February 2024 Print Edition
NOSSCR Welcomes Commissioner O’Malley with Top Priorities Letter
Days after Martin O’Malley was sworn in as the new Commissioner of Social Security, NOSSCR welcomed him with an 18-page letter outlining what we believe are some of the most urgent problems currently facing the agency and the multiple steps he can take to begin to address these issues. Our letter has been well received by the Commissioner, who has referenced our suggestions in multiple meetings with us and others (he even held up our letter with his handwritten “this is really good” note mid-meeting recently!). We are encouraged by the interest he has shown in implementing long-needed changes within the agency, and we remain hopeful that positive progress is on the horizon. You can read the full letter below.
CEO David Camp Encourages O’Malley to Provide Relief to Conn’s Victims
During a recent meeting with Commissioner O’Malley, NOSSCR CEO David Camp encouraged the new Commissioner to take swift action to finally provide relief to the victims in Eastern Kentucky and West Virginia who are still struggling in the aftermath of the Eric C. Conn fraud scheme. Below is a follow-up letter that NOSSCR sent to the Commissioner after that meeting.
President’s Corner
Rick Fleming, NOSSCR President
NOSSCR continues to be hard at work for you and your practice. We look forward to seeing you in Nashville and explaining all that has happened since we saw you in person in Washington, D.C. For now, I would like to bring NOSSCR’s advocacy efforts to your attention.
At the outset of his term as Commissioner, NOSSCR presented a list of priorities to Commissioner O’Malley. Since that time, much has been accomplished and communications continue with the Commissioner on just about a daily basis. In addition, NOSSCR staff have regularly scheduled meetings and communication with SSA senior staff. Over the course of 2024, you will continue to see the fruits of this labor.
Along with advocacy at the agency level, NOSSCR’s Political Action Committee (PAC) is putting your donations to work. From our new base in Washington, D.C., we’re taking your concerns directly to Congress. The NOSSCR PAC enables us to meet regularly with key stakeholders as we focus on our legislative priorities. One example of NOSSCR’s legislative advocacy is CEO David Camp’s testimony before the House Ways and Means Committee, bringing key issues to light. NOSSCR has also held fundraising events, hosted dinners, and had substantive meetings on the Hill.
Would you like to help? NOSSCR Members can donate to the NOSSCR PAC by clicking here (you must be signed-in to your NOSSCR account to access this link). We thank those who have already given and those who give monthly.
NOSSCR is working hard to get hard things done. Your membership in NOSSCR and your donations to the NOSSCR PAC move us all forward. Thank you for being a member.
Contributions to the National Organization of Social Security Claimants’ Representatives PAC (NOSSCR PAC) are not tax-deductible as a charitable contribution for federal income tax purposes. Contributions to NOSSCR PAC will be used to support federal and state candidates, political parties, and other political committees. Contributions are strictly voluntary. You may refuse to contribute without reprisal. Any proposed contribution level is merely a suggestion, and you are free to contribute more or less than suggested. You will not benefit or be disadvantaged by reason of the amount of your contribution or a decision not to contribute. Federal law requires NOSSCR PAC to use its best efforts to collect and report the name, mailing address, occupation and employer of persons whose contributions exceed $200 in a calendar year. You must be a U.S. citizen or lawfully admitted for permanent residence in the U.S. to contribute.
Congratulations, Kate Lang!
Join us in congratulating NOSSCR member Kate Lang on her nomination to the Social Security Advisory Board! Kate successfully navigated a complicated confirmation hearing before the Senate Finance Committee, and we are extremely proud to call her one of our own. If confirmed, Kate would serve a term with an expected end date of September 30, 2026. She was nominated alongside Andrew Biggs and Sharon Lewis, both of Oregon.
Based in Maryland, Kate advocates for improvements in Social Security and Supplemental Security income programs as the Director of the Federal Income Security Team with Justice in Aging. Her exemplary career has long shown a commitment to individuals with disabilities and those with low incomes. She previously worked at the Legal Aid Bureau in Riverdale, MD, at the National Legal Aid and Defender Association, and at Bread for the City Legal Clinic in Washington, DC. Her commitment to serving vulnerable populations also led to her work at Doherty, Cella, Keane and Associates, LLP and Legal Services of Northern California. She received her B.A. from Oberlin College, her J.D. from Fordham University School of Law, and a master’s degree from the University of Pennsylvania in teaching English to speakers of other languages.
