security will publish an Acquiescence Ruling to Hicks v. Commissioner in the Federal Register tomorrow. This has to do with the reviews of Eric Conn cases.

     They intend to apply it only in the 6^th Circuit. Here’s what I believe is the key language:

Our adjudicators will decide whether there is a reason to believe that fraud or similar fault was involved in providing evidence in the individual’s case. We define a “reason to believe” as reasonable grounds to suspect that fraud or similar fault was involved in the application or in the provision of evidence. The “reason to believe” standard requires more than a mere suspicion, speculation or a hunch, but it does not require a preponderance of evidence. Adjudicators may make reasonable inferences based on the totality of circumstances, such as facts or case characteristics common to patterns of known or suspected fraudulent activity. For us to disregard evidence, it is not necessary that the affected beneficiary or recipient had knowledge of or participated in the fraud or similar fault.

     I don't ever recall seeing a legal standard of more than a hunch but less than a preponderance. My gut feeling is that such a standard can't be constitutional.

ALJ Union Goes To Court To Challenge Federal Services Impasses Panel

     From Government Executive:

A union representing administrative law judges at the Social Security Administration on Thursday asked a federal appeals court to halt an impasses panel's proceedings with the agency, after the panel and another labor-management entity failed to respond to a constitutional challenge.

Last October, the Social Security Administration declared an impasse in negotiations over a new contract with the Association of Administrative Law Judges, following a combined six months of negotiations and mediation, and asked for the Federal Service Impasses Panel to assert jurisdiction over the proceedings.

Later that month, the union objected to the impasses panel getting involved, arguing that the way its members are appointed is unconstitutional. The union’s argument echoes multiple ongoing lawsuits that claim that given the power granted to the impasses panel, as well as lack of oversight and parties to appeal its decisions, the Senate must confirm panel members, in accordance with the Appointments Clause of the Constitution.

But in January, the impasses panel asserted jurisdiction and declined to acknowledge the union’s objections. The union then filed a motion to the Federal Labor Relations Authority requesting a stay of proceedings and that the FLRA issue a decision on the merits of its constitutional challenge. Since then, the FLRA has not even acknowledged receipt of the union’s requests, while the impasses panel has set a Feb. 7 deadline for the union to submit its last best offers on the eight contract articles before the panel. ...

The Trump administration last November sought to blunt legal challenges to the impasses panel’s makeup by issuing a presidential memorandum delegating the president’s authority to fire panel members to the Federal Labor Relations Authority. Legal experts have doubted whether the memorandum would hold up to scrutiny, describing it as “diametrically opposed to the letter and the spirit” of the law establishing both panels. ...

Probation For Threatening To Blow Up Field Office

     From Michigan Live:

U.S. District Judge Thomas L. Ludington on Thursday, Jan. 30, sentenced Latashya L. Brooks to two years of probation. While on probation, Brooks must participate in a mental health treatment program, take all prescribed medications, and submit to psychological evaluations as directed by her probation officer. 

Brooks in October appeared in the federal courthouse in downtown Bay City and pleaded guilty to interstate communication to make a bomb threat. The charge is punishable by up to 10 years’ imprisonment, a fine of $250,000, and three years of supervised release.

The plea agreement stated Brooks’ sentencing guidelines were one year to 18 months. Court records show Judge Ludington departed downward from the guidelines due to Brooks’ “limited mental conditions,” “reduced mental capacity,” and it being her first criminal conviction. 

The agreement states that Brooks was upset over the Social Security Administration withholding things from her checks. On May 3, she called the administration office at 611 E. Genesee St. in Saginaw and spoke with an employee. 

During the call, Brooks threatened to “blow up your (expletive)ing building and accept the consequences,” the plea agreement states. When the employee told Brooks she should not threaten government buildings, Brooks replied that she didn’t care and would “do the time,” the document states. ...

Did It Matter?

     About two and a half years ago Social Security changed its policies on voluntary remands, that is cases where the agency agrees that a case on appeal to the United States District Court should be remanded to the agency.

     I'm curious. Has there been a change in the rate at which Social Security agrees to voluntary remands since that change in policy? Has there been a change in what they do after voluntary remands? Did the policy change matter?

Fichtner Nomination To SSAB Advances

     The Senate Finance Committee has scheduled a hearing for February 5 on three nominations. One of them is the nomination of Jason J. Fichtner to be a member of the Social Security Advisory Board (SSAB).

Rep Payee Fraud In Washington State

     From a press release:

A Kitsap County [WA] man who ran a business serving as a financial guardian for elderly or disabled clients pleaded guilty today in U.S. District Court in Tacoma to Social Security Fraud – Representative Payee Fraud. WAYNE JEROME HOUSTON, 61, of Port Ludlow, Washington owned and operated Cross Point Services LLC, a guardianship organization for disabled and vulnerable adults.  ...

