Disability Benefits Project

On January 30, 2008, the Social Security Administration announced that the agency would suspend certain parts of a proposed regulation that would sharply restrict appeal rights for severely disabled individuals applying for benefits. The agency will seek additional public input before it proceeds with the final rules. The comment period for the notice of proposed rulemaking (72 Fed. Reg. 61218 (10/29/07)) initially closed on December 28, 2007.

In response to the proposed regulations, SSA received almost 500 comments from advocacy organizations, private bar, and disabled individuals. Eleven House Committee and Subcommittee chairs, Senate Finance Committee, and Senate Leaders also sent letters objecting to the proposal.

The House Committee on Ways and Means promised to continue its close oversight of the agency’s efforts to overhaul the disability determination process (House Committee on Ways and Means press release, 1/30/08).

HOW SSA PLANS TO RESOLVE THE PROBLEM OF INCREASING OVERPAYMENTS

On January 31, 2008, David A. Rust, acting Deputy Commissioner for Disability and Income Security Programs, updated the Senate on the latest agency’s efforts to prevent the overpayment of SSDI and SSI benefits and to collect overpayments. According to the Deputy Commissioner, in FY 2008, SSA expects to process an additional 27, 000 medical Continuing Disability Reviews (CDR) which are estimated “to yield $10 in lifetime program savings for every $1 spent.” SSA plans to process an additional 161,000 SSI redeterminations, which are estimated to save “$7 in lifetime program savings for every $1 spent.”

Overall in FY 2008, SSA plans to conduct 1.2 million redetermiantions and 235, 000 medical CDRs (to compare, in FY 2007, SSA conducted 1 million SSI redeterminations and 208, 000 medical CDRs). In FY 2009, SSA plans to process 329,000 CDRs and nearly 1.5 million SSI redeterminations.

The Deputy Commissioner identified underreporting or nonreporting of wages as the leading cause of SSI overpayments. He asserted that “anytime an individual repots his or her wages, a receipt of the wage report is issued to the individual, as required by section 202 of the Social Security Protection Act enacted in 2004.” The statement contradicts numerous reports coming from the advocates all across the country. SSA is currently making “system enhancements” “to improve usability and expect expansion of this project in FY 2008.” It remains to be seen whether District Offices will start issuing receipts every time a work report is received.

The Deputy Commissioner sated that SSA plans to add additional “collection tools,” including “the use of private collection agencies, administrative fees, and interest charging or indexing debt to reflect its current value.”

Nothing has been said in reference to educating SSA staff about work incentives or improving the educational materials that would explain to the current and prospective working beneficiaries highly complicated rules of SSI and SSDI program.

The entire testimony is available on line-Statement of David A. Rust, Acting Deputy Commissioner for Disability and Income Security Programs, before the Senate Committee on Homeland Security and Government Affairs.

SOCIAL SECURITY RECIPIENTS GET 2.3% COLA ADJUSTMENT IN 2008

On October 17, 2007, SSA announced 2.3 % benefit increase in 2008. Social Security and Supplemental Security Income benefits increase automatically each year based on the rise in the Bureau of Labor Statistics' Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), from the third quarter of the prior year to the corresponding period of the current year. This year's increase in the CPI-W was 2.3 %, the smallest increase in four years. It will mean an extra $24 per month in the average check. SSDI benefits increased in January of 2008. SSI benefits increased on December 31, 2007.

Based on the increase in average wages, the maximum amount of earnings subject to Social Security tax (taxable minimum) will increase to $102, 000 from $ 97,500. Of the estimated 164 million taxpayers in 2008, nearly 12 million will pay higher taxes due to the increase.

SSA fact sheet is available on line at <http://www.ssa.gov/cola/colafacts2008.htm>

2008 POVERTY GUIDELINES FOR THE 48 CONTIGUOUS STATES AND THE DISTRICT OF COLUMBIA, 73 Fed. Reg. 3971 (1/23/08)

Persons in family Poverty guideline

1 .................................................... ………………………………$10,400

2 .................................................... ……………………………….14,000

3 .................................................... ………………………………..17,600

4 .................................................... ………………………………..21,200

5 .................................................... ………………………………..24,800

6 .................................................... ………………………………..28,400

7 .................................................... ………………………………..32,000

8 .................................................... ………………………………..35,600

For families with more than 8 persons, add $3,600 for each additional person.