The Social Security Advisory Board is an independent federal agency composed of seven bipartisan members. The Board provides advice and recommendations to the President, Congress, and the Commissioner of Social Security on matters related to the Social Security and Supplemental Security Income programs and policies.
Stay tuned for updates on Kate’s confirmation. Her testimony is posted below.
Have you heard? We’re having a conference!
We’re incredibly excited to announce that Commissioner Martin O’Malley will be joining us as the Keynote Speaker during the General Session at our conference! Register now and secure your spot to make sure you don’t miss this exciting session.
Can’t make it to the whole conference? Want to send a staff member or associate but can only spare them for a day? On Wednesday morning we will be offering the following programs:
- A Social Security Boot Camp (geared toward newer practitioners), and
- A Legal Support Staff Disability Practice Overview (for team members like paralegals, legal assistants, case and office managers).
While these sessions are included in your full conference registration, it is also now possible to register for only the Wednesday morning sessions.
SSA Issues New Emergency Message for Fault Determination in Overpayment Waivers
Jennifer Cronenberg, Senior Counsel and Director of Legal Information
Thanks to the outstanding work of our friends at New York Legal Assistance Group (NYLAG) and Justice in Aging (JIA), and their partners at Arnold and Porter, SSA has taken the next step in providing relief to those charged with overpayments during the Covid-19 pandemic. This action comes as a direct result of the settlement agreement in Campos et. al. v. Kijakazi.
Effective February 23, 2024, SSA must use the guidance set out in Emergency Message (EM-24005) “when making a fault determination on a waiver request for an overpayment incurred in any month since March 2020.” This EM applies to both Title II and Title XVI overpayment waiver requests.
As a reminder, POMS GN 02250.001 establishes that “recovery of an overpayment can be waived if both of the following conditions are met:
- The person is without fault, and
- Recovery would either defeat the purpose of the act or be against equity and good conscience.”
With this new EM, when determining whether the person is without fault, SSA “must consider any circumstances related to the COVID-19 pandemic that an overpaid individual alleges prevented the individual from reporting changes” that led to the overpayment.
This EM applies at all levels, from the initial waiver determination through Appeals Council review. We encourage our members to check your cases and utilize this EM to help provide relief to any vulnerable claimants who may benefit.
For more information about the Campos settlement, please check out this helpful Fact Sheet.
Piemonte’s Perspective
George Piemonte
Many practitioners as well as ALJs often forget about the two adverse profiles described in 20 C.F.R. § 404.1562 and SSR 82-63. The Regulation states that if the claimant meet these profiles and cannot do their past work they are deemed disabled. The Ruling directs that adjudicators must consider these two profiles before referring to Appendix 2 of Subpart P of Regulations No. 4 to determined whether the claimant can do work that exists in significant numbers. While these types of claimants do not come along often it is critical you identify them as soon as they do because if the claimant meets the profile they are deemed to be disabled.
The first profile is: marginal education (per 20 C.F.R. § 404.1564 is generally a 6th grade education or less), 35 years or arduous unskilled physical labor (SSR 82-63 defines arduous as “primarily physical work requiring a high level of strength or endurance”), not working, and unable to return to past work.
The second profile is: 55 years old, limited education (per 20 C.F.R. § 404.1564 is generally a 7th through 11th grade education), and no past relevant work.
So, if you have a claimant that meets either of these profiles per 20 C.F.R. § 404.1562 and SSR 82-63 they are deemed disabled. Be on the lookout for them and be sure to raise it to the ALJ.
One additional profile to be on the lookout for is the so called “Worn-out Worker.” These criteria are found in POMS DI 25010.001 and are: 60 years old, limited education, 30+ years of unskilled work, and unable to return to past work.
Per this POMS claimants meeting these criteria are to be found disabled.
Keep these three claimant profiles in mind as you are reviewing your cases – you may be able to win your client’s case using one of them.
This is a guest column provided by a NOSSCR member. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.
