OMB/OPM Memo On Office Re-Opening

     The Office of Management and Budget (OMB) and Office of Personnel Management (OPM) have issued a joint memorandum to federal agencies providing guidelines on resuming more normal operations once the immediate threat posed by Covid-19 declines.

     One important point is that there's not going to be some national order to re-open all the agencies all over the country at the same time regardless of local conditions and regardless of state and local stay at home orders. The memo says that "State and regional assessments should be the starting point for discussions and decisions related to Federal agency operations, but additional factors may include: school and daycare closures, mass transit availability, parking availability, facility requirements, and missions." That doesn't require deference to state and local stay at home orders but it certainly suggests that will be the case.

     The memo also indicates that it may be necessary for agencies to apply different rules for employees 65 and older because they face heightened risks from Covid-19. 

     I wonder if Social Security should also apply different rules to claimants who are older or immunocompromised. Maybe they should be afforded telephone hearings even after in person hearings are resumed. I don't know what the odds are for a person who gets Covid-19 while on immunosuppressive medication because of a history of an organ transplant but they're probably very bad.

Dependents Won't Get Stimulus Payments Unless Their Parent Files "Tax Return" By Tomorrow!

     Earlier we had been told that those receiving dependent children's benefits from Social Security would receive economic stimulus payments, that the Treasury could get enough information from the Social Security Administration to pay them. Now, Treasury and Social Security are putting out press releases saying the kids won't be paid unless a parent files an online tax return and that this tax return must be filed by tomorrow!

     Who gave Treasury the right to impose an impossible deadline on millions of people? Why is this implementation such a mess? A lot of people won't get money they're due because of this incompetence.

CCD Letter On Office Closure Problems

     From a letter sent by the Consortium for Citizens with Disabilties (CCD), the major umbrella group of organizations involved in helping those with disabilities, to Social Security Commissioner Andrew Saul:

... Please publish field office phone numbers more prominently. Currently, the national 800 number is in two much more visible spots ... and the local number ... is more difficult to find on the field office locator tool. With wait times on the 800 number exceeding 90 minutes, allowing people to more easily contact their local offices is critical to improving customer service. ...

We have requested, and understand that the Office of Disability Operations is considering, creating a web page on ssa.gov indicating the daily operating status of all state agencies (DDSs). We assume that SSA is already aware of whether DDSs are completely closed, having all employees telework, or operating under a different arrangement; allowing claimants, representatives, advocates, and others to access this information would be helpful as well.With many DDSs completely closed, it is difficult for DDS staff to obtain evidence submitted by mail or fax, and to generate CDs with claimants’ records to inform claimants and their representatives. Unfortunately, SSA has not yet provided claimants or representatives with the ability to view their electronic files or upload evidence electronically. SSA should prioritize these IT modernizations so that the agency can more efficiently process disability claims at the initial and reconsideration levels....

We appreciate that the Office of Disability Operations created an email address for representatives to send documents to the Representative Call Center (RCC). However, it would be useful for SSA to have similar email addresses for representatives to send documents to the Program Service Centers (PSCs) since the RCC email address cannot be used for any other unit or module. The PSCs often need documentation, such as information about workers’ compensation benefits, to effectuate decisions. With field offices closed, it is more important than ever for PSCs to have adequate channels of communications.  ...

OHO issued a Chief Judge’s Bulletin (CJB) regarding procedures during the pandemic on April 3, 2020. However, the Bulletin has not been published with other CJBs at https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=CJB. Advocates were told in the same phone call that the April 3 CJB was both too general to be of use to claimants and representatives and too “sensitive” to be publicly released. This strains credulity.  ...

Finally, some representatives have been told that OHO could not send any of the barcodes used as cover sheets when faxing documents to claimants’ electronic files and which contain information used to upload documents electronically. If accurate, OHO must find a way for claimants and representatives to submit evidence, requests for on the record decisions and critical case designation, and other important documents to the claims file. If not, SSA should explain how representatives can request bar codes for cases where they’ve recently been appointed or the ALJ hearing request has just been made. ...

