Disability Law Blog

SSA Issues NPRM on Nonpayment of Fugitive Felons et al

From the Summary:

To implement section 203 of the Social Security Protection Act of 2004 (SSPA), we propose to revise our regulations on the payment of Social Security and Supplemental Security Income benefits under titles II and XVI of the Social Security Act (the Act). Section 203 requires that title II benefits will not be paid to a person who is a fugitive felon or probation or parole violator, unless good cause is shown as specified in this new law. Section 203 also added a good cause exception to the title XVI fugitive felon ineligibility provision. In addition, we propose to make other changes in our regulations, required by this legislation, such as removing the reference to high misdemeanors in the state of New Jersey. Finally, we propose to clarify our interpretation of the statutory language "fleeing to avoid'' for the purposes of the title II and title XVI provisions.

The comment period ends February 3, 2006.

Available in text and PDF

70 Fed.Reg. 72411-72416 (December 5, 2005)

SSA Issues NPRM on Suspension of Benefits During CDR

From the Summary:

We propose to amend our regulations to provide that we will suspend your disability benefits before we make a determination during  a continuing disability review (CDR) under title II and title XVI of the Social Security Act (the Act) when you fail to comply with our request for necessary information. Should you remain non-compliant for a period of one year following your suspension, we will then terminate your disability benefits. Although our current title XVI regulations generally provide for the termination of payments after 12 months of suspension, we are proposing to amend our regulations by adding this policy to our title II regulations and by restating it in the title XVI CDR regulatory provisions.

The comment period ends February 3, 2006.

Available in text and PDF

70 Fed.Reg. 72416-72419 (December 5, 2005)

SSA Proposes to Change Age Categories in Evaluating Disability

The Commissioner is serious about finding ways to reduce the number of disability beneficiaries:

Our own adjudicative experience suggests that the current rules should be revised to more accurately reflect the ages at which adjustment to other work becomes increasingly difficult. Since 1978, we have made millions of determinations and decisions at step five of the sequential evaluation process. It appears that there are many jobs that individuals, despite their age, are capable of performing and adjusting to, even though they have not done those jobs previously. It is appropriate for our rules to be adjusted to reflect these changing conditions.

Is it really easier in 2005 for a 50-year old factory worker who is now limited to sedentary work to adjust to "service and knowledge-based jobs"?  What data from the Commissioner's extensive "adjudicative experience" support this change? Is she willing to share it?

The comment period ends January 3, 2006.

Available in text and PDF

70 Fed. Reg. 67101-67109 (November 4, 2005)

SSA Issues NPRM Regarding Exemption of Work Activity as a Basis for a Continuing Disability

"We propose to revise several of our rules in subparts J and P of part 404 and subparts I and N of part 416 of our regulations:

• To explain that we will not start a continuing disability review based solely on your work activity if you are covered by section 221(m) of the Act;
• To incorporate rules about not starting a continuing disability review that are contained in another part of our regulations and apply to you if you are using a ticket under the Ticket to Work program;
• To explain how we consider activities from work in continuing disability reviews if you are covered by section 221(m);
• To clarify how we determine continuing disability at the last two steps of the medical improvement review standard sequential evaluation process if you are not covered by section 221(m);
• To explain how we evaluate your work when we decide whether you have engaged in substantial gainful activity for purposes of determining whether your disability has ceased, if you are covered by section 221(m);
• To explain that our action to start or to discontinue a continuing disability review is not an initial determination; and
• To eliminate the use of the secondary substantial gainful activity amount for evaluating work done by an employee before January 2001."

The comment period ends December 12, 2005.

Available in text and PDF.

70 Fed. Reg. 58999-59015 (October 11, 2005)

SSA Issues Proposed Rules Regarding the Ticket to Work Program

The Social Security Administration has issued a Notice of Proposed Rule Making to revise its regulations regarding the Ticket to Work program:

We are proposing to make revisions to the current rules to improve the overall effectiveness of the program in assisting beneficiaries to maximize their economic self-sufficiency through work opportunities. These revisions are based on our vision of the future direction of the Ticket to Work program, our experience using the current rules, and recommendations made by a number of commenters on the program.

Available in text and PDF.

