Sounds Like A Plea For A Supplemental Appropriation This Year -- But Why Didn't We Hear This When Trump Was President?

     A letter that the Social Security Administration posted online (emphasis added):

April 21, 2021

The Honorable John B. Larson
Chair, Subcommittee on Social Security, Committee on Ways and Means
U.S. House of Representatives
Washington, DC 20515

Dear Subcommittee Chair Larson:

I am writing because I want to be clear about the negative impact to Social Security services due to the ongoing pandemic and our funding level in fiscal year (FY) 2021. Our FY 2021 annual appropriation was nearly $900 million less than my original request. It is effectively level with the funding we have received for each of the last four years, despite significant increases in costs that we do not control – such as the Government-wide pay increases.

The pandemic has resulted in unprecedented changes. The safety of the public and our employees has been the paramount driver of how we deliver services during the pandemic. To protect the public and our employees, we have necessarily limited in-person service to critical situations that can only be resolved in-person. While we continue to serve the public over the phone and online, we are still experiencing issues receiving and verifying documents and medical evidence we need to make decisions. Even with fewer applications in FY 2021, pandemic-related challenges and operational constraints present numerous barriers to employees completing workloads timely. In FY 2020, the average time it took us to complete an action in our field offices increased by 20 percent, significantly reducing our productivity. We are working diligently to address these challenges, but the abrupt changes to the way we do our work has caused bottlenecks in certain workloads and service deterioration beyond our control. On February 23, 2021, we shared with your staff the potential implications of our FY 2021 funding level to further harm services.

However, our operational challenges have been aggravated by our inability to fully use our program integrity funding. To use this funding, we must complete cost-saving continuing disability reviews (CDR) and Supplemental Security Income redeterminations. We have had to reduce our planned full medical CDRs by 30 percent due to the pandemic, the lowest level since FY 2013. We deferred these workloads in the early part of the pandemic to protect beneficiaries’ income and healthcare and to reduce the burden on the medical community, which had stopped most elective services.

While we restarted these workloads at the end of FY 2020, we are handling them through the mail and over the phone. During the pandemic, these complex workloads often require multiple contacts with a beneficiary, which slows our ability to complete this work. In addition, over 30 percent of our initial disability claims and CDRs require a consultative exam (CE) with a medical provider so that we can obtain enough medical information to make a decision. Right now, just over 70 percent of our CE providers are scheduling in-person exams. We have focused our limited CE capacity on initial disability claims to ensure that we can provide benefits to people who qualify. Even with that focus, the average processing times for initial disability claims increased about 45 days in the last year. Ultimately, we currently estimate the constraints on our program integrity funding deepens our shortfall by approximately $200 million.

Since becoming Commissioner, I have focused our actions and our resources on efforts to improve the service we provide to the millions of people who turn to us for help. I have been clear in my budget requests about what it takes to improve service and maintain the integrity of our programs: both additional frontline staff to help people now, and information technology (IT) investments to improve our future. IT is fundamental to offering the public more electronic and online options they expect from organizations today, improving the technology to make it easier for our staff to help the public, and ensuring we have a safe, modern platform to support over $1 trillion in benefits payments each year.

I have frozen hiring in non-frontline positions so that we can push all available resources to the offices that directly serve the public. I have increased the staffing in our field offices, national 800 number, processing centers, and State disability determination services (DDS) by nearly 3,000 people since 2019. I have increased IT investments to accelerate our modernization and increase online service options.

We are working with the advocate community to help ensure that the most vulnerable populations can access our services. Our efforts include a robust communications campaign, in combination with a wide range of online resources, to provide information on service options for the beneficiary and individuals or organizations that help them.

I also decided to pay employee awards so they know that we appreciate their hard work and dedication, especially during this difficult time. I have pushed the agency to find creative ways to maintain these efforts despite the significant cut to our budget request this year.

We have explored all possibilities to eliminate our budget shortfall but we are unable to overcome it. I have no other option but to delay our planned hiring to operate within our appropriated resources. Further, we will not be able to compensate for fewer employees with additional overtime. We are operating with the lowest level of overtime in the last decade. These decisions have a lasting negative impact on the service we can provide to the American public. It will increase waits for service from our field offices and on our 800 number as we begin to emerge from the pandemic. The number of pending actions in our processing centers will grow from about 3.7 million actions pending at the end of FY 2020 to more than 4.2 million actions pending by the end of FY 2021. It will delay our plan to eliminate the backlog of cases in the DDS, which currently has about 20 percent more pending cases than prior to the pandemic, as we anticipate an increase in disability receipts into FY 2022.

The pandemic has changed the way we do work at SSA in unprecedented ways. At the start of the pandemic, we transitioned to remote work, focused on critical service workloads through online and telephone options, and suspended some adverse actions to protect the public during an especially critical time. The pandemic required necessary operating adjustments to safely serve the public, reducing our ability to complete our workloads and contributing to increased backlogs and wait times in some priority service areas. These novel factors prevented us from achieving some of our goals in FY 2020 and put our goals for FY 2021 and future years at risk. FY 2021 is a critical year to shape the agency for post-pandemic success, but our resource constraints will delay our recovery.