The Appeals Council receives many documents and requests for review by fax; they use actual fax machines rather than a fax-to-computer system, and this is now a problem because the machines are out of paper and their memories appear to be full. We are encouraging claimants and representatives to use SSA’s iAppeals system whenever possible and mail if necessary, but claimants who are unaware of these options may be sending their requests for review into a technological void. We urge you to have the Appeals Council devise a way to accept faxed documents, ideally using a desktop faxing system so that staff do not have to manually load paper into fax machines and scan the faxes they receive. ...

     Isn't it obvious that it's inappropriate for an agency to issue secret instructions to ALJs on how they should handle cases? I don't think there's something nefarious going on here; just the age-old bureaucratic penchant for pointless secretiveness.

It's Not Just Puerto Rico; There's SSI Litigation In Guam

     I had posted earlier on the opinion of the First Circuit Court of Appeals that it is unconstitutional to deny Supplemental Security Income (SSI) benefits to an American citizens living in Puerto Rico even though that same person is eligible if living in one of the 50 states (or the Northern Marianas). We'll see what Social Security does about that ruling. My guess is that they think about it and then file a petition asking the Court to rehear the case en banc, that is by all members of the First Circuit Court of Appeals rather than by a three judge panel, as is normally the case.

     It's worth noting that Puerto Rico isn't the only U.S. territory with this sort of litigation. There's also a case pending in the U.S. District Court for Guam and there should be a decision in that one soon. The case in Guam presents the issue more directly than the Puerto Rico case since it concerns a claim for benefits as opposed to an overpayment allegedly created when a person who was getting SSI moved from New York to Puerto Rico.

     The Guam case may not matter since it isn't as far along as the Puerto Rico case and since Guam is so much smaller than Puerto Rico but that case also holds out the prospect of the Supreme Court refusing to hear the Puerto Rico case because there has been no disagreement between Courts of Appeals on the issue of SSI in territories. Disagreement between Courts of Appeals is the most important reason why the Supreme Court agrees to hear cases. I'm not sure exactly where it leaves Social Security if the Supreme Court refuses to hear the Puerto Rico case since it doesn't directly involve a claim for benefits.

     By the way, I've been surprised that Social Security didn't raise the defense of res judicata in the Puerto Rico case. Presumably, Social Security first declared the overpayment administratively before suing to get a judgment on the overpayment. If the agency did, it looks as if the claimant didn't appeal. Arguably, the claimant should have raised any defense to the overpayment at that time rather than later when he was sued. If the government sued first without giving the claimant an opportunity to fight the overpayment administratively, I think he was denied all the process he was due. Perhaps both parties were eager to get to the constitutional issue.

Twenty-Five Years Ago

     The bombing of a federal building in Oklahoma City that killed 168 people and injured 680 more happened at 9:02 CST on this date 25 years ago. Among those killed were 16 employees of the Social Security Administration. Those who committed the crime were anti-government zealots.

     Here is the list, prepared at the time, of the Social Security employees who lost their lives:

