Attorney Advisor Program Extended

     From today's Federal Register:

We are extending for six months our rule authorizing attorney advisors to conduct certain prehearing proceedings and to issue fully favorable decisions. The current rule is scheduled to expire on February 5, 2018. In this final rule, we are extending the sunset date to August 3, 2018. We are making no other substantive changes.

     However, there have been few attorney advisor decisions in recent years and none recently. If Democrats were to take control of the House of Representatives in this November's election, expect the attorney advisor program to ramp up quickly. The reason is pretty clear. Social Security officials know that Congressional Republicans don't really care about backlogs but do want as few disability claims approved as possible.

The Hearing Backlog And MS

     The Philadelphia Inquirer is reporting on the effects of Social Security's horrible hearing backlog. Note that the article focuses on the case of a young woman suffering from multiple sclerosis. Where I practice they seem to be turning down almost all the MS cases at the initial and reconsideration levels. Maybe ten years ago I might take on one MS case a year. Now I may take on one a month.  That's me personally. I'm sure my firm takes on many more than I take on personally. The disease didn't change. The definition of disability didn't change. The agency's regulations didn't change in a way that would especially affect MS. Social Security never announced a change. However, it's clear to me that some person or persons decided to change the agency's practices and then used the secretive quality assurance process to effect the change. In the end, I win the vast majority of the MS cases but there's way too much unnecessary suffering in the meantime and too many claimants who get so discouraged that they drop their cases without ever consulting with an attorney. They don't go back to work. They just rely upon other income or on family and friends. More than a few just get poorer and poorer for years before finally becoming so desperate that they file a new claim and pursue appeals.  MS isn't a rare disease but it's not so common that I should be seeing about one new MS each month.  This is a terrible way to treat very sick people.

Senator Warren Challenges Social Security Information Exchange With Department Of Education

     From a letter from Senator Elizabeth Warren to the Inspector Generals at the Department of Education and the Social Security Administration (footnotes omitted):

I write to request that you inspect and examine whether the Department of Education ("the Department" or ED) violated its information exchange agreements with the U.S. Social Security Administration ("SSA") in order to establish a scheme to limit relief to thousands defrauded borrowers under its Borrower Defense for Repayment ("Borrower Defense") authority.

On December 20th, 2017, the Department announced a new plan and formula to limit debt relief to former Corinthian College students and other defrauded student borrowers by comparing their average earnings to students who graduated from similar vocational programs of study.

The Department stated in its press release that, "[s]tudents whose earnings are at 50 percent or more of their [Gainful Employement] program peers will receive proportionally tiered relief to compensate for the difference and make them whole." It appears the Department plans to use federal earnings data produced from federal tax records to calculate partial relief for defrauded student borrowers. The Department obtained these federal earnings data through an information exchange agreement between the Department and SSA for aggregate earnings data.

I have a number of concerns with this plan, including whether it is allowed under the current information exchange agreement between the Department and SSA. On December 20th, 2017, The Washington Post reported that SSA provided an "unofficial, non-legal, staff-level" opinion that SSA staff"do[es] not believe (the Education Department] would be authorized to use earnings information [SSA] provide[s] under any current agreement to make decisions about whether or not to grant debt relief to borrowers in certain vocations. "

I am troubled by the Department's potential misuse of federal earnings data acquired from SSA through an information exchange agreement in order to limit loan relief for defrauded students....

