Independent Agency?

     Mark J. Warshawsky, who was a Trump policy appointee at Social Security but who got forced out when the Biden Administration came in, writes for the Baltimore Sun about SSA's odd "independent agency" status. Surprisingly, I don’t fully disagree with him. The Social Security Administration can never be truly independent. It's too restrained by the budget process and the Office of Management and Budget's veto power over regulations. I think that cabinet status is long overdue for the agency. By a wide measure it's the largest and most consequential of the independent agencies. However, unlike Mr. Warshawsky I believe the Commissioner should serve at the pleasure of the President. A highly partisan figure like Andrew Saul (or Mark Warshawsky) should never be serving at Social Security, much less during an Administration he's at odds with.  Let's end this "independent agency" farce. It hasn't worked.

From The Senate Finance Committee Hearing

      I've watched today's hearing before the Senate Finance Committee. There's certainly a lot of concern about people having to mail their drivers licenses or passports to Social Security. The response from Social Security's witness, Grace Kim, on this issue was basically "We're looking into it" but there was no commitment to do anything different, only to get back to the Committee within two weeks. The problem is that this is just the issue that the Senators are hearing the most about from their constituents but there's a much bigger problem with people who need in-person help filing claims, particularly SSI claims. There's no option for them to get the help they need.

     Kim was asked about when field offices might reopen. Her responses didn't include any sort of timeline. She said Social Security would have to wait on guidance from the White House.

     Kim was asked about negotiations with the employee unions. She said that there were negotiations over the agency's workplace safety plan but not about anything else.  I was surprised that there were not more questions on this. The unions want to redo contracts that were imposed upon them during the Trump Administration.  This would certainly happen if President Biden could appoint a new Social Security Commissioner.

     Here's a couple of tidbits from the written Kim's written statement:

... Limiting visitors has also resulted in an influx of incoming mail and phone calls. To illustrate the magnitude of this increase, before the pandemic, field offices scanned and uploaded about 150,000 paper documents weekly for processing. Offices are currently scanning and uploading approximately one and a half million paper documents weekly. In FY 2020, the unit time for the 47 million field office actions increased by 20 percent in part due to scanning, copying, indexing, and returning mailed documents, which significantly reduced our productivity. ...

Similarly, field offices are now handling three times as many phone calls as they did pre-pandemic. We are on track to answer over 60 million calls in our field offices in FY 2021—up from 20 million calls handled in FY 2019. ...

Senate Finance Committee Hearing Today

      The Senate Finance Committee will hold a hearing at 10:00 EDT today on "Social Security During COVID: How the Pandemic Hampered Access to Benefits and Strategies for Improving Service Delivery." It will be possible to watch the hearing online. Grace Kim, Deputy Commissioner for Operations will be the witness for the Social Security Administration.

    One might have expected that the Commissioner would be the witness for Social Security. Leaving aside the question of whether Andrew Saul is legitimately serving as Commissioner, there would be a major problem with him testifying. The hearing would quickly devolve into angry accusations by Democrats that Saul has behaved in an inappropriately partisan fashion as Commissioner followed by spirited counter accusations of something -- I don't know what -- by Republicans. That might be useful in its own way but I expect that it was obvious to all that this only distract from Social Security's current situation.

     I hope to hear detailed information about the agency's dire service delivery problems as well as news about reopening plans. It would be nice if some improvements in relations with employee unions could be announced. It may be too much to hope for but Social Security really needs a supplemental appropriation to help it get through until the next fiscal year, which begins on October 1.

Is This Wrong?

      From National Public Radio:

... Roughly 10% of foster youth in the U.S. are entitled to Social Security benefits, either because their parents have died or because they have a physical or mental disability that would leave them in poverty without financial help. This money — typically more than $700 per month, though survivor benefits vary — is considered their property under federal law.

The Marshall Project and NPR have found that in at least 36 states and Washington, D.C., state foster care agencies comb through their case files to find kids entitled to these benefits, then apply to Social Security to become each child's financial representative, a process permitted by federal regulations. Once approved, the agencies take the money, almost always without notifying the children, their loved ones or lawyers.

At least 10 state foster care agencies hire for-profit companies to obtain millions of dollars in Social Security benefits intended for the most vulnerable children in state care each year, according to a review of hundreds of pages of contract documents. A private firm that Alaska used while Hunter was in state care referred to acquiring benefits from people with disabilities as "a major line of business" in company records. ...

In a Marshall Project/NPR survey of all 50 state child services agencies, most pointed out that it is legal for them to apply to the Social Security Administration to become the financial representative for foster children's benefits — though federal regulations state that a parent, foster parent, relative or family friend is preferred. Almost all said they take kids' money as reimbursement for the cost of foster care, putting the funds in individual accounts to recoup what the state has paid for each child's room and board. ...

The state of Alaska is currently facing a landmark class action lawsuit over this practice that may reach the state Supreme Court later this year. ...

In the 2003 U.S. Supreme Court case Washington State v. Keffeler, 39 state attorneys general argued that losing foster children's survivor and disability benefits could potentially cost state governments billions of dollars for years.

Daniel L. Hatcher, a law professor at the University of Baltimore and a leading expert on this practice, said it invites a larger question about the role of government. "I think sometimes these officials are so in the weeds of getting funding however they can, they don't even realize that this is not just another funding stream — this is literally children's own money," Hatcher said. "This is about whether we're going to use abused and neglected children's own money to pay for what we're supposed to be providing them as a society." ,,,

What's Up?

      I have written about Social Security failing for over a year to update the numbers it made publicly available on payments of attorney fees. They've finally posted those numbers. However, Social Security has stopped updating a much more important set of numbers, those on the number of disability claims filed and approved. These had been regularly updated each month until the end of 2020. Since then, nothing. As I say, this is a much more important set of numbers, especially now with people wondering about the effects of the pandemic.

     What's up?

400,000 Not Getting The Relief They Deserve

     From Forbes:

Student loan borrower advocacy organizations filed a formal petition today, calling on the Biden administration to grant automatic forgiveness to hundreds of thousands of disabled student loan borrowers who may not even realize that they qualify for a discharge. ...

To be granted a TPD [Total and Permanent Disability] Discharge, however, disabled student loan borrowers must submit a formal application, which can be a cumbersome process, particularly for borrowers who suffer from severe physical and psychological impairments. The Department of Education has authority to automatically grant a TPD Discharge to disabled student loan borrowers who are receiving Social Security Disability benefits, if they have a disability review period of at least five to seven years. The Social Security Administration has identified approximately 400,000 disabled student loan borrowers who would qualify for relief, and the agency has shared that information with the Department of Education. But, the Department has not acted to cancel the student debt balances of these borrowers. Many borrowers do not even realize that they qualify, and most have not submitted applications. ...

The petition calls on the Department to use the information it already has regarding the disabled status of these 400,000 borrowers to automatically forgive their student loan debt. In 2019, the Department was able to implement widespread automatic TPD discharges for borrowers identified by the Veteran’s Administration as totally and permanently disabled due to a service-connected disability. Advocates argue that the Department should enact a similar automated discharge system for borrowers determined to be disabled by the Social Security Administration, as well. ...

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?