2023 Waterfall Charts
SSA has released the Waterfall Charts for Fiscal Year 2023 for all Disability Determinations and for Continuing Disability Redeterminations (CDRs). Across the board, the numbers have held fairly steady from last year, with the biggest increase occurring in the number of cases dismissed at the ALJ level (up 13% for disability determinations and 23% for CDRs). ALJ allowances are also down, decreasing 6% in both categories.
Update on Obsolete Jobs (Again)
Tom Krause, Litigation Director
The December 2023 NOSSCR Forum included an Update on “Obsolete” Jobs. The Department of Labor last published the Dictionary of Occupational Titles (DOT) in 1991. SSA has been on notice since at least 2011 that some of the jobs identified in the DOT were or may be obsolete. More and more, the courts are finding jobs such as addresser, DOT Code 209.587-010; tube operator, DOT Code 239.687-014; cutter-and-paster, press clippings, DOT Code 249.587-014; document preparer, microfilming, DOT Code 249.587-018; host/hostess dance hall, DOT Code 349.667-010; and surveillance-system monitor, DOT Code 379.367-010 are obsolete. We believe that, in a September 2023 training for ALJs and OHO staff, SSA laid out a new and informal policy: before citing any of the above jobs in a decision, the ALJ must ask the vocational expert (VE) whether there has been any change in the way the job is now performed and whether there are a significant number of jobs as that occupational is now performed. The VE must also provide the basis for that opinion.[1]
Since then, we have seen more and more Appeals Council remands. The Appeals Council remand orders typically include a paragraph like this:
The hearing decision does not contain an evaluation of all apparent conflicts between the Dictionary of Occupational Titles (DOT) and the vocational expert evidence. When there is an apparent conflict between vocational expert evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the vocational expert evidence to support a determination or decision about whether the claimant is disabled (Social Security Ruling 00-4p). Specifically, the Administrative Law Judge found the claimant could perform the requirements of representative occupations such as telephone information clerk (DOT #237.367-046), surveillance system monitor (DOT #379.367-010), and addresser (DOT #209.587-010) (Decision, page X). According to the DOT, the addresser job requires addressing by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing. The surveillance system monitor job requires monitoring the premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors, and notifying authorities by telephone of need for corrective action. The record does not contain information regarding whether these occupations are performed with more modern tools or processes, and the hearing decision does not contain an evaluation of the apparent conflict. Furthermore, it is unclear if the remaining occupation cited exists in significant numbers. Therefore, further vocational expert evidence is warranted.
Of note, these remand orders are not always based on the attorneys’ cross-examination or rebuttal evidence. In those cases, it is not clear what the “apparent conflict” is between the DOT and the VE’s testimony.
Another interesting issue is at least one, but not all, of the jobs relied upon by the ALJ is “obsolete.” We don’t have the job numbers for most of these remands, but that may be the case. In one instance, 2 jobs cited by the ALJ are “obsolete” and one job – charge account clerk, DOT 205.367-014 – is not “obsolete.” According to the ALJ in that case, there are 6,000 charge account clerk jobs. The Appeals Council remanded as it was “unclear if the remaining occupation cited exists in significant numbers.” In another case, the ALJ cited addresser, document preparer, and ticket counter. It is not clear how many ticket counter jobs the ALJ found to exist, but the Appeals again remanded.
Practice Tip: If you have a case where the VE cited “obsolete” jobs without describing how the jobs are performed currently and without stating the number of jobs matching the updated description, you may want to contact the ALJ. Even if you just received the ALJ’s decision, you can request the ALJ reopen and revise the decision before requesting review. See Hallex I-2-9-5. Caution: requesting reopening does not extend your time to request review. If you have a case in federal court, even if fully briefed and awaiting a decision, you may want to send an email to opposing counsel about this issue.
[1] In December 2023, NOSSCR requested a copy of the training video and written materials, but we have not yet received them.
NOSSCR’s March Events
We hope that you can join us for these upcoming networking and continuing education virtual events. All times are Eastern. Be sure to click the individual links for each event to register.
