Home School Problems

     From the Home School Legal Defense Association:

After 40 years in the workforce, James Blume began collecting well-earned Social Security retirement benefits, including an additional amount for his son who was still in school. 

When the homeschool teen turned 18 last year, however, the additional benefit stopped—even though the law says he still qualified for the payment. 

“We filled out their form stating that he was still in secondary school,” James Blume recalled, “but this was not sufficient. The Social Security Administration needed more to substantiate [his status] and said they wanted the school to give a statement that he had met their requirements for education.” ... 

Sadly, situations like the one experienced by the Blumes are no longer a rarity. 

According to Senior Counsel Darren Jones, who deals with Social Security Administration (SSA) issues along with other members of Home School Legal Defense Association’s litigation team, the number of cases we’re dealing with in this area has nearly tripled in the past five years. 

The problem typically occurs after a homeschool student turns 18. That’s when the additional benefit granted on behalf of a child usually ends for parents receiving SSA payments for retirement, disability, or the death of a spouse. 

The law says that youth who are still going to school full-time qualify for Social Security students benefits until two months after their 19th birthday. And it’s fairly straightforward for students in traditional schools to show they are still eligible for these payments. ... 

Sometimes problems with Social Security stem not from the complications of individual cases but because of regional policies. 

This explains why several midwestern states, including Michigan and Minnesota, have proven especially troubling. 

Read Jones said that Social Security officials in these jurisdictions have developed local guidelines that discriminate against homeschool students based on a faulty understanding of compulsory education laws. Their view is that, because there is nothing compelling 18-year-olds to remain in school, these teens can’t legally be considered students....

      I saw a case like this maybe 20 years ago. I thought the agency had given up on harassing the home schoolers. I’m especially surprised to read that this may be a regional issue. 

About Time

     I was under the impression that Social Security had long since processed all of the claims based upon same sex marriages that had been held up pending policy decisions. It looks like I was wrong. The agency has just released a batch of cases that had been held up. I don't know what issues there might have been in these cases. I suspect that it could not have been many cases or I would have been aware of them. Perhaps this is just housekeeping, telling staff to check to make sure that they don't have any more cases on hold awaiting policy decisions that were made some time ago.

Final Regs On Removing Inability To Communicate In English As An Education Category To Appear In Federal Register Tomorrow

     Final regulations on Removing Inability to Communicate in English as an Education Category will be published in the Federal Register tomorrow. You can read them today. They will be effective on April 27. Social Security has also announced in the Federal Register that it is rescinding Social Security Acquiescence Ruling 86-3(5) which has to do with the consideration of inability to communicate in English.

     What a proud moment for Social Security -- being enlisted in Donald Trump's war on immigrants.

     Update: In an Orwellian touch, Andrew Saul is touting this as "updating" Social Security.

Three Listings Extended

     The Social Security Administration is extending without change the Medical Listings for Special Senses and Speech, Hematological Disorders, and Congenital Disorders That Affect Multiple Body Systems.

Improvement In Spotting Potential VA Cases

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

... Since SSI is a program of last resort, SSA requires that individuals apply for all other benefits for which they are potentially eligible, including VA benefits. In a January 2010 report,we estimated SSA paid approximately $1.3 billion to 21,520 SSI recipients who appeared to meet VA’s requirements for benefits.To conduct our current review, we identified 1,327 SSI recipients (from 1 of 20 Social Security number segments) who appeared to meet VA’s requirements for benefits. We randomly selected 50 cases for detailed analysis. ...

SSA improved its process of identifying SSI recipients potentially eligible for VA benefits. We estimated approximately 7,960 SSI recipients appeared to meet VA’s requirements, a nd SSA had not documented VA’s final determination for benefits or continued SSI payments even though recipients had not filed for VA benefits. This is 63 percent fewer than the estimated 21,520 SSI recipients in our prior report. ...

Congressional Democrats Oppose Plan To End Use Of Independent ALJs

     A press release:

Top Democrats from the House Ways and Means Committee, House Committee on Oversight and Reform, House Judiciary Committee, and Senate Finance Committee yesterday called for the Trump Administration to withdraw a Social Security Administration (SSA) proposal that would make it more difficult for eligible Americans to receive their Social Security benefits. The proposed changes to the SSA appeals hearing process would compromise claimants’ and beneficiaries’ due process and potentially limit their access to their earned benefits, put unqualified judges in control of deciding appeals cases, and contradict the congressional intent of the law governing such proceedings.

“SSA’s proposed rule would erode due process for Americans who are appealing a denial of Social Security or Supplemental Security Income (SSI), threatening access by eligible individuals to disability, retirement, and survivors’ benefits,” the members wrote in their comment letter. “Replacing independent Administrative Law Judges (ALJs) with Administrative Appeals Judges (AAJs) is contrary to congressional intent for impartial SSA hearings, and it is not supported by the rationale asserted in the proposed rule.”

The letter was signed by House Ways and Means Committee Chairman Richard E. Neal (D-MA), House Committee on Oversight and Reform Chairwoman Carolyn B. Maloney (D-NY),  House Judiciary Committee Chairman Jerrold Nadler (D-NY), House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT), House Ways and Means Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL), House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law Chairman David N. Cicilline (D-RI), Senate Finance Committee Ranking Member Ron Wyden (D-OR), and Senate Finance Social Security Subcommittee Ranking Member Sherrod Brown (D-OH).

The full letter can be found HERE.