OHO Workload Analysis Report

     This was obtained by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in their newsletter, which isn't available online:

Click on image to view full size

     I'll draw your attention to four things:

• The agency had, on average, 51,444 hours of overtime per month in fiscal year (FY) 2017, which ended on September 30, 2017, but only an average of 35,869 hours per month in October and November 2017. That's 30% less. This hurts productivity. Why the reduction in OT? It's the appropriations situation. The federal government, including Social Security, is operating on a continuing resolution rather than a real appropriation. They're supposed to be spending at the FY 2017 rate. That's already a reduction in spending power because of the effects of inflation. However, the Senate is threatening to cut Social Security's operating budget below the FY 2017 level in absolute terms. I'll speculate that Social Security is being cautious and is only spending at a rate consistent with the Senate appropriations bill. The first thing that gets cut is OT. If the agency gets the same dollar amount as in FY 2017 (which, again, is, in effect, a cut because of the effects of inflation), expect a sudden surge in overtime. In general, Social Security is addicted to OT. They can easily turn the OT spigot on and off allowing them to quickly adjust to the ever changing appropriations situation. That's no way to run a business. OT costs more. OT reduces productivity. You can only assign so much of the blame to Congress. If you're still using a lot of OT even in a bad budget situation, as is the case now, you need to hire more employees. Yes, they take time to train but you need more employees. By the way, it's not just OHO that depends on OT. There's beeen a noticeable slowdown throughout the agency since October 1.
• The senior attorney decisions have gone down from nearly nothing in FY 2017 to completely nothing in October and November.
• The number of Administrative Law Judges (ALJs) available was only 1481 as of November. Social Security likes to talk about all ALJs they're hiring. They don't like to talk about the fact that all they're doing is replacing ALJs who retire, quit, become disabled or die.
• The Office of Hearings Operations (OHO) staff is having trouble adjusting to its new name. This report is labeled "ODAR Workload and Performance Summary." By the way, seriously, don't pronounce OHO as Oh-Ho. That  pronunciation has very unpleasant connotations for Spanish speakers.

Social Security Seeks Input

     From a notice published by Social Security in the Federal Register (footnotes omitted):

This request for information (RFI) seeks public input on strategies for improving the adult economic outcomes of youth ages 14 to 25 with disabilities receiving SSI. ...

While studies have shown that transition-age SSI recipients are at risk of poor economic outcomes--lower earnings and employment--when they become adults, it is not clear what supports could improve these outcomes or who should provide them. ...

This RFI offers interested parties, including States, community-based and other non-profit organizations, philanthropic organizations, researchers, and members of the public, the opportunity to provide information and recommendations on effective approaches for improving adult outcomes for youth receiving SSI. ...

SSA's redetermination of SSI eligibility at age 18 also generally results in 30-40 percent of youth losing SSI eligibility (and the accompanying automatic Medicaid access that most SSI recipients receive) because their condition does not meet the adult standard for disability. The Government Accountability Office (GAO) has noted that these issues contribute to the difficulties many child SSI recipients experience transitioning to adulthood. 

Several studies of transition-age SSI recipients suggest significant gaps exist in the awareness and use of services and policies currently available to youth. For example, prior to age 18, less than one quarter of SSI recipients received vocational training. About 40 percent of 16- and 17-year-old SSI recipients work, but only about 3 percent of eligible SSI recipients (of all ages) use the student earned income exclusion, a work incentive that excludes a certain amount of earned income from the SSI calculation. ...

SSA has recognized the difficult transition to adulthood and that many of these youth return to the SSI program in early adulthood. ...

We ask respondents to address the following questions, where possible, considering the context discussed in this document. You do not need to address every question and should focus on those that relate to your expertise or perspectives. To the extent possible, please clearly indicate which question(s) you address in your response.

Questions:

     1. What specific programs or practices have shown promise at the Federal, State, or local level in improving the adult economic outcomes of youth with disabilities receiving SSI?

     2. Given the requirement of VR agencies to serve transition-age individuals, the availability of Individualized Education Programs (IEP) and Section 504 plans in school settings, and the availability of services and supports elsewhere available to youths, what should SSA's role be in assisting the transition of youths to adulthood?

     3. How might SSA better support other agencies' youth transition-related activities?
          a. What SSA policies interact with other agencies' services and supports?
         b. Do SSA's and other agencies' policies need to be modified (technically or administratively) to improve utilization of these services and supports? How?