- March 7 at 4 p.m.—Eleventh Circuit Virtual Meeting
- March 11 at 11 a.m.—NextGen Virtual Coffee Break (30 minutes)
- March 14 at 2 p.m.—Legal Services Meeting
- March 21 at 2 p.m.—Part 3 of the VE Cross CLE Series
- March 25 at 1 p.m.—Litigation Update Webinar
Request for Proposals
Laura Beth Waller, Chief Strategy Officer
1. Introduction
The National Organization of Social Security Claimants’ Representatives (NOSSCR) seeks to establish affinity partnerships. NOSSCR is a specialized bar association for attorneys and advocates who represent Social Security Disability Insurance and Supplemental Security Income claimants throughout the disability adjudicative process. Since 1979, NOSSCR has been providing continuing legal education to its thousands of members and public policy advocacy on behalf of its members and the people with disabilities they represent.
NOSSCR has more than 2,500 members across all 50 states; most are self-employed or work in small business law firms. Through affinity partnerships, we aim to provide our members access to high-quality legal technology solutions at preferential rates while enhancing your reach and brand recognition within our community. In so doing, we will adhere to IRS standards limiting our services in order to avoid or limit “unrelated business income tax (UBIT).”[1]
2. Background and Objectives
Our members represent claimants before the Social Security Administration and in Social Security appellate advocacy before federal courts. Our members also practice in adjacent and complimentary practice areas, including Veterans’ disability, workers’ compensation, personal injury, and bankruptcy.
Our members’ legal technology needs are met through a diverse range of individual solutions. By establishing an affinity partnership with a reliable legal technology provider, we hope to:
- Streamline processes for our members so they can provide excellent customer service and high-level legal representation to their clients.
- Reduce costs for our members through negotiated discount rates and bulk licensing options.
- Promote legal technology adoption among our members, enhancing their efficiency and effectiveness.
- Generate revenue for NOSSCR through member referrals and potential co-branded marketing.
3. Scope of Services
We are seeking a legal technology provider that can offer a modern tool for Social Security claimants to track and document symptoms resulting from Long COVID and other conditions that produce persistent fatigue, pain, muscle weakness, shortness of breath, memory loss, difficulty concentrating, brain fog, tingling, numbness, neuropathic pain, chronic shortness of breath, difficulty breathing, or persistent cough. This technology should offer:
- Core legal technology: User-friendly technology tool for claimants to track and document their subjective symptoms. The tool should have options to document the result of symptoms, including, but not limited to, the need to rest, elevate feet, nap, use an assistive device, or require the assistance of another. The tool should be capable of documenting the duration and severity of symptoms. It should be capable of producing reports showing symptom frequency and severity for attorneys to analyze when preparing a claimant’s case. The tool should ensure that data is secure and cannot be manipulated. The tool should make it possible for NOSSCR to identify issues related to Social Security’s “all evidence” regulations and adjustments to be made as needed.
- Competitive pricing: Discounted rates and/or special offers for our members should be beneficial compared to market prices.
- Implementation and training: Support for integration and ongoing user training for members.
- Technical support: Prompt and reliable technical assistance for our members.
- Marketing and communications support: Collaborative marketing efforts and promotional materials to raise awareness of the affinity partnership among our members and potential members.
4. Evaluation Criteria
Proposals will be evaluated based on the following criteria:
- Functionality and features: Comprehensiveness, user-friendliness, alignment with our claimants’ needs.
- Pricing and value: Competitiveness of pricing models and potential cost savings for members versus market prices.
- Implementation and training: Proposed approach to ensure smooth onboarding and user adoption.
- Technical support: Quality and responsiveness of technical assistance offered.
- Marketing and communications support: Creativity and effectiveness of proposed marketing initiatives.
5. Submission Instructions
Please submit your proposals electronically to nosscr@nosscr.org no later than March 31, 2024. Your proposal should address each of the sections outlined above and include the following information:
- Company overview and relevant experience
- Detailed description of the proposed tool and pricing model
- Implementation and training plan
- Technical support approach
- Marketing and communication strategies
- Reference list of other affinity partnerships
- Potential conflicts of interest, interested parties serving either on NOSSCR’s Board of Directors or a similar ownership role or governing body of the provider
We encourage potential partners to be creative and propose solutions that go beyond standard offerings. We are open to exploring different types of arrangements, including tiered pricing structures, co-branded marketing initiatives, and joint educational events.
