Legislative Spotlight: We Can’t Wait Act

On December 7, 2023, Sen. Debbie Stabenow (D-MI) and Sen. Susan Collins (R-ME) introduced S. 3400, the We Can’t Wait Act. The bill was referred to the Senate Committee on Finance for further action.

Bill Summary: S. 3400 would amend Title II of the Social Security Act to allow individuals with disabilities to voluntarily elect to receive disability insurance benefits at the beginning of the first month following the date of disability without enduring a five-month waiting period, accepting a small four percent reduction in benefits. The percentage would be adjusted for new elections every five years to maintain no fiscal impact on the trust fund over a 75-year period. The election would not impact the benefit payment amount for spouse, child, and Disabled Adult Children (DAC) beneficiaries. The Commissioner of Social Security would be required to provide resources to help individuals understand the election. Claimants would have multiple opportunities to make the election, which “may be revoked or confirmed” by a representative payee.

Bill Details:

SECTION 1. SHORT TITLE.

This Act may be cited as the “We Can’t Wait Act of 2023”.

SEC. 2. ELECTION TO RECEIVE.

(a) In General.—Section 223(a) of the Social Security Act (42 U.S.C. 423) is amended—

(1) in paragraph (1), in the matter following subparagraph (E), by striking “(i)” and all that follows through “, (ii) in” and inserting “(i) for each month beginning with the first month after the individual’s waiting period (as defined in subsection (c)(2)) in which the individual becomes so entitled to such insurance benefits unless the individual elects to receive insurance benefits during such waiting period in accordance with paragraph (3), (ii) in the case of an individual electing to receive insurance benefits during the individual’s waiting period pursuant to the preceding clause and in”;

(2) in paragraph (2), by striking “and section 215(b)(2)(A)(ii)” and inserting “, section 215(b)(2)(A)(ii), and paragraph (3) of this subsection,”; and

(3) by adding at the end the following new paragraph:

“(3) (A) An individual may elect to receive disability insurance benefits during the individual’s waiting period pursuant to paragraph (1) if such individual or their appointed representative makes such election in writing (which may include selecting an option on a benefit application form) during—

“(i) in the case of an individual who has applied for but not yet received a decision on their application for such disability insurance benefits before the date on which this paragraph takes effect—

“(I) the 45-day period following such date, or

“(II) the 10-day period (if such period ends later than the end of the 45-day period) following the date on which such individual receives a decision on such application which is favorable to such individual,

“(ii) in the case of an individual applying for disability insurance benefits on or after the date on which this paragraph takes effect—

“(I) the date on which such individual files an application for disability insurance benefit, or during the 10-day period following such date,

“(II) the date on which such individual requests reconsideration of the initial determination, or during the 10-day period following such date, or

“(III) the date on which such individual requests a hearing by an administrative law judge, or during the 10-day period following such date,

“(iii) in the case of an individual whose interest the Commissioner of Social Security determines would be served by making payment of the individual’s benefit to a representative payee (within the meaning of section 205(j)), such individual’s election may be revoked or confirmed by such representative payee during the 10 day period beginning on the date on which such representative payee is selected, and

“(iv) in the case of an individual who elects to receive disability insurance benefits during such individual’s waiting period pursuant to paragraph (1), the individual may revoke such election during the periods described in this subparagraph, except that in no event shall such elections or revocations occur in the first month of an established period of eligibility.

“(B) In the case of an individual electing to receive a disability insurance benefit during the individual’s waiting period pursuant to paragraph (1), such individual’s disability insurance benefit for any month during or after such waiting period shall—

“(i) be equal to the product of—

“(I) the disability insurance benefit amount determined under paragraph (2) (as determined before application of this paragraph), multiplied by

“(II) the percentage determined under subparagraph (C) for the month during which such individual first becomes entitled to such disability insurance benefit,

“(ii) continue unchanged for the entire period of eligibility for such disability insurance benefit, and without the effect of recalculations described under subparagraph (C), and

“(iii) if applicable, be paid as part of a claim of entitlement to past-due benefits under this title and included in the total dollar amount of such past-due benefits.

“(C) The percentage determined under this subparagraph shall be—

“(i) for any month in the 36-month period beginning with the first month that begins after the date that is 180 days after the date of enactment of this paragraph, 96 percent, and

“(ii) for any subsequent month, the percentage most recently certified by the Commissioner under paragraph (D)(ii).

“(D) (i) Not later than the end of the 36-month period described under subparagraph (C)(i), and not later than the end of every 5-year period thereafter, the Chief Actuary of the Social Security Administration shall calculate a percentage such that the fiscal impact over a 75-year period upon the Federal Disability Insurance Trust Fund if all individuals who applied pursuant to paragraph (1) to receive disability insurance benefits made an election to receive benefits during their waiting periods is equal to the fiscal impact over such period upon such Trust Fund that would have been made if all individuals who applied had not made such election.

“(ii) Not later than the end of the 36-month period described under subparagraph (C)(i), and not later than the end of every 5-year period thereafter, the Commissioner—

“(I) if the percentage calculated by the Chief Actuary in accordance with clause (i) is greater than or equal to 91 percent, shall certify to the Managing Trustee such percentage, or

“(II) if such percentage is less than 91 percent, may elect not to certify such percentage to the Managing Trustee.

“(iii) Not later than 2 years after the Commissioner elects not to certify any percentage calculated by the Chief Actuary, the Chief Actuary shall prepare and deliver a report to Congress, including detailed recommendations for administrative or legislative actions to permit individuals eligible for disability insurance benefits to receive disability insurance benefits during the disability insurance benefit waiting period such that the fiscal impact over a 75-year period upon the Federal Disability Insurance Trust Fund is actuarially neutral.

“(E) No election made or not made by an individual pursuant to this paragraph shall be construed to have any effect on any benefits payable to any other individual on the basis of such individual’s wages and self-employment income.

“(F) The Commissioner shall make available to the general public by posting on a website information relating to electing to receive disability insurance benefits during the waiting period, including a calculator which an individual may use to determine the effect of electing to receive disability insurance benefits during the waiting period on the individual’s disability insurance benefit.

“(G) Each application for entitlement to disability insurance benefits that may subject the individual to the waiting period pursuant to paragraph (1) shall allow for new elections or revocations under this paragraph.”.

(b) Effective Date.—The amendments made by this section shall apply to applications for disability insurance benefits that are made or pending on or after the first day of the first month that begins at least 180 days after the date of enactment of this Act.

(c) Update To Social Security Disability Forms.—Not later than 180 days after the date of enactment of this Act, the Commissioner of Social Security shall update the application forms for applying for disability insurance benefits to include an option for applicants to elect to receive disability insurance benefits during their waiting period.