Could This Sort Of Thing Happen Here? It Already Is!

     From Government Executive:

...  In Australia, the government set off on a radical plan to reduce overpayment of government benefits in 2016. ...

The Australian government had been manually searching for overpayments in programs for retirees, people with disabilities and students, among others. The 2016 program used algorithms to search out overpayments and send the bills. Christened “Robodebt,” the algorithm checked each individual’s payment against the average income of people in similar circumstances. If the algorithm determined that the person was likely overpaid by the government, it generated a bill.

Robodebt allowed the government to review 20,000 cases per week, instead of the 20,000 cases per year in the manual system it replaced. Government officials no longer had to contact employers to obtain data on employment history and payroll amounts, and the government no longer had to prove an individual had been overpaid. Instead, individuals had to prove that they had received the correct amount. If individuals didn’t pay quickly, debt collectors went to work.

The government launched Robodebt fast and claimed credit for catching recipients who had benefited from mistakes in the system. But many people receiving the notices were distraught. They often had to come up with big payments in just a few weeks. Some people had to sell their cars or take out loans, which was a huge burden on some of the country’s neediest residents. Others drained their meager savings. At least three people committed suicide, a Royal Commission found in a devastating 1,000-page report.

An investigation revealed that some repayment notices were incorrect. Some simply were false. Moreover, a 2019 court challenge found that Robodebt had violated important provisions of Australian law.

In July 2023, the Royal Commission pointed to “Robodebt’s unfairness, probable illegality, and cruelty.” When problems surfaced along the way, the commission concluded, “the path taken was to double down, to go on the attack in the media against those who complained and to maintain the falsehood that in fact the system had not changed at all” from the previous system. ...

    Could this happen here? To a great extent, it already is happening. Republicans, abetted by Social Security's Office of Inspector General, have long implied that all overpayments are the result of fraud and that the agency must be merciless in collecting these debts. Recently they have been blaming the agency for not creating overpayments automatically based upon data from payroll companies. Already, there is no statute of limitations, those informed of alleged overpayments are given no information about how the alleged overpayments occurred, and all benefit payments are seized until the desperate claimant asks for a repayment schedule. It's harsh by design despite the fact that the agency often has no basis in fact for asserting an overpayment and many overpayments are due to mistakes made by Social Security. The current attitude is that if the computer says there's an overpayment, there must be an overpayment. It could all get worse with artificial intelligence.

New Issue Of Social Security Bulletin

     There's a new issue out of the Social Security Bulletin, the agency's scholarly publication, now in its 83rd year. This issue features articles on Public Knowledge About The Social Security Retirement Programs: Differences By Race And Ethnicity and Why Are Women More Pessimistic About Social Security's Future Than Men?

I Love The Disguise Part!

Only an illustration

     From a press release:

A 38-year-old Harlingen [TX] resident is now in custody on allegations he created false profiles to steal government money ...

Authorities arrested Lee Marvin Nichols today. ...

According to the three-count indictment, returned June 27, Nichols was a claims specialist at the Social Security Administration (SSA) in Harlingen.

Nichols allegedly created fictitious profiles for two children that did not exist. The indictment alleges Nichols linked the profiles of the fictitious children to a recently deceased man and a disabled woman living in Mexico in an attempt to create survivor benefits application.

Nichols used debit cards issued to the children to withdraw funds, according to the charges. When he would obtain the funds, he allegedly attempted to disguise himself by using hats pulled down over his face, sunglasses, balaclavas and other clothing to conceal his appearance.  ...

    What was the point of the disguises? His digital fingerprint was all over the cases at Social Security.

Proposed Rule Recognizing The Fact That There Are Such Things As Law Firms

     A Notice of Proposed Rule-Making (NPRM) from today's Federal Register:

We propose to revise our regulations to enable us to directly pay entities fees we may authorize to their employees, as required by the decision of the United States Court of Appeals for the First Circuit (First Circuit) in Marasco & Nesselbush, LLP v. Collins. To make direct payments, issue the necessary tax documents, and properly administer these rules, we propose to require all entities that want to receive direct payment of assigned fees and all representatives who want to be appointed on a claim, matter, or issue to register with us. We also propose to standardize the registration, appointment, and payment processes. We expect that this proposed rule will help us implement the changes required by the Marasco decision, increase accessibility to our electronic services, reduce delays, and help us prepare for more automation, thereby improving our program efficiencies.

    This should have been done over 30 years ago but better late than never. 

    By the way, I have no idea how this got into the Federal Register. These things have to be approved by the Office of Management and Budget and OMB never listed this as pending approval on its website. I don't think I've ever seen this before. It's not listed now as having been approved by OMB even though the NPRM itself shows that OMB was involved.

A Modest Suggestion

     Supplemental Security Income (SSI) computation is cash based, rather than what accountants call accrual based. It's a needs based program so benefits are subject to reduction due to income received. Because it's cash based, it's the income you received at the time, rather than what was owed to you at the time. There's one big exception to this, the Windfall Offset. When a claimant is approved for back benefits for both SSI and a Title II Social Security disability benefit, usually Disability Insurance Benefits, the Windfall Offset is supposed to, in effect, reduce the SSI as if the Title II benefit had been paid at the time it was due, that is, for this one exception, to compute benefits based upon the accrual method.