6. Selection Process
A selection committee composed of NOSSCR staff and the NOSSCR President will review all proposals. Shortlisted vendors may be invited for presentations and Q&A sessions. All proposals will be kept confidential, considered by and available to only NOSSCR staff and the NOSSCR President (and NOSSCR’s legal counsel as needed), and not available to other members of NOSSCR’s Board of Directors or membership.
7. Contact Information
For any questions about this RFP, please contact Laura Beth Waller at lb.waller@nosscr.org.
Thank you for your interest in partnering with NOSSCR. We look forward to reviewing your proposals.
[1] For an explanation of this concern and the general tax issues involved, consider this resource from the American Bar Association: “Endorsements. When a nonprofit endorses a vendor’s product or service (often referred to as a nonprofit “affinity” program) but does nothing to market the product or service to its members (leaving this task to the vendor), this can be viewed as, in essence, nothing more than an exclusive license of the nonprofit’s name, logo and (sometimes) membership list to the vendor (in connection with the vendor’s promotion and sale of that product or service to the nonprofit’s members, and possibly to others in the industry or profession as well). As stated above, if the nonprofit gets paid for this exclusive license—even if such payments are calculated as a percentage of gross sales of the endorsed product or service to the nonprofit’s members—then the payments will constitute royalties and will be tax-free to the nonprofit. If, however, the nonprofit does market the product or service to its members, then the tax issues become more complex,…” https://www.americanbar.org/groups/business_law/resources/business-law-today/2021-november/unrelated-business-income-tax/
SSA’s Equity Plan
SSA has released an update on the progress they made toward their 2023 equity goals. They also outline the following strategies to advance equity in FY 2024:
- Improve Access to the Supplemental Security Income Program for Women, Families, Individuals from Underserved Communities, and Other People Facing Barriers
- Improve Equity in Access to Our Programs for Our Customers Who Communicate Primarily in Languages Other than English
- Reduce Pending SSI Underpayments to Improve Equity in the Delivery of Payments to Our Customers Disproportionately Affected by Poverty
- Increase Awareness of Survivors Benefits Eligibility for Children and Families, Same-Sex Couples, and People Disproportionately Impacted by COVID-19
- Increase Race and Ethnicity Data Collection to Further Identify, Monitor, and Address Service Inequities
You can read the full report below.
Legislative Spotlight
Betsy Osborn, Government Relations Director
On October 24, 2023, Senator Ed Markey (D-MA) introduced S. 3109, the Alleviating Barriers for Caregivers (ABC) Act. The bill has 17 cosponsors: nine Republicans, seven Democrats, and one Independent. S. 3109 was referred to the Senate Committee on Finance, where it is awaiting further action.
The aim of this bill is to simplify the process for family caregivers to assist individuals in establishing eligibility for and enrolling in benefits under Medicare, Medicaid, Children’s Health Insurance Program (CHIP), and Social Security. This legislation would require the Administrator of the Centers for Medicare & Medicaid Services (CMS) and the Commissioner of the Social Security Administration (SSA) to conduct a review of the eligibility determination and application processes, procedures, and forms of Medicare, Medicaid, CHIP, and Social Security, respectively. The goal of this review would be to streamline the determination and application procedures for these programs and make it easier for caregivers to interact with CMS and SSA as they navigate the process.
Bill Details:
SECTION 1. SHORT TITLE.
This Act may be cited as the “Alleviating Barriers for Caregivers Act” or the “ABC Act”.
SEC. 2. REVIEW OF MEDICARE, MEDICAID, CHIP, AND SOCIAL SECURITY TO SIMPLIFY PROCESSES. PROCEDURES, FORMS, AND COMMUNICATIONS.
(a) Definitions.—In this Act:
(1) ADMINISTRATOR.—The term “Administrator” means the Administrator of the Centers for Medicare & Medicaid Services.
(2) CHIP.—The term “CHIP” means the Children’s Health Insurance Program established under title XXI of the Social Security Act (42 U.S.C. 1397aa et seq.).
(3) COMMISSIONER.—The term “Commissioner” means the Commissioner of Social Security.
(4) COVERED AGENCIES.—The term “covered agencies” means the Centers for Medicare & Medicaid Services and the Social Security Administration.
