Clearing Out The Regulations Cupboard

     The Social Security Administration has asked the approval of the Office of Management and Budget (OMB) for proposed regulations on "Adjudicating Disability Claims in Which We Must Consider Vocational Factors." 

    Don't get excited. It's way too late for these proposed regulations to be finalized during the Trump Administration. It's not even theoretically possible given the notice periods involved. In fact, they'll probably not even be approved for publication as a proposal. 

     I don't want to read too much into this but sending this to OMB isn't something you'd do if you were interested in cooperating with the incoming Biden Administration.

How Does Social Security Reopen?

      The Covid-19 timeline is starting to come into focus. Before the end of the month Covid-19 vaccinations will have begun. Probably only medical personnel and first responders will be vaccinated at the beginning. However, by early next year it will probably be possible to start vaccinating older people and those with chronic illnesses. It will take until around May or June to make vaccination available to anyone who wants it. Sadly, a significant percentage of the population will refuse vaccination.

     I've got a lot of questions about how Social Security reopens:

• Does Social Security wait to reopen its offices until all its employees can be vaccinated or does it allow or require employees to return to their offices as they complete their vaccinations?
• Can field offices be reopened to the public in some partial manner before all employees can return to the office?
• Does Social Security have the legal authority -- and the will -- to demand that its employees be vaccinated or else lose their jobs? Unvaccinated employees in the office are a threat to other unvaccinated employees and customers. To some extent, they're a threat even to vaccinated employees since the vaccines are less than 100% effective.
  
• Can Social Security refuse to allow members of the public to enter its field offices if they cannot present proof of vaccination? Unvaccinated customers in waiting rooms are a threat to other customers and to employees.
  
• Once field offices reopen there's going to be a crush of people wanting to be seen in person. Other than urging people to make appointments, how does Social Security deal with this? Appointment calendars may quickly fill up for months into the future. There's also the problem that there's a specific statutory requirement that Social Security deal with many walk-in customers. 42 U.S.C. §405(t).
  

Headcount Declines About 5% Under Trump

      During the Trump Administration the Office of Personnel Management (OPM) has been extremely slow in posting the number of employees at each agency. They've finally updated to June of this year. Here are the recent numbers with some earlier headcount numbers for comparison:

• June 2020 60,515
  
• March 2020 60,659
  
• December 2019 61,969
  
• December 2018 62,946
  
• December 2017 62,777
• September 2017 62,297
• June 2017 61,592
• March 2017 62,183
• December 2016 63,364
• December 2015 65,518
• December 2014 65,430
• December 2013 61,957
• December 2012 64,538
• September 2011 67,136
• December 2010 70,270
• December 2009 67,486
• December 2008 63,733

What Happens When The Pandemic Finally Wanes?

      This is the line outside a Social Security field office a year ago. Can you imagine the lines once Social Security field offices reopen to the public sometime next year? 

Investigation Into Alleged Bribe For Pardon Scheme -- The Crime: Social Security Fraud

      From the New York Times:

The Justice Department investigated as recently as this summer the roles of a top fund-raiser for President Trump and a lawyer for his son-in-law, Jared Kushner, in a suspected scheme to offer a bribe in exchange for clemency ...

A billionaire real estate developer from the San Francisco area, Sanford Diller, enlisted their help in securing clemency for a Berkeley psychologist, Hugh L. Baras, who had received a 30-month prison sentence on a conviction of tax evasion and improperly claiming Social Security benefits, according to the filing and the people familiar with the case. Under the suspected scheme, Mr. Diller would make “a substantial political contribution” to an unspecified recipient in exchange for the pardon. He died in February 2018, and there is no evidence that the effort continued after his death. ...

[T]he case relates to the conviction of Mr. Baras, 77, who was sentenced in 2014 and ordered to pay restitution of about $594,000 for tax evasion and illegally claiming disability insurance benefits to which he was not entitled from the Social Security Administration. ...

Bill To Remove Five Month Waiting Period For ALS Patients Advances

      From the Northwest Arkansas Democrat Gazette:

The U.S. Senate voted 96-1 Wednesday to speed up disability benefits for Americans who are diagnosed with amyotrophic lateral sclerosis -- commonly referred to as ALS.

The bill's sponsor, U.S. Sen. Sheldon Whitehouse, D-R.I., worked closely with U.S. Sen. Tom Cotton, R-Ark., to secure passage of the measure, which would waive the five-month waiting period that delays patients' access to Social Security Disability Insurance.

The legislation now heads to the other side of the Capitol. The House version of the bill, sponsored by U.S. Rep. Seth Moulton, D-Mass., already has more than 300 co-sponsors, including all four of Arkansas' congressmen. ...

     The House Majority Leader has announced that this bill will be brought to the House floor next week.

     This bill would be great for ALS patients but NO ONE should be subjected to this five month waiting period. Why give ALS patients relief from this waiting period but not patients with terminal cancer? 

     My clients ask me why this five month waiting period exists.  They always give me a blank look of incomprehension when I tell them the only reason that five month waiting period is in the Social Security Act is to save money. There's no other explanation.

New Musculoskeletal Listings Could Still Be Axed By Biden Administration

      The thing about those new musculoskeletal Listings published in the Federal Register today is that they are not supposed to become effective until 120 days after publication, April 2, 2021, which will be well after Inauguration Day. The minimum time is 30 days, meaning these could have become effective before Inauguration Day. New regulations which have not yet gone into effect can still be withdrawn. Other new Administrations have put holds on new regulations going into effect until they can be reviewed and some have been withdrawn. I'm sure the 120 days is needed to do staff training and even that is probably rushing it given the difficulty of doing training during the pandemic but it gives the Biden Administration time to withdraw and rewrite the new Listings. Advocacy groups will be urging them to do so. I don't know whether these new Listings will be viewed by the new Administration as normal housekeeping or as a partisan attack on claimants. My strong opinion is that there is nothing in these new Listings that was required by any medical advances. It's entirely and intentionally slanted to cause more denials.

New Musculoskeletal Listings To Be Published Tomorrow

      The final regulations rewriting the musculoskeletal Listings will appear in the Federal Register tomorrow. You can read them today. The Listings are an important factor in determining disability but certainly not the only one. Many, perhaps most,  people who are approved do not meet a Listing. The draft of these new Listings which had been posted earlier in the Federal Register for comments, drew strong criticism from claimants' advocates.