Regs On Overpayment Waivers During Pandemic Coming Tomorrow

      The Office of Management and Budget (OMB) has already approved Interim Final Regulations on "Waiver of recovery of certain overpayments accruing during the COVID-19 pandemic period." They are being published in the Federal Register tomorrow. Read them today.

     The weird thing about these regulations is that they apply to overpayments that occur between March 1 and September 30, 2020 and which are identified by December 31, 2020. Does Social Security seriously think it will be able to fully process its workloads by the end of September? Why would the agency automatically waive an overpayment based upon when the overpayment is identified rather than when it occurred. From the point of view of the claimant, that makes no sense. I don't see how it makes any sense even from Social Security's point of view.

     The regulations fail to identify which overpayments they apply to. They merely refer to overpayments occurring "because of the actions that we took in response to the COVID-19 national public health emergency, including the suspension of certain of our manual workloads that would have processed actions identifying and stopping certain overpayments." Could you be a little more specific? As an attorney representing claimants I don't like a standard that sounds like "We'll waive 'em if we want to and if we don't, you can't complain about it because we never promised you anything."

     Even under the circumstances I think the agency should have thought these regulations through a bit better. I'd call this sloppy. At least the public can comment on them. My guess is that there will be comments and that the agency will have to modify them before we're done with this issue.

Don't Let Anybody Tell You Social Security Is Getting All Its Work Done During Covid-19

      I was having a discussion -- via e-mail -- with several legal assistants at my law firm recently about their experiences over the last few months trying to communicate with PC3, that is, Social Security's Third Payment Center, the one in Birmingham, AL, which handles much of the business of computing and authorizing benefits in the Southeastern United States. Here's what they had to say:

• Horrible, 19 out of 20 times no one answers.  Actually, even that stat is high.
• They never answer for me.  I have been asking for help from DO [District Office] to send Mgr [manager] to mgr messages.
• I haven’t been able to get through to anyone there since March. I have the DO send mgr to mgr messages to them and still don’t get any results.
• It is terrible.  I have called repeatedly and I can never reach anyone.  It does not allow you to leave a voice mail.  The only time I have seen action is if the DO requests that they do something or if I send a fax.  Sometimes I have aggravated people at other PCs that have contacted PC3.  
•  PC 3 is horrible

I'll Have To Put On A Suit!

      I understand from the National Organization of Social Security Claimants Representatives (NOSSCR) that Social Security is hoping to offer video hearings to claimants from their homes or their attorneys' offices starting as early as November.

TV Show Tonight On Eric Conn Case

      A press release:

Eric Conn, the convicted mastermind of the largest U.S. Social Security fraud in history vanishes and is apprehended, but leaves thousands of his former clients struggling to survive…until a whistleblower uncovers startling new evidence that could help them regain their disability benefits. Catch new facts, new updates, and new reporting on "American Greed: Biggest Cons" Monday at 10P ET on CNBC.

     From what I’ve heard they may be overselling the “startling new evidence.” I think this is an update of something that CNBC did in 2018.

     This may not be the only show coming on the Conn fiasco.

Proposed Amendments To Federal Rules Of Civil Procedure To Specifically Address Social Security Cases

      The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has produced a lengthy set of amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure. These include amendments to the Federal Rules of Civil Procedure to specifically address Social Security cases. The proposed changes concerning Social Security begin at page 231 of this 280 page document. 

     At first reading, these do not seem concerning to me but as lawyers know, any procedural rules have the potential to be outcome determinative.

     The public has until February 16, 2021 to file written comments on the proposed changes. There will be public hearings on the proposed amendments to the civil rules on November 10 and January 22. After this process, the Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court must all agree before these proposals come into effect.