I appreciate President Biden’s support of our needs with his FY 2022 budget request of nearly $14.2 billion for us, which is $1.3 billion more than what we received this year to operate our agency. No one anticipated the duration of the pandemic and the ongoing challenges it presents. I hope you will consider these challenges and support his request to help us improve service.

Sincerely,

Andrew Saul
Commissioner

It's Simple Economics

      I had posted earlier that representing Social Security disability claimants doesn't pay as well as some other fields of practice that are, at least, a little similar, workers compensation and personal injury. I've found these publicly available average yearly salary numbers from ZipRecruiter:

• Social Security attorney: $56,763
• Personal injury attorney: $82,049
• Attorney generally: $77,331

     These numbers seem about right to me. I would caution that these appear to me to be an average of salaries for jobs advertised on ZipRecruiter. Those would mostly be a mix of entry level jobs and jobs for attorneys with a modest amount of experience. Highly experienced attorneys don't move around all that much and when they do websites like ZipRecruiter are seldom involved. I don't know why but I couldn't find an average salary number for workers compensation claimants' attorney, which would be the closest analogue to Social Security.

     If we want competent attorneys representing Social Security claimants, we're going to have to do something about this salary imbalance and the only way to do that is by allowing Social Security attorneys to charge more. The easiest way of doing that is by increasing the fee cap but more may be required. 

     You're not protecting claimants by holding down the fees they're allowed to pay their attorney. At best, you're holding down the quality of attorney available to them but you may be making it harder for them to find any attorney.

     I have heard Social Security employees bemoan the increasing number of unrepresented claimants who fail to appear for scheduled hearings. Get a clue, people. The biggest reason they don't show up is that they've become discouraged because they couldn't find an attorney to represent them. In an environment in which it's hard to make a living as a Social Security attorney, the first thing you do is to try harder to avoid cases you think you're unlikely to win but making this sort of decision isn't easy. All of us in this field of practice place  a heavy emphasis on the claimant's age when making these decisions which means that if you're young it may be hard to find a Social Security attorney. I fear we turn away too many younger claimants who actually have good cases. To do something about the difficulties that younger people have finding a Social Security attorney, you have to change the risk-reward ratio that attorneys face. The risk isn't likely to change so you have to increase the reward. Is this hard to understand?

OIG Report On Telephone Service Last Summer

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

On July 21, 2020, Representative John Larson, Chair, and Tom Reed, Ranking Member, Subcommittee on Social Security, requested the Office of the Inspector General review SSA’s telephone services during the COVID-19 pandemic. In this report, we address SSA’s telephone services for June 2020. ...

In June 2020, SSA’s field offices and national 800-number received30 percent more calls than June 2019, with field offices receiving most of the additional calls. Also, during the same periods, 

• calls to the field offices and the national 800-number during business hours resulted in fewer busy messages, though the business hours for the national 800-number were reduced in June 2020, 
• the number of callers who hung up without speaking to an employee during business hours was lower for the field offices but slightly higher for the national 800-number, 
• the number of calls handled by employees was much higher for calls to the field offices but remained about the same for calls to the national 800-number, and
• callers to field offices waited less time for service while callers to the 800-number waited longer. ...
  

In general, SSA’s telephone services performance during June 2020 was similar to 13 customer service call centers we reviewed from 10 other Federal agencies, as compared to June 2019, but SSA’s performance seemed to fare better during COVID-19 than industry call centers. ...

Three Years In The Slammer For Former SSA Employee

      From a press release:

U.S. District Judge George L. Russell, III sentenced Cheikh Ahmet Tidiane Cisse, age 45, of Baltimore, Maryland, today to three years and a day in federal prison, followed by three years of supervised release for theft of government property and aggravated identity theft, in connection with a scheme in which Cisse filed fraudulent claims for Social Security benefits using fictitious identities and the identities of actual individuals, and attempted to collected over $236,000.  Judge Russell also ordered Cisse to pay restitution of $83,247 and forfeit $30,000 seized from Cisse’s home and pay a money judgment in the amount of $51,107. ...

According to his plea agreement, as part of his job, Cisse was responsible for reviewing the identity documents of social security claimants living abroad, such as passports, marriage certificates, and identity cards.  Cisse then created new, fictitious identities in SSA's database, often using information from the foreign identity documents he reviewed, which were issued social security numbers (SSNs).  Cisse used the fictitious identities to file fraudulent claims for social security divorced spouse survivor's benefits against actual deceased individuals, directing the benefits payments to debit cards or bank accounts he opened in the names of the fictitious identities using the identity documents he obtained through his employment.  Cisse sometimes provided his home address for that of the fictitious claimants, but also provided an address in Quebec, Canada, that corresponded to a mail forwarding service to which he subscribed, making it appear as if the fictitious claimants lived abroad.  Through this mail forwarding service, Cisse received mail associated with the scheme, including genuine social security cards in the names of the fictitious identities and benefits payments. ...

