SSA Doing Poor Job Of Identifying Disability Recipients Eligible For Student Loan Relief

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

Background: Individuals with TPD [Total and Permanent Disability] are eligible to have their Federal [student] loan debt discharged. To assist ED [Education Department] in fulfilling its obligation to ensure borrowers with disabilities who have Federal student loans more efficiently and effectively apply for TPD discharge of their student loans, SSA [Social Security Administration] and ED entered into a computer-matching agreement. ED accepts SSA’s MINE [Medical Improvement Not Expected] designation as evidence of TPD and uses SSA match responses to identify and inform borrowers with TPD of their eligibility for student loan discharge. In 2016, SSA’s initial match under the agreement identified approximately 400,000 borrowers with TPD. SSA reported these matches to ED. Since that time, SSA and ED have conducted similar quarterly data matches.

Findings: SSA needs to improve its data-matching process to assist ED in administering the TPD discharge process for disability beneficiaries with student loan debt. We estimate data matches SSA completed during our review period did not identify 36,248 borrowers with MINE status. This occurred because SSA had incorrect coding in its Disability Control File or had converted the beneficiaries from disability to retirement benefits. As a result, SSA did not identify these beneficiaries to ED as eligible for loan discharge.

     Let me explain why this is important. Many, many disabled people have outstanding federal student loans. Mostly it's loans they took out. Sometimes, they were a guarantor of a loan to a child.  It's almost impossible to discharge these loans in bankruptcy. The lenders are pitiless and the laws draconian. Much of the "education" was worthless. These loans can be $100,000 or more. People who are disabled desperately need to get out from under these loans. It sounds like SSA is making a mistake for almost 10% of claimants. That's not 10% of claimants who should be eligible for relief but 10% of ALL claimants. That's a huge error rate. Also, this sort of error assures that SSA will be wasting money doing unnecessary continuing disability reviews for people who they already know won't improve. It also assures that the Department of Education has to slog through a lot of applications for TPD status proven by means other than a Social Security determination that could have been cleared quickly if the Department of Education had just received appropriate information from SSA.

     To my mind, this problem deserves a Congressional hearing.

     Notice the chart below from the report. Why did the identification of those eligible for loan discharge decline so abruptly after the 2016 election?

Analysis Of Reduction In SSI Claims Filed Since Field Offices Shut Down

     This slide deck was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. Click on each to view full size.

    I think we should all expect that once Social Security field offices reopen that there will be a huge number of disability claims filed. I hope there will be enough staff to take and adjudicate those claims.

 

I'm Surprised By The Amount Of Overtime In The Third Quarter

       This was obtained from Social Security by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members. It is basic operating statistics for Social Security's Office of Hearings Operations.

Click on image to view full size

Issuing A Directive

      A press release:

Today, House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT) and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) sent a letter directing the U.S. Department of Labor to halt consideration of a proposed transfer of the Ticket to Work program from the Social Security Administration to the U.S. Department of Labor. The Ticket to Work program provides services to help Social Security and Supplemental Security Income disability beneficiaries who are attempting to return to work.

“In 1999, Congress placed the new Ticket to Work and Self-Sufficiency program (Ticket program) under the Social Security Administration (SSA), because of the close coordination between SSA and program participants, including beneficiaries and service providers, that is essential to the operation of the Ticket Program. Nothing has changed to warrant a transfer to the Department of Labor (DOL),” wrote Larson and Davis.

“By law, the Department of Labor does not administer the Ticket program,” continued Larson and Davis. “We do not intend to consider legislation to remove the administration of the Ticket program from SSA and place it at DOL. We therefore expect the Department to halt any further consideration of this inappropriate and detrimental proposal.”