Available at http://aspe.hhs.gov/poverty/08poverty.shtml

OFFICE OF THE INSPECTOR GENERAL ISSUES A REPORT ON ADMINISTRATIVE LAW JUDGES' CASELOAD PERFORMANCE

On February 6, 2008, OIG issued a report (A-07-07-17072) evaluating the performance of ALJs currently working for SSA. The report states that Office of Disability Adjudication and Review (ODAR) issued 558,760 case decisions during Fiscal Year (FY) 2006. These cases were processed by 1,217 ALJs. Of these ALJs, 895 were fully available to process cases and 322 were only partially available to process cases. In FY 2006, fully available ALJs processed anywhere between 40 to1, 805 cases. The average and median number of cases were 485 and 476 respectively. ODAR does not mandate currently an official minimum number of cases that an ALJ would be required to process.

The report provided detailed statistics about case processing in each region. In the Boston region, more than half out of the total of 44 ALJs in 2006 processed less than 550 cases that year.

OIG found that ODAR's ability to process projected hearing requests and address the growing backlog of cases will continue “to be negatively impacted by the caseload performance of some ALJs if their status quo performance levels continue.” The report recommended that SSA establish a “performance accountability process” that will monitor the number of decisions issued by every ALJ.

The report acknowledges that under the Administrative Procedure Act (APA) that

grants specific exemptions from the management control, SSA may not establish a performance appraisal system that is in place for other Federal employees. Despite this APA prohibition, SSA may impose disciplinary actions against ALJs when their performance falls below the applicable standards.

Specifically, the OIG report recommends SSA to:

1. Establish a performance accountability process that does not infringe on ALJ qualified decisional independence but allows ALJ performance to be addressed when it falls below an acceptable level.

2. Establish a process to identify the availability of each partially available ALJ for case adjudication and establish acceptable levels of performance based on availability.

3. Assess the caseload performance of offices where a higher percentage of ALJs process cases below the level ODAR determines to be reasonable to ascertain why performance levels were not achieved and take appropriate corrective actions.

4. Evaluate how the caseload management procedures in some regions result in a higher percentage of ALJs processing cases at the level ODAR determines to be reasonable and share best practices with other regions.

Additionally, the report states that ODAR must “also have resources necessary to make timely and accurate decisions on expected hearing requests. This includes adequate support staff to prepare cases, schedule hearings, and perform other functions necessary to enable acceptable ALJ caseload performance. Otherwise, ODAR will not be able to process all incoming hearing requests or eliminate the backlog of cases.”

SSA UPDATES FROM NOSSCR CONERENCE

According to Lisa De Soto (Social Security's Deputy Commissioner for the Office of Disability Adjudication and Review (ODAR)), who spoke at the National Organization of Social Security Claimants Representatives (NOSSCR) conference in St. Louis:

· As of September 30, 2007, SSA remanded 18,000 cases with 8,600 allowances under the "informal remand" [or re-recon] process.

· ODAR has 144,000 cases that have been waiting for a hearing for 900 days or more. Currently there are 160,000 "unpulled" cases at ODAR. Social Security has signed a contract for "e-pulling" of files. E-pulling should begin nationally by June 2008.

· There are 1,045 Administrative Law Judges (ALJs) serving at the ODAR.

· The new register from which ALJs can be hired should soon be available.

· SSA will hire 92 additional staff members to support the ALJs.

· SSA expects to start implementing its Senior Attorney program in the nearest future.

· ALJ’s will be required to hear and decide from 500 to 700 cases per year.

· SSA brought several “actions” before the Merit System Protection Board (MSPB) against ALJs in 2007.

· The pilot for a program to allow attorneys to review online the files of their clients should begin in June 2008.

Michael Astrue made the following points at the NOSSCR conference.

· In 2005, SSA had 66, 000 employees. By the end of 2007 SSA will have fewer than 60, 000 employees. This year, SSA will not be able to replace employees who leave. Disability Determination Offices (DDS) will be given funds to replace one employee for every two who leave.

· Many temporary offsite hearing office locations will be shut down. Plans to open several new hearings offices around the country have also been abandoned due to lack of funds.

· SSA is working on new regulations on the recognition of law firms and other similar entities as claimants' representatives.

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SOCIAL SECURITY ADMINISTRATION ATTACKS DISABILITY BACKLOG

The Commissioner of Social Security announced that the Administration had made progress in FY 2007 toward making faster decision on disability claims. Social Security issued a final rule on September 5, 2007, extending nationwide its Quick Disability Determination (QDD) process. Under QDD, “a predictive model analyzes specific elements of data within the electronic claims file to identify claims where there is a high potential that the claimant is disabled and where evidence of the person’s allegations can be quickly and easily obtained.”

