Supreme Court Refuses To Hear Conn Case

      The Supreme Court has declined to hear one of the Conn cases. The issue in this case is the statutory provision requiring that the agency act “immediately” when it detects fraud. In the Conn cases the agency didn’t act for 15 years. Did this failure give affected claimants who were not themselves guilty of fraud (their lawyer, Eric Conn, was the one who did that) a get out of jail free card? The lower courts didn’t buy that argument and the Supreme Court has refused to hear the case.

ALJ Hiring

      Social Security has posted an announcement that it is accepting applications for Administrative Law Judge positions. The announcement is only open until Wednesday.

It’s Hard To Administer SSI

      From a recent report by Social Security’s Office of Inspector General:

… SSA’s SSI financial account validation process for applicants and recipients who alleged having less than $400 in financial accounts did not always lead to accurate SSI determinations. SSA’s process led it to make inaccurate SSI resource determinations for 27 of the 140 recipients reviewed. Based on these determinations, SSA paid the recipients $130,430 in SSI payments they were not eligible to receive. Based on these sample results, we estimate SSA incorrectly made SSI resource determinations that led to 198,960 recipients receiving $718 million in SSI payments for which they were not eligible because applicants/recipients under­reported their financial account balances by $100 or more. 

SSA’s policy did not require that it validate the recipients’ financial account balances because they alleged they had less than $400 in liquid resources. The AFI reports we requested identified 102 of 140 applicants/recipients under-reported their financial account balances by $100 or more. Additionally, the AFI reports showed 28 of the applicants/recipients owned financial accounts of which SSA was unaware. Based on these sample results, we estimate 800,140 applicants/recipients under-reported their financial account balances by $100 or more, with 219,640 failing to report all the financial accounts they owned to SSA. ..

 

Rep Payee Problems

     From a recent report by Social Security’s Office of Inspector General:

SSA did not ensure employees made complete and accurate capability determinations for disabled beneficiaries who previously had payees.  We estimate, for approximately 19,000 disabled beneficiaries who previously had payees, there was no evidence SSA determined the beneficiaries were capable of managing, or directing the management of, their benefits.  In addition, there was no evidence SSA performed proper follow-up development.  SSA paid approximately $887 million in benefits directly to these beneficiaries without evidence to show they were capable of, or were, using the benefits to meet their basic needs.  Finally, we estimate SSA did not properly document capability determinations for approximately 6,700 beneficiaries. 

This occurred because SSA did not have effective system controls to ensure employees properly documented their capability determinations.  Additionally, SSA did not have controls to ensure employees authorized direct payments to incapable beneficiaries in accordance with SSA’s policy and properly performed the follow-up reviews after they made interim direct payment to those 

Social Security Beginning To Text With Claimants

     From Emergency Message EM-25051:

... Prior to September 28, 2024, technicians used email as the sole means to communicate with customers to initiate an Upload Documents request. eSignature/Upload Documents had required technicians to obtain customer consent prior to sending emails requesting document submissions.

Effective with the release on September 28, 2024, eSignature/Upload Documents will no longer require the collection of customer consent in TED for email messaging.

Additionally, text messaging will be added as a communication option in TED. Technicians must collect customer consent before sending text messages. ...

List Of Non-Attorney Reps

     Social Security makes periodic general voluntary releases of materials for which Freedom Of Information Act requests have been made. They have recently released what they describe as "CY 2021 Non-Attys Eligible for Direct Fee Payment (Redacted under b6)."

    I don't understand this list. It purports to show 44,134 non-attorney reps eligible for direct payment of fees. That can't possibly be right, can it? The list contains at least 40 times more names than what I would have expected.

ALJ Hiring?

      Posters on an online message board mostly frequented by wannabe Administrative Law Judges seem convinced that Social Security will soon be hiring more ALJs. We’ll see.

New Requirement For Those Representing Claimants

     Social Security has issued a newly amended section of its HALLEX Manual on Rules and Standards Governing The Conduct Of Representatives. By the way, HALLEX doesn't stand for anything. It's just the name of the agency's Hearings and Appeals Manual. This part of the section appears to be new:

 [A] representative must: ...

Disclose in writing, at the time a medical or vocational opinion is submitted to SSA or as soon as the representative is aware of the submission, if:

1. The representative's employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or

2. The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence.

NOTE 1:

The agency must report to the Office of Management and Budget (OMB) the number of disclosures received pursuant to 20 CFR 404.1740(b)(5)-(9) and 416.1540(b)(5)-(9). To assist with disclosure reporting requirements, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff will ensure that any disclosures described in this subsection (Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-1-40 A.5.) are filed into the electronic claim(s) file (eView) using the document type “Required Disclosure – Medical (3076)” or “Required Disclosure – Vocational (1088),” depending on the type of evidence submitted with the disclosure.

NOTE 2:

A representative must submit a separate disclosure each time they submit opinion evidence that meets the requirements in 20 CFR 404.1740(b)(5) and 416.1540(b)(5) and described in this subsection. A single disclosure for multiple opinions that meet those requirements is not sufficient. ...

    I question whether the agency can impose an affirmative duty such as this "Required Disclosure" in a footnote to a staff manual. How does a mere staff manual bind members of the public? Doesn't this require notice and comment under the Administrative Procedure Act? If nothing else, this appears to violate the Paperwork Reduction Act.

    It's unclear whether this provision applies to forms provided by attorneys to doctors to complete. Generally, attorneys place a legend on these forms saying where the form came from in order to satisfy the agency. Does this special reporting requirement apply to situations where the attorney merely provides a form but does not help with completing the form?