(5) COVERED OFFICIALS.—The term “covered officials” means the Administrator and Commissioner.
(6) COVERED PROGRAMS.—The term “covered programs” means Medicare, Medicaid, CHIP, and the Social Security programs.
(7) DISABILITY.—The term “disability” has the meaning given such term in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).
(8) FAMILY CAREGIVER.—The term “family caregiver” has the meaning given the term in section 2 of the RAISE Family Caregivers Act (42 U.S.C. 3030s note).
(9) MEDICAID.—The term “Medicaid” means the Medicaid program established under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).
(10) MEDICARE.—The term “Medicare” means the Medicare program established under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.).
(11) STATE.—The term “State” means any of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands.
(12) SOCIAL SECURITY PROGRAMS.—The term “Social Security programs” means each of the following:
(A) The programs for old-age and survivors insurance benefits and disability insurance benefits established under title II of the Social Security Act (42 U.S.C. 401 et seq.).
(B) The program for supplemental security income benefits established under title XVI of such Act (42 U.S.C. 1381 et seq.).
(b) Review Of Programs.—
(1) IN GENERAL.—The Administrator and the Commissioner shall jointly conduct a review of the eligibility determination and application processes, procedures, forms, and communications of Medicare, Medicaid, CHIP, and the Social Security programs, respectively.
(2) GOALS OF THE REVIEW.—In conducting the reviews under paragraph (1), the covered officials shall seek ways to—
(A) simplify and streamline policies and procedures for determining eligibility for, enrolling in, maintaining coverage in, and utilizing the full benefits available under the covered programs;
(B) reduce the frequency of family caregivers having to—
(i) provide the same information to covered agencies more than once;
(ii) complete—
(I) multiple documents for each covered agency; or
(II) documents requesting the same or similar information for multiple covered agencies; or
(iii) provide information to the covered agencies that—
(I) the covered agencies already have; or
(II) the covered agencies can easily receive from other Federal agencies; and
(C) make it easier for family caregivers to work with the covered agencies and the State agencies responsible for administering State Medicaid and CHIP plans by—
(i) providing information on eligibility for, enrollment in, maintaining coverage in, and utilizing the full benefits available under the covered programs to family caregivers;
(ii) improving communications between family caregivers and employees of covered agencies by—
(I) decreasing call wait times;
(II) ensuring that employees of covered agencies and the State agencies responsible for administering State Medicaid and CHIP plans provide timely answers to the questions of family caregivers;
(III) improving the websites of the covered programs—
(aa) by making it easier for family caregivers to find information regarding benefit availability, eligibility, and how to maintain coverage; and
(bb) by designing such websites to align with the requirements of the Americans with Disabilities Act (42 U.S.C. 12101 et seq.) regarding web design;
(IV) improving the timely access to in-person appointments or meetings between employees of covered agencies and family caregivers;
(V) providing translation or interpretation services for family caregivers for whom English is not their primary language; and
(VI) providing information to family caregivers in accessible formats, including formats compatible with American Sign Language and multiple languages;
(iii) ensuring that employees of covered agencies and the State agencies responsible for administering State Medicaid and CHIP plans understand how the covered programs can help family caregivers;
(iv) improving the relationship between family caregivers and the covered agencies and the State agencies responsible for administering State Medicaid and CHIP plans, which may include regularly meeting with family caregivers, individuals entitled to, receiving services from, or filing for, 1 or more of the covered programs, and other stakeholders of the covered programs;
(v) ensuring that employees of covered agencies and the State agencies responsible for administering State Medicaid and CHIP plans who are responsible for resolving disputes, appeals, and grievances within the covered programs receive education, training, and guidance on specific issues faced by family caregivers who participate in the covered programs; and
(vi) taking other actions the covered officials may identify.
(3) INPUT FROM FAMILY CAREGIVERS, ORGANIZATIONS, AND STATE ENTITIES.—In conducting the reviews under paragraph (1), the covered officials shall seek input from—
(A) family caregivers, including family caregivers with a disability, that have interacted with the covered programs;
(B) State, regional, national, and Tribal organizations representing or working with family caregivers or individuals receiving care from family caregivers; and
(C) State Medicaid and CHIP programs.