70 CFR 57222-57237 (September 30, 2005)

SSA Issues Proposed Rules for Evaluating Growth Impairments in Children

"We are planning to update and revise the rules we use to evaluate growth impairments of individuals under age 18 who apply for, or receive, disability benefits under title II and Supplemental Security Income (SSI) payments based on disability under title XVI of the Social Security Act (the Act). "

The comment period ends November 7, 2005.

Available in text and PDF

70 FR 53323-53325 (September 8, 2005)

SSA Proposes Changes to Income and Resource Provisions of SSI

The SSA issued proposed rules changing the way income and resources are considered in the Supplemental Security Income program:

We propose to revise our regulations on how we determine an individual's income and resources under the SSI program based on the SSPA of 2004, enacted on March 2, 2004. Some of the provisions of the SSPA make a number of changes in the way we determine income and resources including: how we calculate infrequent and irregular income; what interest and dividend income we exclude; how we count cash military compensation; and when we exclude gifts for tuition or educational expenses from income or resources. We are also proposing to apply the exclusions required by the SSPA when determining the countable income and resources of an ineligible spouse or ineligible parent.

The comment period ends November 7, 2005.

Available in text and PDF.

70 FR 52949-52952 (September 6, 2005)

Quick Take on the Commissioner's New Approach to the Administrative Review Process

A very quick take on the COSS's "new approach" to the disability review process, without critique. The COSS says that while eDIB will significantly reduce case processing times, "eDIB alone is not enough. . . . We have concluded that to significantly improve disability adjudications, we must change the process itself."  The twin objectives of these changes are (1) to make the "right decision" as soon as possible and (2) to foster return to work as soon as possible. The COSS adds these new ingredients to the alphabet soup of disability determination:

Quick Disablity Determination (QDD): QDD units in each DDS staffed by "experienced disability examiners" focused exclusively on making expedited favorable decisions within 20 days or less. QDD units cannot make unfavorable decisions, and if it will take longer than 20 days to make a decision, the claim will be referred to DDS for normal adjudication procedures.

Federal Expert Unit (FEU): A national network of medical, psychological and vocational experts available to adjudicators (stages agencies, the FROs, ALJs and the Decision Review Board) throughout the country, presumably via video teleconferencing. SSA will quickly develop standards with respect to qualifications for these experts.  If expert testimony is needed, ALJs must use an expert from the network who will be made available on a "rotational basis, taking into account the decisionmaker's potential need to have an expert who is physically located nearby."

Federal Reviewing Official (FRO-code name "FRODO"):  An attorney who will conduct a review of the record and issue a favorable or unfavorable written decision in every case the FRO reviews. Replaces reconsideration step. If FRO intends to issue favorable decision, FRO must have FEU expert evaluate the evidence before issuing decision. FRO insures "to the maximum extent possible the accuracy and consistency-and thus the fairness-of determinations made at the front end of the process."

Decision Review Board (DRB):  Comprised of ALJs and AAJs appointed by the COSS "who will have staggered terms and serve on a rotational basis." Will generally select and review an equal number of favorables and unfavorables. Claimants have no right to request review by DRB of an unfavorable ALJ decision. If DRB reviews case, it must complete its review within 90 days of claimant's receipt of ALJ decision. Every ALJ decision will be screened to determine if DRB review is appropriate. DRB has wide-ranging responsibilities. Will be headed by a member of the Disability Program Policy Council (a new policy development and review organization also described at length in the NPRM)

Other Significant Changes:

• Recon is eliminated and replaced with a FRODO.
• The Appeals Council is eliminated and the right to appeal unfavorable ALJ decisions to a higher administrative level is eliminated. SSA says that "if we determine that our proposed changes adversely affect the disability determination process or the Federal courts over time, we will amend our regulations as necessary."
• Strict requirements regarding submission of evidence. Under new regs, ALJ will advise of time and place of hearing within 90 days of filing of request for hearing. Claimants must have at least 45 days advance notice of date of scheduled hearing. Claimants must submit evidence no later than 20 days before the hearing. The record is closed after the ALJ issues the decision.
• A preponderance of the evidence standard is applied to all decisions except at the DRB where a substantial evidence review standard is applied.
• SSA will develop "standardized decision writing formats" to promote consistency and accountability at DDS, FRO and ALJ levels of review, tailored to each level of review.
• New and material evidence as a basis for reopening is eliminated.
• These changes will be implemented gradually, region by region, and carefully monitored to address problems as they arise. Current rules and regs will continue to be used in regions where new rules are not yet implemented.