In Region I, where the process was being tested, about 3% of all new cases were identified as QDD cases and processed in an average of 11 days. In September of 2007, Arizona, New Jersey, and North Dakota have started using QDD as part of a staged national roll-out that will be completed early in 2008.

According to the Commissioner, the Social Security Administration “virtually eliminated its backlog of FY 2007 “aged” disability hearings cases.” “Aged” cases, defined as cases pending 1,000 days or more, were reduced from 63,770 cases at the beginning of FY 2007 to 108 cases at the end of September.

In late 2007, the Agency will redefine “aged” cases as ending for at least 900 days and will attempt to resolve the cases under new definition by the end of the fiscal year. The time it takes to process initial disability claims declined 6.3% from 88.4 days in FY 2006 to 82.8 days in FY2007.

As another key part of its plan, the Social Security Administration is establishing a National Hearing Center (NHC) so that a centralized cadre of Administrative Law Judges (ALJs) can use video hearing technology to hear cases in the most backlogged parts of the country.

SSA press release is available on line at http://www.ssa.gov/pressoffice/pr/disability-backlog-pr.htm

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NEW SECURITY FEATURES ON SOCIAL SECURITY CARDS

The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), P.L. 108-458, was signed into law on December 17, 2004. Section 7213(b)(1) of the law requires the Commissioner of Social Security, in consultation with the Secretary of Homeland Security, to form an interagency Task Force to establish requirements for further improving the security of Social Security cards and numbers. The Task Force was formed in January 2006 and issued its recommendations in May 2006.

As a result of the Interagency Task Force, SSA plans to include several new security features to the Social Security Card. Some of these new features are overt. SSA has already implemented four overt features.

Changes Implemented in April 2007:

• The card issuance date was added to the front of each card. This date reflects the date that SSA processed the application for that particular card. Information about the issuance date was also added to the perforated attachment to the card.

• Signing instructions were added to the perforated card attachment. The instructions state “ADULTS: Sign this card in ink immediately. CHILDREN: Do not sign until age 18 or your first job, whichever is earlier.”

Changes Implemented in October 2007:

• A guilloche background pattern, which is a unique non-repeating spiral design, will replace the existing marbleized pattern. The new pattern is very similar in color to the current background and will continue to have the security feature of being erasable. This background is computer generated and very difficult to duplicate.

• A latent image has been added to the SSN card face. This feature, a text image, is visible only when the document is viewed at specific angles.

• A split fountain production method was added which produces a unique ink color mixture on the press that then transfers to the paper. The colors on the background of the card flow from blue to aqua.

• Color shifting inks were added to the face of the card. These inks have a multilayer light interference ink pigment imbedded that creates a noticeable color shift when moved in front of a light source. A similar feature is used in currency.

Additional Change

In addition to the above changes, SSA implemented a change in response to requests from employer groups to distinguish the last name of the individual on the card. As a result, beginning on September 8, 2007, the individual’s last name was displayed on a separate line on the card directly below the first and middle name.

Prior Versions of the Social Security Card

• There are different versions of the Social Security card in circulation and all prior versions of the card are VALID.
• Individuals do NOT have to request a new Social Security Card.
• Because all prior versions of the cards are valid, employers can select to use the free, Social Security Number (SSN) verification services offered by SSA to verify that their employees’ names and SSNs match SSA records.

A Fact Sheet from the Social Security Administration is available at ssa.gov.

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STAFF CHANGES AT SSA

Bob Wilson, who has been the Deputy Commissioner for Legislative and Congressional Affairs, has been selected for a position on the Appeal Council in the Office of Disability Adjudication and Review.

Margaret Hostetler, Deputy Commissioner for Policy, has been appointed Deputy Commissioner for Legislative Affairs. Linda Masfield will serve as Acting Deputy Commissioner for Policy.

Complete organization chart of the Social Security Administration is at <http://www.socialsecurity.gov/org/>

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SOCIAL SECURITY ISSUES ANNUAL STATISTICAL REPORT ON SSDI PROGRAM

The Social Security Administration has issued its 2006 Annual Statistical Report on the Social Security Disability Insurance Programs. SSA “outcomes chart” shows a significant increase in the number of technical denials. The chart shows that initial awards and Appeals Council awards went down within the last several years.

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AUDIT REPORT ON PRIOR SUPPLEMENTAL INCOME RECORDS

On August 31, 2007, Office of the Inspector General (OIG) issued an audit report "UNDERPAYMENTS ON PRIOR SUPPLEMENTAL SECURITY INCOME RECORDS" (A-07-07-17034)

OIG conducted inspection to determine whether the Social Security Administration's internal controls were adequate to ensure that underpayments on prior Supplemental Security Income (SSI) records were identified and properly resolved. The means-tested nature of the SSI program requires that individuals' needs be matched with their financial circumstances on a monthly basis for purposes of determining benefit eligibility and payment amounts. Individual financial circumstances may change often, requiring SSA to frequently reassess and verify recipients' eligibility and payment amounts.