(c) Action.—After the reviews under subsection (b) have been completed, the covered officials shall take actions that will simplify and streamline policies and procedures that improve customer service for individuals entitled to, receiving services from, or filing for, any of the covered programs, and family caregivers.
(d) Report To Congress.—
(1) IN GENERAL.—No later than 1 year after the date of enactment of this Act, the covered officials shall each submit a report to the Committee on Finance of the Senate, the Committee on Ways and Means of the House of Representatives, and the Committee on Energy and Commerce of the House of Representatives that details the results of the respective reviews each covered official conducted under subsection (b).
(2) CONTENTS OF THE REPORT.—The reports required under paragraph (1) shall contain—
(A) issues that the covered officials identified in the reviews and their findings;
(B) the actions that the covered officials are taking to address the issues in subparagraph (A);
(C) an estimate on when the actions in subparagraph (B) will be completed;
(D) projected annual costs to implement the actions identified in subparagraph (B); and
(E) any recommended change in Federal law to address any issue identified in subparagraph (A).
(3) UPDATED REPORTS.—The covered officials shall each submit a report 1 year after submitting the report required under paragraph (1) providing an update to the contents identified in paragraph (2).
(4) PUBLICATION OF THE REPORTS.—The covered officials shall make the reports required under paragraphs (1) and (3) publicly accessible on the websites of covered agencies.
(e) Reducing Red Tape For State Medicaid And CHIP Programs.—Not later than 1 year after the date of enactment of this Act, the Administrator shall issue a letter to each State Medicaid and CHIP Director to—
(1) encourage State Medicaid agencies to conduct reviews of State Medicaid programs and State CHIP programs similar to the reviews conducted at the Federal level under subsection (b);
(2) provide suggestions, informed by the results of such Federal reviews, for promising practices that States could take to reduce administrative burdens on family caregivers in supporting individuals entitled to, receiving service from, or filing for, 1 or more of the covered programs in applying for and receiving assistance under State Medicaid programs and State CHIP programs; and
(3) identify best practices to support family caregivers.
SSA Seeking Comments: Use of Electronic Payroll Data to Improve Program Administration
The largest cause of SSI overpayments is the extremely difficult process of reporting wages to SSA and getting SSA to make timely adjustments thereafter. A solution to this problem was already provided 8 years ago in the Bipartisan Budget Act of 2015 where Congress authorized SSA to obtain data directly from payroll providers. SSA has finally issued a Notice of Proposed Rulemaking seeking comment on their anticipated “Use of Electronic Payroll Data to Improve Program Administration.”
The full text of the proposed rule can be read below, or accessed online here. The commenting period is open until April 15, 2024. NOSSCR will be submitting comments that we will share at a later date. We encourage our members to do the same. You can submit formal comments here.
Update: Challenging the Legality of the Appointment of SSA’s ALJs
Tom Krause, Litigation Director
In December 2023, we included an article discussing the status of several cases challenging the legality of the appointment of SSA’s ALJs. Here is an update to that article.
For background, in 2018, the Supreme Courtheld that ALJs within the SEC are “Officers of the United States” who must be appointed by the President, as required by the Appointments Clause. Lucia v. S.E.C., 585 U.S. ––––, 138 S. Ct. 2044, 2050–51 (2018). In July 2018, Acting Commissioner Nancy Berryhill issued an order ratifying the appointments of the agency’s ALJs to ensure they were properly appointed according to the Lucia case. See SSR 19-1p. Since then, and because SSA had gone so long without a confirmed Commissioner, the questions regarding the validity of the appointment of SSA’s ALJs continued.
Several cases challenged the authority of Acting Commissioner Berryhill to ratify the appointments of SSA’s ALJs. The Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345 et seq. (FVRA), grants the President limited power to appoint acting officers to fill vacant non-inferior offices temporarily without first needing to obtain Senate approval. The plaintiffs in two cases filed petitions for certiorari questioning whether Ms. Berryhill had the authority to do so after serving so long as Acting Commissioner.