The devil is in the details, and this overview is limited to the COSS's summary explantation of the details as contained in the preamble to the regs.  Actual proposed regs to be reviewed later. 

Here again is the flowchart for the new approach.

SSA Announces Proposed Rules to Revamp Administrative Review Process in Disability Claims

Thirty-five pages for your morning reading.  Have at it!

"The Social Security Administration is committed to providing the type of service the American people expect and deserve. In light of the significant growth in disability claims, the increased complexity of those claims, and the younger age of beneficiaries in recent years, the need to make substantial changes in our disability determination process has become urgent. We propose to amend our administrative review process for benefit claims you file under title II of the Social Security Act (Act) based on disability, and for applications you file for supplemental security income (SSI) payments based on disability or blindness under title XVI of the Act. We expect that the changes we are proposing will improve the accuracy, consistency, and timeliness of decision making throughout the disability determination process."

The comment period ends October 25, 2005.

Available in text and PDF

70 FR 43589-43624 (July 27, 2005)

SSA Issues Proposed Rules Regards PASS Plans

"We are proposing to amend our regulations to implement section 203 of the Social Security Independence and Program Improvements Act of 1994. Section 203 of this law amended section 1633 of the Social Security Act to require us to establish by regulations criteria for time limits and other criteria related to plans to achieve self-support (PASS). The law requires that the time limits take into account the length of time that a person needs to achieve his or her employment goal, within a reasonable period, and other factors as determined by the Commissioner to be appropriate."

The comment period ends September 9, 2005.

Available in text and PDF

70 FR 39689-39692 (July 11, 2005)

Comment Period Reopened for Proposed Rules Regarding Ethical Conduct of SSA Employees

From the Summary:

On February 11, 2005, SSA, with the concurrence of the Office of Government Ethics (OGE), published a notice of proposed rulemaking (NPRM) in the Federal Register (70 FR 7192-7196) that would supplement, for officers and employees of SSA, the OGE Standards of Ethical Conduct for Employees of the Executive Branch. The proposed regulations would set forth prohibitions and prior approval requirements for certain outside employment and other outside activities for all SSA employees, except special Government employees, and would set forth additional prior approval requirements for SSA Administrative Law Judges. To allow the public additional time to send us comments, we are reopening the comment period.

The reopened comment period ends June 3, 2005.

Available in text and PDF

70 FR 23065 (May 4, 2005)

Proposed Rules Revising SSA Regulations re Representatives

Important proposed revisions to the rules governing representatives in Social Security cases:

We propose to revise our regulations to identify additional bases upon which we may bring charges to disqualify an individual from acting as a representative before the Social Security Administration (SSA), and to set forth the conditions under which we will reinstate an individual whom we have disqualified as a representative because the individual collected or received, and retains, a fee in excess of the amount we authorized.

As in the other notices issued today, the comment period for these proposed rules ends June 13, 2005.

Availabe in text and PDF

70 FR 19361-19366 (April 13, 2005)

SSA Proposes Rules Re Representative Payees, Misleading Advertisements and More

SSA has announced proposed rules that would amend current rules by "holding representative payees liable for the wrongful conversion of Social Security benefits and by adding a provision for withholding disclosure of material statements to the Social Security Administration. These proposed rules would also amend the current rules by prohibiting offers that charge fees for products or services otherwise provided free of charge by the Social Security Administration, unless sufficient notice is provided, and by adding to the list of enumerated terms that could be used as part of misleading advertisements. These revisions reflect provisions of the Social Security Protection Act of 2004."

Comments on the new rules must be received no later than May 23, 2005.

Available in text and PDF.