     4. Are there aspects of SSA's publications, mailings, and online information that SSA can improve to better support successful transitions to adulthood of youths receiving SSI?

     5. How can SSA improve its existing work incentive policies, such as the Student Earned Income Exclusion (SEIE) and Impairment-Related Work Expenses (IRWE), to better support and increase SSI youth engagement in work? Are there alternative models that SSA should consider to replace existing work incentives?

     6. How can SSA enhance and better target its existing service infrastructure including its Work Incentive Planning and Assistance (WIPA) program and Plan to Achieve Self Support (PASS), to increase SSI youth engagement in work and work activities?

     7. What lessons from SSA's youth demonstration projects, in particular the Youth Transition Demonstration (YTD) and the Promoting Readiness of Minors in SSI (PROMISE) project, should SSA apply to new policies and demonstrations? What partners were not included in those demonstrations that should have been? Why?

     8. If SSA were to conduct a new demonstration project related to youth, which populations should SSA consider targeting, if any? How can SSA identify these populations? How many individuals enter these populations per year?

     9. Are there entities (for example, State VR agencies, medical practices, local education and training agencies, etc.) we could look to as exemplars based on current practices for serving youth with disabilities? What evidence exists to suggest these sites are effectively providing services that would lead to the increased self-sufficiency of youths with disabilities?

     10. In the absence of legislation renewing SSA's ability to refer Social Security Disability Insurance (SSDI) beneficiaries and SSI recipients directly to VR, how can SSA help connect youth to VR services?

     11. Should SSA expand the Ticket to Work (Ticket) program to include children or create a separate program for children with a similar mission (i.e., reimbursing service providers whose services result in increased employment and reduced need on cash benefits)?
         a. What services should such a program provide over and above the services youth with disabilities receiving SSI are already eligible for?
         b. What types of service providers should be allowed to participate in a youth Ticket program? Should such a program include all types of existing employment network providers or should it be limited organizations with existing providers that serve the broader youth population?
         c. Is there a lower age limit the Ticket program (either the current program or a new child-specific program) should include that is consistent with other common Federal, State, and local policies that promote self-sufficiency?
        d. Since most children are in school, what outcomes or milestones should a
program that included payments for child outcomes be tied to?
         e. How effective are such incentive payments to service providers likely to be when serving youth? Are there alternatives to current incentive payment structures that SSA should consider (e.g., a payment structure based on state-wide youth employment or youth SSI participation metrics)?
         f. How should the age-18 redetermination and the fact that over one-third of age-18 redeterminations result in the cessation of benefits because they do not have a condition that meets the adult standard for disability factor into such a program?
          g. Are there specific populations among SSI youth, such as youth in foster care, that such a program should consider for allowable services, providers, and expenditures?
         h. Would such a program be duplicative of the services provided by State VR agencies, which are already required to support the transition of youth with disabilities? Why or why not?

     12. Since the implementation of WIOA, are there specific examples of effective services that are funded through the PROMISE grants but not funded through State VR agencies or other Federal and State funding sources?...

     I can talk about something that I used to see that I don't see anymore even though it seemed effective. In the past, workers for the state Vocational Rehabilitation (VR) agency were in regular contact with school guidance counselors to identify disabled high school age children.  These children were offered VR help in making the transition to work. As appropriate, VR offered counseling, VR paid for post-high school training, VR offered sheltered workshops, VR used contacts with sympathetic employers to help at risk young people find employment, and VR offered job coaches. This has almost completely ended in North Carolina. It especially troubles me that there are no more sheltered workshops. You don't need a Ph.D. in VR to figure out that these sorts of services can be invaluable to disabled young people. Why did they stop? It's lack of operating funds for VR. The Social Security Administration can't solve this problem but Congress certainly can and should.
     I can and do refer disabled young people to VR. Every time I do, the parents tell me that they can't understand why no one at the school ever told them about VR. However, even after the young person gets to VR, it seems that they now receive only very limited help. It's nothing like it used to be.
     Please, let's give adequate funding to VR. They can do good work if we'll let them have enough funding.