According to the plea agreement, HOUSTON and his company were responsible for managing the financial affairs of 15-20 clients a month.  HOUSTON had access to the clients’ bank accounts so he could pay rent, utilities and other bills for them.  Social Security benefits were paid into some of the accounts, for at least 13 clients who required a representative payee to manage their benefits.  HOUSTON was the representative payee for at least 13 disabled clients.  Beginning in 2010, HOUSTON used his position as guardian to write checks from the victim accounts to himself, to Cross Point Services, or to cash, and used ATMs to withdraw money from client accounts and used it for his own expenses.  HOUSTON targeted clients who had significant income or resources so that the theft was less likely to be detected.

The amount stolen is still under investigation but is between $150,000 and $280,941.   Of that, approximately $83,000 was Social Security Administration benefit funds. ...

Big HITECH Setback

     An e-mail message from the Department of Health and Human Services (HHS) Civil Rights Division listserver:

On January 25, 2013, HHS published a final rule entitled “Modifications to the HIPAA Privacy, Security, and Enforcement Rules Under the Health Information Technology for Economic and Clinical Health Act, and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules.”  (2013 Omnibus Rule).  A portion of that rule was challenged in federal court, specifically provisions within 45 C.F.R. §164.524, that cover an individual’s access to protected health information.  On January 23, 2020, a federal court vacated the “third-party directive” within the individual right of access “insofar as it expands the HITECH Act’s third-party directive beyond requests for a copy of an electronic health record with respect to [protected health information] of an individual  . . . in an electronic format.” Additionally, the fee limitation set forth at 45 C.F.R. § 164.524(c)(4) will apply only to an individual’s request for access to their own records, and does not apply to an individual’s request to transmit records to a third party.

The right of individuals to access their own records and the fee limitations that apply when exercising this right are undisturbed and remain in effect.  OCR will continue to enforce the right of access provisions in 45 C.F.R. § 164.524 that are not restricted by the court order.  A copy of the court order in Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020), may be found at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0040-51.

     This means that Ciox and other similar companies are now bound only by state laws limiting how much they can charge. It's nearly hand to hand combat against these ripoff artists.

Lawsuit On Impostor Phone Calls

     From a press release (emphasis added):

The Department of Justice filed civil actions for temporary restraining orders today in two landmark cases against five companies and three individuals allegedly responsible for carrying hundreds of millions of fraudulent robocalls to American consumers, the Department of Justice announced.  The Department of Justice alleges that the companies were warned numerous times that they were carrying fraudulent robocalls — including government- and business-imposter calls — and yet continued to carry those calls and facilitate foreign-based fraud schemes targeting Americans.  The calls, most of which originated in India, led to massive financial losses to elderly and vulnerable victims across the nation. ...

The two cases announced today contain similar allegations.  The defendants in one case are Ecommerce National LLC d/b/a TollFreeDeals.com; SIP Retail d/b/a sipretail.com; and their owner/operators, Nicholas Palumbo, 38, and Natasha Palumbo, 33, of Scottsdale, Arizona.  The defendants in the other case include Global Voicecom Inc., Global Telecommunication Services Inc., KAT Telecom Inc., aka IP Dish, and their owner/operator, Jon Kahen, 45, of Great Neck, New York.  In each case, the Department of Justice sought an order immediately halting the defendants’ transmission of unlawful robocall traffic.  A federal court has entered a temporary restraining order against the Global Voicecom defendants. ...

In the cases announced today, the United States alleges that the defendants operated voice over internet protocol (VoIP) carriers, which use an internet connection rather than traditional copper phone lines to carry telephone calls.  Numerous foreign-based criminal organizations are alleged to have used the defendants’ VoIP carrier services to pass fraudulent government- and business-imposter fraud robocalls to American victims.  The complaints filed in the cases specifically allege that defendants served as “gateway carriers,” making them the entry point for foreign-initiated calls into the U.S. telecommunications system.  The defendants carried astronomical numbers of robocalls.  For example, the complaint against the owners/operators of Ecommerce National d/b/a TollFreeDeals.com alleges that the defendants carried 720 million calls during a sample 23-day period, and that more than 425 million of those calls lasted less than one second, indicating that they were robocalls.  The complaint further alleges that many of the 720 million calls were fraudulent and used spoofed (i.e., fake) caller ID numbers.  The calls facilitated by the defendants falsely threatened victims with a variety of catastrophic government actions, including termination of social security benefits, imminent arrest for alleged tax fraud and deportation for supposed failure to fill out immigration forms correctly. ...

     So, why aren't they indicting the U.S. residents in this case? It makes you wonder about the strength of the evidence.