OIG concluded that the majority of SSI underpayments occur because of changes in recipients' non-medical eligibility factors such as income (earned or unearned) or living arrangements. As changes in these factors occur, recipients' SSI eligibility and payment amounts can change from month-to-month.

An underpayment occurs when the amount due to a recipient is greater than the amount paid to a recipient during a period of eligibility. In general, an underpayment should be paid to the recipient the month after it is discovered by SSA. Underpayment amounts should first be offset to any existing overpayments, even if the recipient is deceased. If no overpayments exist, and the recipient is alive, the underpayment should be paid. If the recipient is deceased, the underpayment can be paid to a spouse or parent if the deceased recipient was living with the spouse or parent at the time of death or within the 6 months immediately preceding the month of death.

When a claimant files for SSI, Social Security field office (FO) creates a supplemental security income record (SSR). The SSR remains open as long as the claimant is in current pay status and for up to 12 months when in nonpayment status. SSA terminates SSRs for a variety of reasons such as after the recipient has been ineligible to receive payments for over 12 months or when changes in the recipient's eligibility factors require a new SSR to be established. These terminated SSRs are considered current until a new SSR is established. Once a new SSR is established, the terminated SSR is considered a prior SSR.

SSA instructions state that underpayments on terminated SSRs must be manually controlled by field office staff to ensure all past due amounts are paid. This means FO staff must manually review prior SSRs to determine if underpayments exist and then take appropriate actions to resolve the underpayments. Accordingly, underpayments will remain on prior SSRs until identified by FO staff.

After statistical review of 90, 497 claims, OIG found that SSA's internal control of relying on FO staff to manually identify and resolve SSI underpayments on prior SSRs is not adequate because FO staff did not always perform the necessary actions to identify and resolve the underpayments. This result is hardly surprising considering the low level of staffing at the SSA Filed and District Offices.

OIG recommended that SSA implement a better internal system-related control for identifying and resolving underpayments on prior SSRs. If SSA computerized system could automatically transfer underpayments from a prior SSR to a current SSR, the underpayments could be more easily identified by FO staff and resolved. A system process that electronically alerts FO staff that underpayments exist on prior SSRs would also help alleviate the current problems. SSA agreed with all of OIG recommendations. It remains to be seen whether SSA implements any of them in the next fiscal year.

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SOCIAL SECURITY SERVICE DELIVERY

Social Security's Office of Inspector General (OIG) has released an audit of the Social Security Administration's survey methodology for measuring the satisfaction rate of those who do business with the agency. This is not the report on that satisfaction rate itself, but an audit of that report. SSA office of Quality Performance (OQP) annually conducts tracking surveys to measure customer satisfaction with his/her last contact with SSA through 800-number, local FO number or visit to FO. Customers are asked to rate the service from “excellent” to “very poor” on a 6 point scale.

OIG recommended several improvements to SSA survey methodology. Interestingly enough, according to the audit report 82% percent of individuals who do business with SSA rated the overall service at Social Security as “excellent,” “very good,” or “good.”

Notwithstanding SSA’s own assessment of its customer service, legislative efforts are under way to improve the service for customers of all federal agencies. As reported in the Social Security Legislative Bulletin, on July 23, 2007, the House passed H.R. 404, the Federal Customer Service Enhancement Act. On July 24, 2007, the bill was received in the Senate and referred to the Committee on Homeland Security and Governmental Affairs. Among other provisions, the legislation would require the establishment of customer service standards for Federal agencies, including SSA.

Upon enactment, the House-passed bill would:

• Require the Comptroller General and the Director of the Office of Management and Budget (OMB) to jointly develop performance measures and standards to determine whether Federal agencies are providing high quality customer service;

• Require the head of each Federal agency to collect information from its customers regarding the quality of its services and to include such information in the agency's Performance and Accountability Report;

• Direct the head of each Federal agency to assign an employee to be the customer relations representative of the agency;

• Require each Federal agency to include its address and phone number on any agency stationery. In the case of correspondence originating from a regional or local office, the agency would be required to include the address and phone number of the regional or local office on the stationery; and

• Require the Comptroller General to report on each agency's customer service performance no later than two years after enactment. The report could be used by Congress as well as the Director of OMB to update performance measures for customer service. Compliance with customer service standards would, to the extent practicable, be an element of each agency's performance appraisal system.