70 FR 14603-14607 (March 23, 2005)

SSA Issues Proposed Rules for Subsidies for Medicare Part D Prescription Drug Coverage

SSA has issued a set of proposed rules to be used in evaluating applications for premium and cost-sharing subsidies for the new Medicare Part D prescription drug benefit:

The purpose of the subsidy program is to assist some Medicare beneficiaries, who have limited financial means, to pay for voluntary Medicare prescription drug coverage under the Medicare Part D program. If you have low income and limited resources, you may be eligible for a subsidy to help you pay your monthly premium, your copayments, and the annual deductible under your Medicare Part D prescription drug plan. If you are a Medicare beneficiary or are applying for Medicare benefits and you want to receive a subsidy, you must follow a two-step process to obtain prescription drug benefits

Available in text and PDF

70 FR 10558-10572 (March 4, 2005)

SSA Publishes Proposed Rules re Ethical Conduct for SSA Employees

The Social Security Administration (SSA) has published proposed rules that will supplement the Office of Government Employees (OGE) Standards of Ethical Conduct for Employees of the Executive Branch:

The proposed regulations would set forth prohibitions and prior approval requirements for certain outside employment and other outside activities for all SSA employees, and would set forth additional prior approval requirements for SSA Administrative Law Judges.

The comment period ends March 14, 2005.

Available in text and PDF

70 FR 7192-7196 (February 11, 2005)

SSA Withdraws Proposed Rules for Hematological Disorders

SSA has withdrawn proposed rules for hematological disorders first published in a Notice of Proposed Rulemaking (NPRM) on November 27, 2001:

In that NPRM, we proposed revisions to both the listings for hematological disorders and the listings for malignant neoplastic diseases. The public comments we received on the NPRM raised significant issues about the proposed listings for some of the hematological disorders, and we have decided to withdraw the proposed rules for hematological disorders while we obtain additional input to resolve these issues. We plan to publish a new NPRM for the hematological disorders listings at a later date.

Available in text and PDF

69 FR 67039 (November 15, 2004)

SSA Announces Reopening of Comment Period on Revised Listings for Chronic Liver Disease

The Social Security Administration (SSA) has announced that it is reopening the comment period for 60 days to consider additional comments on SSA's proposal to remove several of the chronic liver disease listings. SSA originally published a Notice of Proposed Rulemaking (NPRM) on November 14, 2001 entitled Revised Medical Criteria for Evaluating Impairments of the Digestive System. That NPRM included the proposal to remove several chronic liver disease listings:

When we published the NPRM, we provided a 60-day comment period that ended January 14, 2002. We have reviewed and considered all the comments we received during the comment period. However, we received few comments regarding our proposed revisions to the listings that specifically involve chronic liver disease. Because we believe that the revisions we propose are significant, we want to ensure that the public has another opportunity to review and comment on those proposals involving the evaluation of chronic liver disease.

To be considered, comments must be received by January 7, 2005.

Available in text and PDF

69 FR 64702-64703 (November 8, 2004)

SSA Proposes New Rules for Evaluating Cardiovascular Impairment

The Social Security Administration (SSA) has issued proposed rules revising the medical criteria for evaluating cardiosvascular impairments:

We last published final rules revising the listings for the cardiovascular body system in the Federal Register on February 10, 1994 (59 FR 6468). In that notice, we said that those rules would be effective for 4 years unless we extended them, or revised and issued them again. The current listings for the cardiovascular system will no longer be effective on July 1, 2005, unless we extend them, or revise and issue them again. We are proposing these revisions because we decided to update the medical criteria and provide more information about how we evaluate cardiovascular impairments.

The comment period ends November 15, 2004

Available in text and PDF.

69 FR 55873-55894 (September 16, 2004)

SSA Announces Proposed Rules re Cross-Program Recovery of Overpayments

The proposed rules, among other things, allow recovery of Title II overpayments from Title XVI benefits and Special Veterans Benefits (SVB). Here's the key section:

We propose to change the regulations in 20 CFR parts 404, 408 and 416 to reflect the expanded cross-program recovery authority. Currently, part 404 has no provisions permitting cross-program recovery, since that option has not been applied to collect title II benefit overpayments. In part 404, we propose to add new Sections 404.530, .535, .540, and .545, which parallel existing regulations at Sections 408.930 through 408.933, to include the expanded authority to recover title II overpayments as follows:

We may withhold from a current monthly SSI payment no more than the lesser of that payment or 10 percent of the monthly income to recover a title II overpayment;

We may withhold no more than 10 percent of current monthly SVB payments to recover a title II overpayment;

We may withhold up to 100 percent of SSI and SVB past-due payments to recover a title II overpayment.

