Final Regs To Omit Food From In-Kind Support And Maintenance To Become Effective On September 30 But SSA Seems To Be Worried About Litigation

     Social Security will publish final regulations to omit food from in-kind support and maintenance calculations for purposes of Supplemental Security Income tomorrow. The change will not become effective under September 30, 2024. That's an awful long lead time.

    By the way, the notice contains the following language:

Severability

In the event of an invalidation of any part of this rule, our intent is to preserve the remaining portions of the rule to the fullest possible extent. In particular, we intend the clarification of consideration of others in the household in 20 CFR 416.1131 [on the 1/3 reduction rule] to be severable, as it better explains our current policy and functions independently of the other changes reflected in this final rule. We also intend the clarification of constructive receipt of income in 20 CFR 416.1102 [defining what is income] to be severable, as it better explains our current policy and functions independently of the other changes reflected in this final rule.

Definition Of Public Assistance Regulations Advances

      The Social Security Administration has asked the Office of Management and Budget (OMB) to approve these final regulations:

We propose to expand the definition of a public assistance (PA) household for purposes of our programs, particularly the Supplemental Security Income (SSI) program, to include the Supplemental Nutrition Assistance Program (SNAP) as an additional means-tested public income maintenance (PIM) program. In addition, we seek public comment on expanding the definition to include households in which any other (as opposed to every other) member receives public assistance. We expect that the proposed rule would decrease the number of SSI applicants and recipients charged with in-kind support and maintenance (ISM). In addition, we expect that this proposal would decrease the amount of income we would deem to SSI applicants or recipients because we would no longer deem income from ineligible spouses and parents who receive SNAP benefits and live in the same household. These policy changes would reduce administrative burden for low-income households and SSA.

Rep Payee Fighting Overpayment

     From WMAR:

A Maryland senior is fighting an overpayment notice from the Social Security Administration. The additional money was supposedly paid out to her brother, but now the agency is withholding her monthly retirement benefits.

“They caught their mistake and tried to collect the money, but he had passed," said Everlon Moulton, whose brother died in 2006. Moulton said shortly before then, she had become his financial representative. ...

According to a letter sent to Moulton last November, Congress passed a law permitting the Social Security Administration to collect Supplemental Security Income (SSI) overpayments from the individual's payee. The SSA identified payments to Moulton's brother, while he was still alive, that exceeded the amount he should've received. Moulton said she never used money designated for her brother and was informed that $233 will be deducted from her monthly retirement benefits until the nearly $6,900 overpayment to her brother is settled. ...

    If she only became the representative payee shortly before her brother died how did she become responsible for a debt that must have accrued before she became involved?

Believe Them When They Keep Telling You Where They Stand

     From Bloomberg:

... The Republican Study Committee, which comprises about 80% of House Republicans, called for the Social Security eligibility age to be tied to life expectancy in its fiscal 2025 budget proposal. It also suggests reducing benefits for top earners who aren’t near retirement, including a phase-out of auxiliary benefits for the highest earners. ...

Social Security's Inspector General Is A Disgrace

     From Lisa Rein at the Washington Post:

The Social Security Administration’s internal watchdog office failed to properly notify some poor and disabled Americans before levying huge fines on them, an investigation by an independent watchdog agency found.    

The two-year probe into a little-known anti-fraud program discovered particularly stark due process violations starting in 2018, with investigators finding no evidence that the government ever sent written notice to some of those hit with massive penalties, which at times reached more than $100,000. Even when the inspector general’s office, which runs the program, did send notification letters in previous years, investigators found it often failed to properly serve people with notice of the proposed fines. ...

[The investigators] took the unusual step of urging the Social Security Administration to review every penalty the government has issued under the Civil Monetary Penalty program since 1995, to notify claimants who were fined and to take “corrective action.” ...

More Details On Plan To Reduce Overpayment Harshness

     From a press release:

Social Security Commissioner Martin O’Malley today announced he is taking four vital steps to immediately address overpayment issues customers and the agency have experienced. ...