We noted in December that two cases were pending before the Supreme Court, Dahle and Rush. The Supreme Court denied cert in both cases. See Rush v. Kijakazi, 65 F.4th 114 (4th Cir. 2023), cert. denied sub nom. Rush v. O’Malley, No. 23-243, 2024 WL 674707 (U.S. Feb. 20, 2024); Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023), cert. denied sub nom. Dahle v. O’Malley, No. 23-173, 2024 WL 71921 (U.S. Jan. 8, 2024). In addition, in January 2024, the Fifth Circuit ruled against the plaintiff on this issue in Seago v. O’Malley, 91 F.4th 386 (5th Cir. 2024). As of this writing, the claimant has not filed a petition for cert.
Currently, the issue is still being litigated. The odds of Supreme Court review, however, are not looking good.
NOSSCR Comments on SSA’s Proposed Scientific Integrity Policy
NOSSCR submitted comments in support of SSA’s proposed DRAFT Scientific Integrity Policy. In our comments (copied below), we encouraged the agency to take seriously the need for science-backed vocational data and the importance of using that data in their decision-making processes.
The full text of the Draft Scientific Integrity Policy can be read below.
NEW April Virtual Continuing Education Session
NOSSCR is excited to announce that Sarah Bohr will be presenting a special virtual continuing education session on April 10 at 1 p.m.
The session, entitled “A Primer for Beginners and a Review for the More Experienced Representative,” will provide an overview of key regulatory provisions and rulings governing disability law. Sarah will highlight how to establish an impairment, the duration of impairments, the sequential evaluation process, legal theories of disability cases, the Medical-Vocational Guidelines, special rules for evaluating mental impairments, medical opinions, subjective symptoms, failure to follow treatment, onset dates, termination cases, and other issues. The materials will include a handy checklist to assist in developing a winning theory of a case.
Article on Work Overpayments
SSA’s Office of Retirement and Disability Policy released an article entitled Work Overpayments Among New Social Security Disability Insurance Beneficiaries, by Denise Hoffman, Monica Farid, John T. Jones, Serge Lukashanets, and Michael T. Anderson.
As SSA notes, “in this article, the authors track the experiences of working Disability Insurance beneficiaries who received benefit overpayments because of work during their first 10 years after award. They describe the antecedents to overpayments and compare the likelihoods of continued benefit receipt for working beneficiaries who did and did not receive overpayments.”
Read the full article at the link above or download the file below.
Cost Estimates for Brown/Cassidy Bill
On January 29, 2024, SSA’s Office of the Chief Actuary released a memo on the estimated change in federal SSI program cost from enacting S. 2767, the “SSI Savings Penalty Elimination Act,” introduced on September 12, 2023 by Senators Sherrod Brown and Bill Cassidy.
Consultative Examination Pay Rates
NOSSCR submitted a FOIA request seeking the pay schedules that SSA utilizes for Consultative Examinations. After years of “processing” this request, SSA has finally provided the data. The report details the rates for various examinations and testing and is broken down by state in alphabetical order. Please click the button below to view the report for each state.
PAC Contributor List
Contributions to the National Organization of Social Security Claimants’ Representatives PAC (NOSSCR PAC) are not tax-deductible as a charitable contribution for federal income tax purposes. Contributions to NOSSCR PAC will be used to support federal and state candidates, political parties, and other political committees. Contributions are strictly voluntary. You may refuse to contribute without reprisal. Any proposed contribution level is merely a suggestion, and you are free to contribute more or less than suggested. You will not benefit or be disadvantaged by reason of the amount of your contribution or a decision not to contribute. Federal law requires NOSSCR PAC to use its best efforts to collect and report the name, mailing address, occupation and employer of persons whose contributions exceed $200 in a calendar year. You must be a U.S. citizen or lawfully admitted for permanent residence in the U.S. to contribute.
SSA’s Monthly Benefits Data
SSA’s Office of Retirement and Disability Policy has released the following data:
Monthly Statistical Snapshot, January 2024. This monthly snapshot shows statistics on Social Security beneficiaries and Supplemental Security Income recipients.
SSI Monthly Statistics, January 2024. These monthly tables provide statistics for federally administered payments and awards under the Supplemental Security Income (SSI) program.
The Snapshot can be viewed below. Please follow the links above to access the full reports.
Useful Resources
Please visit the links below to find the latest updates on SSA’s Caseload and ALJ data, contact information, policy changes, and proactive disclosures.