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GAO REPORT FOR WITHODLING FEES FOR NONATTORNEYS

The Social Security Protection Act of 2004 temporarily expanded the practice of paying representatives' fees directly out of a claimant's benefits. This practice, known as fee withholding, was previously available only to attorneys in Disability Insurance (DI) cases. It has been extended to attorneys in Supplemental Security Income (SSI) cases, and to nonattorneys--who meet eligibility criteria--in both DI and SSI cases. The act also mandated that GAO examine (1) the professional experience of disability representatives, (2) how judges and claimants view representatives' performance, (3) how the implementation of fee withholding for nonattorneys has been viewed, and (4) the impact of fee withholding in the SSI program. GAO surveyed representatives and judges, and interviewed claimants and Social Security Administration (SSA), state, and other officials.

GAO report ( GAO-08-5 ) concluded that nonattorneys who have successfully applied for fee withholding eligibility had more experience representing claimants than attorneys or ineligible nonattorneys. Eligible nonattorneys were also most likely to specialize in disability representation. Judges and claimants considered the performance of eligible nonattorneys to be generally on a par with that of attorneys, but judges rated ineligible nonattorneys less highly. Judges rated eligible nonattorneys as about equal to attorneys overall, and many said a law degree is not necessary for effective disability representation. Claimants were generally satisfied with their representatives, regardless of type.

Judges and eligible nonattorneys were generally satisfied with the implementation of fee withholding for nonattorneys, including most of the eligibility criteria. Both groups expressed concern about the experience standard, which currently allows nonattorneys who have represented as few as five disability claims before SSA over a 2-year period to qualify for fee withholding.

The report stated that fee withholding has increased the number of SSI claimants represented by attorneys, but has also complicated payments in certain SSI cases. Claimants eligible for both DI and SSI have experienced delays in receiving their benefits as a result of fee withholding in the SSI program.

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JUDGE ORDERS SOCIAL SECURITY TO STOP MAILING SSN MATCHING LETTERS TO EMPLOYERS.

On October 10, 2007, Charles R. Breyer, a federal judge for the Northern District of California, stopped the Social Security Administration from sending letters to 140, 000 employers asking them to resolve workers’ mismatched Social Security number or face possible civil and criminal penalties. See, AFL-CIO v. Chertoff, N.D. Cal., No. 3:07-cv-04472-CRB.

Under the new rule an employer must follow specific steps after receiving a notice form the Social Security Administration, known as a no-mach letter. If the employee could not clarify the mismatch by providing valid information within 90 days, employers would be required to fire the worker or risk prosecution for knowingly hiring illegal immigrants. The rule was set to take effect on September 14, 2007, but was held up temporarily on August 31, 2007, by another judge in the San Francisco court, Maxine M. Chesney, who was sitting in for Judge Breyer at the time.

Judge Breyer held that the government had failed to follow proper procedures for issuing a new rule: the Department of Homeland Security made a policy change with “massive ramifications” for employer without giving any legal explanation or conducting a required survey of the costs and impact for small businesses. The Judge concluded that if implemented the new rule would have resulted in “irreparable harm to innocent workers and employers” because there was a strong likelihood that employers would simply fire employees who are unable to resolve the discrepancy within 90 days.

Judge Breyer found that the Social Security database that the rule would draw upon was laden with errors not related to a worker’s immigration status, which could result in no-match letters being sent to legally authorized workers. In a December 2006 report cited in the court documents, the inspector general of the Social Security Administration estimated that 17.8 million of the agency’s 435 million individual records contained discrepancies that could result in a no match letter being sent to a legally authorized worker. Of those records with errors, 12.7 million belonged to native-born Americans.

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HEALTH CARE UPDATES

COMMONWEATLH CARE

On October 8, 2007, Connector started mailing notices to all Massachusetts residents over 21 years of age with incomes between 150%-300% of federal poverty level (FPL) who are Commonwealth Care eligible but unenrolled. Individuals in this group are no longer eligible for Health Safety Net (formerly known as Uncompensated Care Pool) after 60 days of receipt of a letter. Connector mailed out the last batch of letters on November 12, 2007.

Questions about Commonwealth Care can be addressed to Customer Service Center

1-877-MA-ENROLL (1-877-623-6765)

TTY 1-977-623-7773

Monday-Friday (8AM-5PM)

www.MAhealthconnector.org

Massachusetts Sets Higher Tax Penalties For Individuals Ignoring Insurance Mandate

The Massachusetts Department of Revenue issued draft guidelines today on tax penalties for not having health insurance in 2008.</