"Reposturing" Plan

      I don't think it's realistic to expect that the Social Security Administration would have a reopening plan at this time. There are too many unknowns. Will there be a vaccine? If so, when will it become available? If it becomes available, how quickly will it become available to the entire population? How effective will a vaccine be? How many people are willing to be vaccinated? However, Social Security management is thinking about the subject of reopening. They've come up with a "Reposturing Plan." I don't think this plan gets them very far but I expect they know this. You have to start somewhere. At least it's a sign that there's nothing devious in the works at this time.

Is Wet Ink Requirement Just Pointless Red Tape?

      From a press release:

 United Spinal Association recently filed a complaint with the U.S. District Court for the District of Columbia for the alleged unlawful "wet ink" signature requirements imposed on persons with disabilities in connection with applications for certain disability benefits of the Social Security Administration (SSA).

The complaint, which requests judicial review and declaratory and injunctive relief, states that the wet ink signature requirements, "unlawfully, irrationally and unnecessarily interfere with persons with disabilities' ability to pursue their rights to federal disability benefits—making an already cumbersome application process for persons with disabilities even more difficult."

"The SSA has chosen to selectively comply with or ignore the laws related to electronic signatures and documents and the right to representation. It has created and reinforced unnecessary barriers for those who legitimately need and seek assistance from third parties in obtaining disability benefits," said James Weisman, United Spinal's president and CEO. ...

Biden Plan For Social Security Disability

      From Joe Biden's plan for people with disabilities:

PROTECT AND STRENGTHEN ECONOMIC SECURITY FOR PEOPLE WITH DISABILITIES

The Trump Administration has systematically attacked the Social Security disability programs—from proposing monitoring people with disabilities through social media in order to cancel their benefits, including their health care, to tightening eligibility through a proposal to  redefine the number of hours in a work week so some applicants do not receive benefits. The National Council on Disability found that “people with disabilities live in poverty at more than twice the rate of people without disabilities.” To protect the economic security of people with disabilities and increase employment opportunities, Biden will take a holistic approach to Supplemental Security Income (SSI), Social Security Disability Insurance (SSDI), Medicaid, and other programs to support people with disabilities. He will: 

• Increase the benefit level for people receiving SSI. Biden will set a federal benefit rate of at least 100% of the poverty level. 
• Eliminate the five-month waiting period for SSDI and two-year waiting period for Medicare. Biden will work to pass legislation to ensure working people who develop a condition or disability are able to get their Social Security support as well as their Medicare benefits as soon as they qualify. 
• Eliminate the “benefit cliff” for SSDI. Earnings limits under SSDI can discourage people with disabilities from engaging in employment or internship opportunities when they depend on SSDI funds. Biden will increase this limit and phase out this benefit gradually so people with disabilities don’t have to choose between employment and health care. 
• Reform the SSI program so that it doesn’t limit beneficiaries’ freedom to marry, save, or live where they choose. Biden will work with Congress and the disability community to eliminate the SSI marriage penalty and “in-kind support and maintenance” provision and raise the asset limits associated with SSI that have not been increased since 1984. 
• Expand access to tax-advantaged savings accounts, ABLE accounts, which provide people with disabilities a way to pay for “qualified disability-related expenses, such as education, housing and transportation.” Biden will work to pass the ABLE Age Adjustment Act, which will make ABLE accounts available to 6 million additional adults with disabilities, including 1 million veterans. 
• Reverse damage done to Social Security rules by the Trump Administration. President Trump announced that he wants to change the Social Security rules for people who get disability benefits, including SSI and SSDI. His proposed change would require many to re-verify their disability every two years, a tough enough process to get through once, targeting adults with disabilities who are close to retirement, children with disabilities, and people with certain medical conditions including cancer and behavioral disorders. If approved by the Trump Administration, Biden will rescind this harmful proposal.
• Strengthen the Social Security Administration. Ensuring that Social Security benefits are easy to access and that field offices and teleservice centers are fully funded is key to our bedrock commitment to seniors and people with disabilities. Cutting Social Security services will only hurt the most vulnerable in our communities. Biden will provide sufficient resources for staffing needs to meet the needs of beneficiaries today and into the future.