Senate Finance Committe Schedules Hearing On Service Delivery

      The full Senate Finance Committee has scheduled a hearing for 10:00 AM on April 29 on Social Security During COVID: How the Pandemic Hampered Access to Benefits and Strategies for Improving Service Delivery. Here's the witness list: 

• Grace Kim, Deputy Commissioner, Operations, Social Security Administration 
• Kascadare Causeya, Program Manager, Central City Concern, Portland , OR 
• Peggy Murphy, Immediate Past President, National Council of Social Security Management Associations, Great Falls , MT 
• Tara Dawson McGuinness, Founder, Senior Advisor, New Practice Lab, New America, Washington, DC

      This hearing is a big sign that there will be considerable pressure on Social Security to reopen its field offices to the public in the next few months. To my friends who work at Social Security, get vaccinated and expect to return to the office before the end of the summer. This weird interval in our lives is drawing to a close, whether we like it or not. Once you're fully vaccinated, you're at virtually no risk from Covid-19. There's no reason to keep public services closed just to protect people who refuse to be vaccinated.

Hire, Hire, Hire

      The American Federation of Government Employees (AFGE), the labor union that represents most Social Security employees recently asked its members for suggestions on improving employee morale, recruitment and retention. Here's an excerpt from their report on what they heard back:

Problems and Suggestions:

Hire, Hire, Hire:

Problem:

The lack of adequate staffing was the most cited complaint from employees.  The second most cited complaint was impossible expectations due to unmanageable workloads – which would also be connected to the lack of adequate staffing.  If we had adequate staffing to distribute the workloads so that everyone would have a manageable workload – the expectations for processing workloads would be fair and stress, anxiety, animosity, depression, etc. would be reduced considerably.  This would also have a major beneficial result on retention (not to mention increased productivity, reducing errors, improving customer service, etc.).

Suggested Solution 1:

Increase the amount of hiring for the front lines.  Stop reducing staffing in order to justify budget allocations for computer programs that we do not need and do not want.  Devote the resources necessary to the front lines where the work is being done – even if this means reducing the number of project managers, admin personal currently dedicated to compiling reports that do not change much from year to year, employees charged with creating training cartoons intended to train employees who are fully grown, etc.  Make budgeting decisions that are smart. ...

OMB Pushing Digital Signatures

      From a Federal News Network piece on information technology modernization:

Take, for example, digital signatures. This technology has been around since the late 1990s, but only in the last year did agencies fully realize its potential. Now the Office of Management and Budget is telling agencies in the budget passback, which Federal News Network obtained, to “accelerate the adoption and utilization of electronic signatures for public facing digital forms to the fullest extent practical in alignment with OMB Memorandum M-19-17 and OMB Memorandum M-00-15.”

Supreme Court Rules Against Issue Exhaustion

     From the syllabus of the just announced Supreme Court opinion in Carr v. Saul:

Held: The Courts of Appeals erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims. Pp. 4–12.

(a) Administrative review schemes commonly require parties to give the agency an opportunity to address an issue before seeking judicial review of that question. Such administrative issue-exhaustion requirements are typically creatures of statute or regulation. But where as here, no statute or regulation imposes an issue-exhaustion requirement, courts decide whether to require issue exhaustion based on “an analogy to the rule that appellate courts will not consider arguments not raised before trial courts.” Sims v. Apfel, 530 U. S. 103, 109. “[T]he desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Ibid. In Sims, which declined to apply an issue-exhaustion requirement to SSA Appeals Council proceedings, the Court explained that “the rationale for requiring issue exhaustion is at its greatest” when “the parties are expected to develop the issues in an adversarial administrative proceeding,” but is “much weaker” when “an administrative proceeding is not adversarial.” Id., at 110. Although Sims dealt with administrative review before the SSA Appeals Council, much of the opinion’s rationale applies equally to SSA ALJ proceedings. Pp. 4–8.

(b) Even assuming that ALJ proceedings are comparatively more adversarial than Appeals Council proceedings, the question remains whether the ALJ proceedings here were adversarial enough to support the “analogy to judicial proceedings” that undergirds judicially created issue-exhaustion requirements. Sims, 530 U. S., at 112 (plurality opinion). Pp. 8–12. 

(1) In the specific context of petitioners’ Appointments Clause challenges, two considerations tip the scales decidedly against imposing an issue-exhaustion requirement. First, agency adjudications are generally ill suited to address structural constitutional challenges,which usually fall outside the adjudicators’ areas of technical expertise. See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 491. Second, this Court has consistently recognized a futility exception to exhaustion requirements. See, e.g., Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 405–406. Both considerations apply fully here: Petitioners assert purely constitutional claims about which SSA ALJs have no special expertise and for which they can provide no relief. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, distinguished. Pp. 9–11.

(2) The Commissioner’s contention that petitioners cannot obtain new hearings because they did not “timely challenge” their adjudicators’ appointments presumes what the Commissioner has failed to prove: that petitioners’ challenges are, in fact, untimely. The Commissioner’s reliance on Ryder v. United States, 515 U. S. 177, and Lucia, 585 U. S. ___, is misplaced, as neither decision had occasion to opine on what would constitute a “timely” objection in an administrative re-view scheme like the SSA’s. Pp. 11–12.