$40,000 In The Bank Of Guatemala

     From a Kentucky television station:

As former fugitive attorney Eric C Conn prepares to most likely lose his money and property in a settlement of fines, the attorney submitted a motion to request a public defender. ...

In the motion filed Friday, Conn states, “First, the Defendant qualifies financially. He has no assets or resources, liquid or otherwise. The United States has obtained judgments against Defendant for restitution, fines, civil damages and bond forfeiture in the tens of millions of dollars” 

Conn further writes that his only income has been fee checks from Social Security, and those are now being taken by the government. He further says that all of his property has been seized, and the only remaining bank account he had was an anonymous account with the Bank of Guatemala. Conn writes that the account initally, "had $40,000. By time taken in custody, I was no longer able to withdraw money, so think it had been depleted (sic)." ...

What Trying To Deal With Social Security Is Like

     I thought I would post some actual notes made in my firm's database recently concerning four different clients:

1) I called PC 3 [Payment Center 3, in Birmingham, AL] again [to ask why a client who was approved several months ago hasn't yet been paid], rings twice then drops. ridiculous. I checked internet to make sure I had most current #, I do. I called a different mod [part a payment center] to see if they would transfer me. on hold now. The guy who answered says # is correct. He can't get through either. Says computer says something was done 12/6/17 but all it says is diaried for mid January. They won't tell me anything until then. Why not? I did tell him fee was already approved, they don't need to fu [follow up] on that. Do that have that? He says, "oh, yes." He tried to transfer me, again rang twice and dropped.

2) t/c [telephone call] to John at Payment Center [to ask why a client who was approved several months ago hasn't yet been paid] -  sat on hold for over 45 mintues to talk to someone.  Called back several times this am and could get NO ONE to answer.

3) 10/12/17-attempted tc w/PC [about another client who hasn't yet been paid] (205 801-4430), still no answer. ...

10/17/17-attempted tc again w/PC, let it ring until line disconnected.  

11/01/17-attempted tc w/PC (and several other x's not entered), still no answer and disconnects. 

11/02/17-tc w/the main PC, they gave me a different #.   When I try that one, they refer me back to the 1 I was called to begin with.  Please!!  Now I have a mgr's #.  But of course, no answer there. ...

4) [Called] PC 3 205-801-3680. - says vm is full, transferring to attendant then says "fowarded to a vm system" and keeps repeating that cycle. Can't leave vm. I tried several different times during the day today

5)  I have been calling different mods at PC 3 for 2 weeks. I cannot get anyone to answer at all. Last week, a different mod in PC3 told me that one particular MOD was having phone issues. Today, I literally called all 14 numbers (including the mod I called and spoke to last week). 12 of them rang until it disconnected. 1 recording said all agents are busy then said transferring to voicemail (but didn’t actually transfer me) and 1 is just crazy, bounces call around to several places without anyone ever picking up.

     I could copy many more such notes but you get the picture. Social Security's payment centers, where benefits other than Supplemental Security Income are computed and authorized, are often almost impossible to communicate with. We deal more with PC 3 than the others but they all have problems. The field offices which often have to coordinate with the payment centers in order to get benefits paid aren't much better.
     This isn't happening because Social Security employees are lazy or inefficient. Of course, there are a few Social Security employees who fit in that category but no more than you would expect to find at any large institution. The problem is that there just aren't enough Social Security employees to get the work done. Work backs up. One way of trying to cope with ever increasing backlogs is to spend your time working on the backlog instead of dealing with telephone calls but many of those calls concern problem cases where the payment center has made a mistake that they're not aware that they've made.

     By the way, if you work at a hearing office, don't think you have a good handle on what Social Security attorneys do. This post concerns just one of the many things we do that you would have no clue about.

Happy New Year