The Guy Who Invented Social Security

Otto von Bismarck

A Couple Of Things I'm Wondering About

     I've been wondering about a couple of things. First, what is happening in Puerto Rico (and other U.S. territories) when claimants inquire about filing SSI claims? Second, is Social Security trying to track Seila Law objections?

     My general impression is that secretiveness has increased at Social Security since the 2016 election. If you want proof, look at Social Security's postings of Emergency Messages (EMs). The purpose of EMs is to let employees in the field know about significant changes in agency policy or practice. Through May 21 of this year at least 22 new EMs had been released to agency employees but only two had been released to the public. None has been released to the public since May 21. There might be some good reason to withhold a few of those but the vast majority of EMs aren't sensitive. My guess is that the logic behind withholding these from the public is that the agency can't be called to account for failing to follow its own policies when the public doesn't know what those policies are.

     Because of the litigation over the constitutionality of current law that denies SSI to residents of most U.S. territories, there should be individuals attempting to file SSI claims in these territories. What's being done when that happens? How many people in the territories are attempting to file SSI claims? If I were representing clients in Puerto Rico who might be eligible for SSI, I'd certainly be telling them to try to file SSI claims but I'm not representing clients there.

     My expectation is that because of the Supreme Court opinion in the Seila Law case there will be litigation over the validity of actions taken by the Social Security Administration while headed by a Commissioner who can only be discharged by the President for cause. Shouldn't the agency be tracking cases where this sort of objection is made? That's what they did earlier in the run-up to and after the Supreme Court decision in Lucia v. SEC on the constitutionality of ALJ appointments.

Congressmen Seek Answers

     A press release:

Today, House Ways and Means Social Security Subcommittee Chairman John B. Larson (CT-01) and Republican Leader Tom Reed (NY-23) sent two letters to the Social Security Administration (SSA) Inspector General Gail S. Ennis asking for a review of SSA’s telephone service during the COVID-19 pandemic and SSA’s process for obtaining medical evidence for disability claims.

As the COVID-19 pandemic continues, beneficiaries are relying on their Social Security now more than ever. Except in dire need, beneficiaries are unable to access in-person services and are relying instead on telephone services.

In addition, SSA requests millions of medical records each year from healthcare facilities and health professionals across the country to obtain evidence of an individual’s medical condition.  The medical records request is an important part of the disability process, but the most recent report on this topic from the OIG is from 2001 and does not reflect changes to the process over the past nearly 20 years.

“Social Security benefits are earned by hard-working Americans and we must do everything we can to ensure people are receiving the quality customer service they deserve.  These reports will provide important information to make sure Americans are receiving the service they expect and deserve from SSA,” said Larson and Reed.

The letter on telephone service can be found here.

The letter on medical evidence of record can be found here.

Some Things The House Appropriations Committee Is Concerned About

     Some excerpts from the House of Representatives Appropriations Committee report on the Fiscal Year 2021 appropriations bill (starts at page 298) that includes the Social Security Administration:

• The Committee considers the Notice of Proposed Rulemaking (NPRM) ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council’’ (84 Fed. Reg. 70080, December 20, 2019) to be an unjustified erosion of due process for individuals who are appealing a denial of Social Security or SSI benefits. As part of a beneficiary’s right to an impartial appeal process, an on-the-record hearing, conducted by an impartial judge with decisional independence, must be conducted in accordance with the Administrative Procedure Act to ensure due process, with-out agency interference, or political bias. Replacing this appeals step and the role of independent administrative law judges (ALJ)s with SSA employees, jeopardizes the independence of the process. In light of the harm that would be caused by this policy change, the Committee strongly urges SSA to immediately withdraw this proposed rule. 
• The Committee is deeply concerned about the impact of Presidential Executive Order 13843 on the judicial independence of administrative law judges (ALJs). The Order eliminates the competitive hiring process for ALJs and has the potential impact of converting independent adjudicators to political appointees, undermining longstanding principles of fair and unbiased consideration of matters of vital importance to the American people. ALJs must be independent decision-makers and it is the Committee’s expectation that SSA maintain the highest standards for appointment of ALJs. The Committee directs the Ad-ministration to develop and submit to the Committees on Appro-priations, Ways and Means,and Oversight and Reform, a report on hiring processes, to include an explanation of the process, qualification standards, and criteria used to recruit, evaluate and hire ALJs.
  
• The Committee is concerned that persistent labor-management relations problems are undermining the vital work of the SSA. Within 180 days of enactment of this Act, SSA is directed to submit to the Committee a plan, developed in consultation with labor organizations representing its workforce, to improve workplace morale and to strengthen employee recruitment and retention, to better serve the American people.
• The Committee stresses its long-standing support for well-managed telework programs in the Federal workplace and is concerned about recent reductions in telework at SSA. Within 60 days of enactment of this Act, SSA is directed to submit a report to the Committee to explain each decision by SSA to reduce telework availability on or after October 1, 2019, which shall include any metrics used by SSA to reach these determinations, and an impact assessment on human capital in hiring and retention, in-creases to transit and parking subsidies, office space and utility needs changes, lost productivity and morale decline due to lost telework.
• The Committee expects that once the COVID–19 pandemic ends SSA will resume in-person hearings on the same basis as prior to the pandemic.

      Some caveats: This is just the House version. The Senate gets a say as well. These are just recommendations. Even if finally passed they're not legally binding. This bill probably won't be finalized until early next year. There may be some new actors on the stage by then.

"Plan F"?

     Mike Causey at Federal News Network has penned a column saying that there may be a "plan F" to force employees at Social Security and other agencies such as the I.R.S. to return to the office, despite the risks posed by Covid-19. He says that there may be a desire to force experienced employees to retire. This would fit in with the Trump Administration push to reopen the economy, consequences be damned, as well as the Administration's general contempt for federal employees. Causey quotes some federal employees who state their fears there is a plan to force federal employees back to the office but the column is elliptical. It sounds like Causey has some information suggesting that these fears are grounded in fact. Where did he get this "plan F" business?

They Really Don't Want You To Read This

     Earlier this month I posted about a large cache of "proactive" disclosures of information posted on Social Security's Freedom Of Information Act Reading Room. That large cache has been completely taken down. But, you know what? It's all still stored on Google Cache!

No, Internet Services Aren't Causing The Field Offices To Fade Away

     One of the proactive disclosures recently posted by Social Security is data on in-person visits to Social Security field offices in Fiscal Year 2019. There were 43,467,832 of them. They have it broken down by field office.

A Minimum 2.5% COLA Every Year: If The UK Can Do It, Why Can’t We?

     From Forbes:

In the United States, Social Security benefits increase in line with inflation, that is the CPI-W. Presumed Democratic nominee Joe Biden, as well as others advocating for boosts for recipients, support a shift to a special (but currently experimental) windex for elderly-specific inflation. Others support a shift to the “chained-CPI” in which weightings are adjusted whenever people shift their buying patterns due to disproportionate price hikes (e.g., buying more chicken, less beef, means that the lower CPI for chicken would be more relevant than the higher CPI for beef, in a “chained” calculation). But ...  the U.S. is actually in the minority, in terms of developed countries, in adjusting its Social Security benefits solely based on inflation; other countries are likely to use wage increases or a combination of both inflation and wage increases. (Should the United States make such a change? In a perfect world, maybe — but it’s hardly practical when we’re still unable to make the necessary changes to restore the system to sustainability in the first place.) 

But the UK goes even further: its pensions increase each year by the greater of inflation, the average wage increase, or 2.5%. ...