Constitutionality Of Social Security Commissioner At Issue Before Supreme Court But Court Received Almost No Briefing On The Issue

     I thought I would look through the briefs filed in Selia Law v. CFPD, the case pending at the Supreme Court in which the constitutionality of agency heads who can only be removed by the President for cause, which would be the case with the Commissioner of Social Security, to see if the parties or any of the amici who filed briefs tried to distinguish the Consumer Finance Protection Board (CFPB) from Social Security or even discussed Social Security. Here's what I found.

     From the primary brief for Selia Law:

 Similarly, the legitimacy of the Social Security Administration has been contested ever since it was restructured as an independent agency in 1994, with President Clinton stating at the time that the “single Commissioner” structure posed a “significant constitutional question” and noting his willingness “to work with the Congress on a corrective amendment.” Presidential Statement on Signing the Social Security Independence and Program Improvements Act of 1994, 2 Pub. Papers 1471, 1472 (Aug. 15, 1994); Breger & Edles 1207-1208 & n.492. Again, there is less reason for concern than with the CFPB, because the Social Security Administration’s primary function is to adjudicate claims for benefits, rather than to exercise core executive power by bringing enforcement actions against private entities.

     From a footnote in the amicus brief filed by the Chamber of Commerce in support of Selia Law:

Apart from the Bureau, the Federal Housing Finance Agency (“FHFA”), the Office of Special Counsel (“OSC”), and the Social Security Administration (“SSA”) also have single heads who are removable only for cause. But these agencies do not enforce laws against private persons—FHFA, for example, oversees government-sponsored entities, two of which are in conservatorship with the FHFA as the conservator. 12 U.S.C. § 4511(b); FHFA, History of Fannie Mae & Freddie Mac Conservatorships, goo.gl/XzeAYr; see also PHH, 881 F.3d at 174-76 (Kavanaugh, J., dissenting).

     From a footnote in the amicus brief filed by several Republican led states in support of Selia Law:

To be sure, history includes some agencies headed by single individuals who have served fixed terms. See SELIN &LEWIS, supra, at 48-49. But those agency heads typically lack for-cause removal protection. Id. Apart from the FHFA and CFPB, only two agencies (the Office of the Special Counsel and the Social Security Administration) have single heads with removal protections, and those two have jurisdictions limited to enforcing federal law against federal officers or pertaining to federal spending. Id. For the reasons Petitioner [Selia Law] explains (at 23-24) [See above] , the legitimacy of these agencies is also subject to question.

     That's it, folks. No brief was filed sounding the alarm that this case could cause chaos at the Social Security Administration. The Supreme Court has been told that the legitimacy of the position of Commissioner of Social Security may be at stake but this certainly hasn't been emphasized, mainly because the briefs have all been filed by those trying to invalidate the CFPB, a bete noire for business groups and their allies in the Republican Party. The briefs make what seems to me to be a weak effort to distinguish the Commissioner of Social Security from the head of the CFPB. Social Security doesn't enforce laws against private persons? Of course it does. The agency has investigative units all over the country! Why is adjudicating claims less important than stopping consumer fraud? Social Security affects far more people far more directly than the CFPB.

Is The Position Of Commissioner Of Social Security Unconstitutional?

     From Reuters:

Facing an existential threat at the U.S. Supreme Court, which will hear oral arguments on March 3 in a constitutional challenge to the unusual structure of the Consumer Financial Protection Bureau, the CFPB has found an unlikely champion. The Trump administration believes that the bureau's lone director is unconstitutionally shielded from accountability to the president, yet the Justice Department’s final brief before oral argument urged the Supreme Court not to issue a ruling that will halt the CFPB’s “critical work." ... [The case is Seila Law v. CFPB .]

Seila’s lawyers ... had asked the Supreme Court to decide whether the provision that shields the CFPB director from being removed without good cause runs afoul of the separation of powers doctrine. The Justice Department and the CFPB, repudiating the CFPB’s longtime defense of its structure, backed Seila’s petition, arguing that the provision was an unconstitutional restraint on the president....

DOJ and Seila also agreed that Clement’s attempt to fit the CFPB’s structure within the penumbra of 1935’s Humphrey’s Executor v. U.S. falls short. In that case, the Supreme Court upheld the constitutionality of the Federal Trade Commission, but Seila and DOJ said the court’s analysis applies only to “quasi-judicial” agencies headed by several commissions, not to the CFPB’s lone director. They also hinted that if Humphrey’s Executor controls this case, then the Supreme Court should consider overruling its precedent, which Seila described as “erroneous and already repudiated.”  ...

     The Social Security Administration is also headed by a lone director who can only be removed "... pursuant to a finding by the President of neglect of duty or malfeasance in office." If, as this Administration is arguing, the position of head of the CFPB is unconstitutional, I see no way that the position of Commissioner of Social Security isn't also unconstitutional.
     If the position of Commissioner of Social Security is unconstitutional are regulations adopted by unconstitutional Commissioners valid? What about decisions made under a delegation of authority from an unconstitutional Commissioner such as those made by Administrative Law Judges and Appeals Council members? This isn't a problem that can be easily solved in the same way that the problem with how ALJs are appointed was solved.
     If the Supreme Court rules that positions such as that of the Commissioner of Social Security are unconstitutional, the Social Security Administration can no longer be an independent agency, at least not without a multi-member board heading it and maybe not then.
     This could put a real crimp in Andrew Saul's plans for a batch of far reaching regulations.