• Richard A. Allen, Claims Representative Had 22 years of service with SSA. A Vietnam veteran, he was born in Bailey's Crossroads, Va., and won a scholarship to Panhandle State University in Goodwell, Okla. He is survived by a daughter and his mother. 
• Saundra G. Avery, Development Clerk Worked nine years for SSA. She was a native of Danville, Ark., and was active in her church. A graduate of Central State University in Edmond, Okla., Sandy is survived by her parents and a brother. 
• Oleta C. Biddy, Service Representative Worked 20 years for SSA. Oleta was born in Rosebud, Ark., and was active as a Sunday school teacher and taught children's choir at her church. She is survived by her husband, a son, two grandchildren and two sisters. 
• Carol L. Bowers, Operations Supervisor Had 33 years of service at SSA, starting as a clerk-steno in December 1961. Carol was born in Chandler, Okla., and is survived by her husband and a son. 
• Sharon L. Chesnut, Claims Representative Worked for SSA for 21 years and was an active member of her church. She was born in Oklahoma City and is survived by a daughter, her mother, a sister, a stepson and a stepdaughter. 
• Katherine L Cregan, Service Representative Had 14 years of SSA service. Kathy was a native of West Memphis, Ark. A widow, Kathy is survived by three sons and five grandchildren.
• Margaret E. Goodson, Claims Representative Had almost 21 years of service with SSA. Margaret enjoyed motorcycling and camping trips with her husband. Other survivors include three sons, one daughter, three brothers and four grandchildren.
• Ethel L. Griffin, Service Representative Had 19 years of service with SSA, starting as a claims clerk. She was born in Illinois, where she attended Southwest Jr. College and the College of DuPage. Ethel is survived by her husband, two children and three grandchildren. 
• Ronald V. Harding, Service Representative Had more than 30 years of government service. He served two years in the Army and also worked for the Air Force before joining SSA in 1967. A respected musician, Ron is survived by two sons, two daughters, his parents, two brothers and a sister. 
• Raymond L. Johnson, Senior Community Service Volunteer National Indian Council on Aging worker, was stationed in the Oklahoma City DO for the past six months helping with Head Start programs for Seminole children. Born in Lawton, Okla., Raymond is survived by his wife, seven children, 21 grandchildren, five great-grandchildren and a brother. 
• Derwin W. Miller, Claims Representative Worked at SSA for five years. Derwin was an Arkansas native and a member of the Army Reserve. He was hired through the Outstanding Scholar Program. He is survived by a daughter, his parents, two brothers, a sister and two grandmothers. 
• Charlotte A. Thomas, Contact Representative Had 12 years of service with SSA. She was employed previously with the Departments of Defense and Health and Human Services. Charlotte is survived by a son. 
• Michael G. Thompson, Field Representative Worked for SSA for 19 years. He served in the Army for more than two years. A Vietnam veteran, he is survived by his wife, three sons, one daughter, his mother, two brothers and one sister. 
• Robert N. Walker, Jr., Claims Representative Had 15 years of service with SSA. He served in the Army for three years. Born in Jacksonville, Fla., Bob attended the University of Florida. He is survived by his wife, one son, three stepsons, one stepdaughter and 12 grandchildren. (See in-depth story.) 
• Julie M. Welch, Claims Representative Was hired under the Outstanding Scholar Program in August 1994. Julie was a recent graduate of Marquette University and had studied abroad at the University of Madrid. She is survived by her parents, a brother and a stepbrother. 
• William S. Williams, Operations Supervisor Had 20 years of service with SSA. An Oklahoma native, he had a degree in mathematics from Oklahoma State University. Steve is survived by his wife, three daughters, his father

Time To Raise The LSDB?

     David Weaver argues in The Hill that the Covid-19 pandemic is good reason to update Social Security’s Lump Sum Death Benefit (LSDB). Weaver thinks it should be increased from the absurdly low amount that is now paid, $255, to something that comes closer to the costs of a funeral, $2,500 and that it should be available not only to surviving spouses, as it mostly is now, but to any survivor handling the disposition of the earthly remains. I don’t think he goes far enough. I think the LSDB should be raised to $5,000 or even $10,000. There’s little point in the current LSDB. It probably costs more to administer than is paid out as benefits.

FSIP Rules Against ALJ Union

     The Federal Services Impasse Panel (FSIP) has authority to resolve disagreements in contract negotiations between federal employee unions and employing agencies. FSIP has recently issued a long decision and order resolving a contract dispute between the Social Security Administration and the union that represents its Administrative Law Judges (ALJs). It was a foregone conclusion that FSIP would go against the union and it did. The Trump Administration has packed FSIP with anti-union activists. 

     I am no expert on this contract but the most obvious and important sign of FSIP hostility towards the union concerns the amount of paid time that union officials can put in on union business each year. In the past, the union was provided up to 22,000 hours per year of which it used an average of 15,226 hours per year. FSIP ordered that the union receive only 1,200 hours per year. This is only a third of the 3,600 hours that Social Security had already offered the union! The appearance is that the union was punished for its audacity in not accepting what the agency offered.

     The American Federation of Government Employees (AFGE) recently sued to remove FSIP members for bias. This was added to already pending litigation over the fact that FSIP members have not been subject to Senate confirmation. Those suits will probably still be pending come next January. Should Joe Biden be elected President, his Administration would have the opportunity to settle the suits in a manner favorable to the employee unions. This is one of a number of recent actions by this Administration that may be quickly reversed if Trump is not re-elected.

When Do You Think Social Security Should Reopen?