1. Starting next Monday, March 25, we will be ceasing the heavy-handed practice of intercepting 100 percent of an overpaid beneficiary’s monthly Social Security benefit by default if they fail to respond to our demand for repayment. Moving forward, we will now use a much more reasonable default withholding rate of 10 percent of monthly benefits — similar to the current rate in the Supplemental Security Income (SSI) program.
2. We will be reframing our guidance and procedures so that the burden of proof shifts away from the claimant in determining whether there is any evidence that the claimant was at fault in causing the overpayment.
3. For the vast majority of beneficiaries who request to work out a repayment plan, we recently changed our policy so that we will approve repayment plans of up to 60 months. To qualify, Social Security beneficiaries would only need to provide a verbal summary of their income, resources, and expenses, and recipients of the means-tested SSI program would not need to provide even this summary. This change extended this easier repayment option by an additional two years (from 36 to 60 months).
4. And finally, we will be making it much easier for overpaid beneficiaries to request a waiver of repayment, in the event they believe themselves to have been without any fault and/or without the ability to repay. ...

    You may recall that on January 4 I posted on What Can Social Security Do About Overpayments If It Really Wants To? There's much similarity between what I posted then and what the Commissioner announced. I doubt that my post had anything to do with what Social Security decided to do. Both they and I were looking at statutes and regulations to see what could be done about the overpayment problems that were on the news and on the minds of members of Congress. We both came to much the same conclusion that there was plenty that could be done, especially with the "against equity and good conscience" provision in the statute. 

    By the way, I've read comments saying that Social Security is required by statutes and regulations to collect 100% of the benefits of an overpaid individual until they collect the overpayment, making the Commissioner's announcement illegal. Look at what I posted on January 4. There's ample wiggle room to default to a 10% repayment schedule as the Commissioner announced. It's pretty straight forward.

O'Malley Testimony To Senate Aging Committee -- And Note The Overpayment Changes

     Social Security Commissioner Martin O'Malley testified before the Senate Aging Committee today. Here's are some excerpts from his written testimony (emphasis added):

...Currently – due to the extended continuing resolution (CR) that we are under in FY 2024 – we have stopped all hiring, and our staffing levels have already fallen below where they were in April of last year. If we continue this path of no hiring, we will fall to a new all-time low of around 55,000 full-time permanent staff by the end of this fiscal year – nearly 11 percent lower than the roughly 62,000 full-time permanent staff we averaged from 2010 through 2019.

Similarly, the State disability determination services (DDS) were able to make some progress increasing their staffing levels in FY 2023, following years of record-high attrition and a historically low staffing level in FY 2022. But in FY 2024, the DDS have quickly dropped below last year’s staffing levels due to our pause in hiring given the funding level, which is leading to a severe setback in addressing a service delivery crisis. ...

Members may be surprised to learn that Social Security has now been reduced to operate on less than one percent of its annual benefit payments. This is extremely low – much lower than private insurance companies. For instance, Allstate operates on 19 percent of its annual benefit payments, and Liberty Mutual operates on nearly 24 percent of its annual benefit payments. ...

Under the current system, Social Security’s operating overhead, as a share of benefit outlays, has shrunk by 20 percent over the last ten years. ...

People who try to reach us by phone are now waiting on hold for 38 minutes or more on a dysfunctional 800 Number system. ...

Starting next Monday, March 25, we will be ceasing the heavy-handed practice of intercepting 100 percent of an overpaid beneficiary’s monthly Social Security benefit by default if they fail to respond to our demand for repayment. Moving forward, we will now use a much more reasonable default withholding rate of 10 percent of monthly benefits — similar to the current rate in the SSI program.

We will be reframing our guidance and procedures so that the burden of proof shifts away from the claimant in determining whether there is any evidence that the claimant was at fault in causing the overpayment. ...

Ways And Means Committee Schedules Hearing With Commissioner

     The House Ways and Means Social Security Subcommittee and Work and Welfare Subcommittee (which has jurisdiction over Supplemental Security Income) have scheduled a joint hearing at 2:00 on March 21 to hear from Social Security Commissioner Martin O'Malley.

    Whoever scheduled this can't be much of a sports fan. March Madness, y'all! Can't wait to get my brackets busted.