Opposition To AAJ Hearings

      A press release:

Today, Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Worker and Family Support Subcommittee Chairman Danny K. Davis (D-IL) released the following statement after the Trump Administration announced it would finalize a rule on December 16, 2020 to change the Social Security Administration’s appeals process by replacing independent and impartial Administrative Law Judges with internal agency lawyers: 

“For nearly two years, we’ve sounded the alarm that this change would erode due process for Social Security and Supplemental Security Income applicants and beneficiaries and threaten their access to their earned benefits. The rule puts unqualified agency staff in control of deciding appeals hearings and contradicts the congressional intent of the law governing such proceedings. We condemn this political decision that will go into effect just as the Trump Administration is on its way out the door. It is our hope that the Biden Administration rights this grievous wrong and ensures that all those who are eligible can access their disability, retirement, and survivors’ benefits.”

     No mention of the Congressional Review Act. 

Regs On AAJ Hearings To Go Into Effect On December 16

      Monday's Federal Register will contain new final regulations from Social Security on Hearings Held by Administrative Appeals Judges of the Appeals Council. You can read the regulations today. The effective date is December 16. I do not expect that these regulations will be implemented during the Biden Administration. It is possible that they will be disapproved under the Congressional Review Act. Neither a filibuster nor the Senate Majority Leader can prevent a Congressional Review Act vote.

     The explanatory material published contains this sentence (emphasis added): "Because AAJs and ALJs have similar levels of training, will follow the same set of policies, and have equivalent decisional independence, we anticipate that when AAJs are used at the hearing level, they will provide the same level of service and fairness as ALJs do." I can't say that I take that statement at face value. In fact, if true, I don't know what the point of these regulations is.

Final Musculoskeletal Listings Changes Approved

      The Office of Management and Budget (OMB) has approved final regulations to modify Social Security's Listing of Impairments on musculoskeletal disorders. This proposal had been pending at OMB since last December, an extraordinary length of time. We don't know what's in the approved final regulations, although it's unlikely to be much different from the proposal. Expect to see these published in the Federal Register in the near future.

     The proposal was extremely controversial. Musculoskeletal disorders produce a lot of disability. There's no doubt that the proposed regulations would have a significant effect upon who gets approved for disability benefits and that the intention was to sharply reduce the number approved. My opinion is that these regulations will prove to be the most enduring legacy of the Trump Administration as far as Social Security is concerned and that it will be a harsh legacy.

     In theory, these regulations could be reviewed under the Congressional Review Act. It would only take a majority vote in both Houses of Congress plus the incoming President's approval to ditch these. No filibuster is allowed. However, these may seem too technical to get voted down. Also, if regulations get voted down under the Congressional Review Act, it takes Congressional approval to ever revive them. That could make it difficult for Social Security to ever modify the musculoskeletal Listings.

     I would say that under normal circumstances Social Security would like to have considerable lead time in order to implement something of this magnitude and might make them effective further out in the future than the minimum 30 days notice. However, I don't think that those behind these regs expect to be around for the implementation or care much about proper implementation. For them, it's smash and grab time.

     Below is a side by side comparison of the proposed regulation and the current regulation. Click on each to view full size. There was also an extensive preamble to the proposed regulations.

Click on each image to view full size

Final Approval Requested For CDR Regs

      Almost a year ago, Social Security published proposed regulations on continuing disability reviews. They propose to add a new category fro reviews, Medical Improvement Likely (MIL), to be reviewed every two years. MIL was aimed at a group of impairments which they said fitted between the categories of Medical Improvement Expected (MIE) and Medical Improvement Possible (MIP). They said they would include anxiety related disorders in this category. They proposed to increase the frequency of reviews for the category of Medical Improvement Not Expected (MINE) from seven years to six years. Overall, they said they expected to increase Continuing Disability Review (CDRs) by more than 1.1 million a year. This proposal encountered considerable opposition. 

     Social Security has now asked the Office of Management and Budget (OMB) to give approval to these as final regulations.  OMB won't have long to act on the proposed final regulations. Traditionally, new Administrations put a freeze on any regulations still pending at OMB as well as new regulations that have been published but which have not yet gone into effect. Since agencies have to give at least 30 days notice, by my calculation Social Security needs to get these regulations in the Federal Register by December 21 to have them become effective before Joe Biden takes office. Even if they meet this timeline, the new Administration can refuse to implement them and the new Congress can review them under the Congressional Review Act. There are no filibusters of Congressional Review Act reviews.