    On its face the Windfall Offset presents obvious difficulties for Social Security but along the way things became Byzantine. Reducing the SSI for the Windfall Offset presented a big potential problem at the time it was passed. If you apply the Windfall Offset to reduce SSI, you often wipe out all SSI benefits. This is a problem because those who are eligible for SSI are categorically eligible for Medicaid. Wipe out the SSI and you've wiped out the retroactive Medicaid entitlement as well. This actually doesn't matter that much for the claimant. They’re never going to be able to pay those bills anyway. However, it matters a lot to hospitals who may be on the hook for hundreds of thousands of dollars of care they've provided the claimant if that claimant doesn't get back Medicaid.

    To prevent this Social Security decided to run the offset in the opposite direction. The Title II benefits are reduced by amount by which the SSI benefits should have been reduced if the Title II benefits were paid at the time due. That sounds complicated but throw in the fact that the field office computes the SSI and a Title II payment center computes the Title II benefit and you've got a much more complicated situation. The field office must compute the amount by which the SSI should have been reduced and communicate that fact to the Title II payment center. In case you don't know, Social Security's components aren't good at communicating with each other. The problems don't end there, though. For historic reasons I'm not going into here, the Title II attorney fee is based upon the amount of back benefits before the Windfall Offset. This means it's an artificial figure. That requires an adjustment in the SSI attorney fee so that fee is artificial as well. It's also complicated because the Windfall Offset is supposed to be based upon the amount of Title II benefits after the attorney fee and that's been difficult for Social Security to do. It's led to a couple of class action lawsuits and I'm not sure that Social Security is getting it right to this day. As I said, it's Byzantine. 

    Isn't it time to cut through this Gordian Knot? By now the vast majority of states have accepted the expansion of Medicaid benefits enacted during the Obama Administration. The rest can do so at any time. This means that the potential for hospitals and providers to be stuck with never being reimbursed for services they've provided is far, far less than it used to be. I say the hell with those benighted states that have refused Medicaid benefits for their low income citizens. Apply the Windfall Offset in a natural way. Reduce the SSI benefits rather than the Title II benefits. This dramatically simplifies Social Security's work. Probably hundreds of thousands of hours of unnecessary work at Social Security each year will end. As far as I'm concerned, the hospitals in the states that have refused the extra Medicaid can complain to their state legislatures rather than Social Security. The agency lacks the resources to protect those hospitals from the folly of their state governments.

    To the best of my knowledge, what I'm suggesting doesn't require legislation or even a change in the regulations. 

    I understand that in theory this could delay first payment of benefits to a claimant from SSI but what I'm seeing now is that those approved for both SSI and a Title II benefit generally receive a monthly Title II payment first anyway. Do as I am suggesting and it's not just one month of benefits paid. It's all the back Title II benefits. That would be far better than the three or four month time frame it's taking Social Security to finish all the Windfall Offset computations in each case. Don't raise any tax issue. The population I'm talking about isn't going to pay taxes on their Social Security benefits anyway.

    By the way, kudos to you if you have read my post about this tedious subject to the end. You're a Social Security pro. You may or may not agree with me but you know what I'm talking about. I wonder whether there are any Congressional staffers who get this far.

More On Supreme Court Ethics

      Because an article about Supreme Court ethics issues I quoted mentioned a gift offered by a Social Security claimant to a federal judge, I posted about it here. The problem isn't limited to Justice Thomas but he is the prime offender because of his acceptance of gifts and lavish vacations from those interested in the work of the Court.

     I thought I was mostly writing for other attorneys who knew a little about judicial ethics but many of the comments made here were along the lines of “Well, you can’t prove Justice Thomas changed his vote because of what he received so there’s no problem.” Let me clue in the non-attorneys. There is a code of conduct for federal judges. Canon 2 of those rules is titled “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.” I’m sure that just about every state judiciary has the same rule. I don’t think you can reasonably argue that there’s no appearance of impropriety in Justice Thomas’ conduct. So why hasn’t this story blown up even more than it has? The code of conduct for federal judges doesn’t apply to Supreme Court justices. There is no code of conduct for Supreme Court justices.

     The lack of a code of conduct for Supreme Court justices is shocking. Even without a rule in place, Thomas’ conduct is shocking.

This Year's COLA To Be Around 3%

     The New York Times reports that current projections are that this year's Cost Of Living Adjustment (COLA) for Social Security benefits will be around 3%, down from last year's 8.7%.

A Message To Staff From The Acting Commissioner

Sent: Wednesday, July 26, 2023 1:57 PM

To: A Message to All SSA and DDS Employees

Subject: President to Nominate Martin O'Malley as SSA's Commissioner

Today, President Biden announced his intent to nominate the Honorable Martin O’Malley as SSA’s Commissioner.  Governor O’Malley’s previous public service positions include the Mayor of Baltimore and the Governor of Maryland.  If confirmed by the Senate, Governor O’Malley would bring a wealth of experience in running a large and complex government agency. 

I will remain the Acting Commissioner through the confirmation process.  I look forward to continuing to lead this amazing agency and making progress on service improvements.

As always, thanks for all you do.

Kilolo Kijakazi, Ph.D., M.S.W.
Acting Commissioner