We propose to change Sections 408.930 through 408.933 to reflect the expanded authority to recover title VIII overpayments as follows:

We may withhold from a current monthly SSI payment no more than the lesser of that payment or 10 percent of the monthly income to recover an SVB overpayment;

We may withhold no more than 10 percent of current monthly title II benefits to recover an SVB overpayment;

We may withhold up to 100 percent of title II and SSI past-due payments to recover an SVB overpayment. . . .

Emphasis supplied.

The comment period ends September 23, 2004.

Available in text and PDF

69 FR 51962-51967 (August 24, 2004)

SSA Announces Proposed Rules Revising Listings for Genitourinary Impairments

SUMMARY: We propose to revise the criteria in the Listing of Impairments (the listings) that we use to evaluate claims involving genitourinary impairments. We apply these criteria when you claim benefits based on disability under title II and title XVI of the Social Security Act (the Act). The proposed revisions reflect advances in medical knowledge, treatment, and methods of evaluating genitourinary impairments.

The comment period ends October 22, 2004.

Available in text and PDF.

69 FR 51777-51784 (August 23, 2004)

SSA Issues Proposed Rules Revising Income and Resource Guidelines in SSI Cases

SSA has issued proposed rules which simplify the determination of income and resources under the Supplemental Security Income (SSI) program. The new regs propose three changes:

• Eliminate clothing from the definition of income and from the definition of in-kind support and maintenance.
• Eliminating the dollar value limit for the exclusion of household goods and personal effects.
• Exclude one automobile (the "first'' automobile) from resources if it is used for transportation for the individual or a member of the individual's household, without consideration of its value.

SSA says that "[t]hese changes will simplify our rules, making them less cumbersome to administer and easier for the public to understand and follow." Amen.

The comment period ends March 8, 2004.

69 FR 554-558 (Jan. 6, 2004)   Text and PDF

Comment Period Extended re Proposed Rules re Reinstatement of Disability Benefits & Notice re Attorney's User Fee

SSA has extended the comment period on proposed rules for reinstatement of entitlement to disability benefits that have been terminated due to work activity:

The Social Security Administration published a notice of proposed rulemaking in the Federal Register on October 27, 2003 (68 FR 61162), proposing rules regarding the expedited reinstatement provision in section 112 of the Ticket to Work and Work Incentives Improvement Act of 1999 (Pub. L. 106-170).

This document extends, to January 16, 2004, the comment period for that notice of proposed rulemaking. If you have already provided comments on the proposed rules, your comments will be considered and you do not need to re-submit them.

69 FR 307 (Jan. 5, 2004)   Text and PDF

SSA has also published a notice regarding the attorney fee assessment rate. (This is the "user fee" that SSA imposes to calculate 25% of the underpayment to claimants for disability benefits.) No surprises here:

The Commissioner of Social Security has determined, based on the best available data, that the current rate of 6.3 percent will continue for 2004. We will continue to review our costs on a yearly basis.

69 FR 387 (Jan. 5, 2004)  Text and PDF

SSA Issues Proposed Rules on a New System of Records Called Electronic Disability (e-Dib) Claim File

The Social Security Administration has issued its highly anticipated proposed rules regarding a new system of records called the Electronic Disability Claim file, a/k/a e-Dib or ae-Dib. (I don't know where the "ae" iteration comes from but Nancy Shor referred to it this way at a recent CLE.) Haven't read the rules yet, but a brief skim revealed this unusual language in the second paragraph:

The proposed eDib Claim File system of records and the proposed routine uses will become effective on January 25, 2004, unless we receive comments warranting that they not be effective.

These, then, are final rules unless something changes. The proposed rules are available in text or PDF formats.

68 FR 71210–71217 (Dec. 22, 2003)

SSA Issues Proposed Rules re Assigning SSNs to Foreign Students

SSA has issued proposed rules that require more information from foreign academic students before SSNs will be issued to them. So what does this have to do with disability benefits? Nothing, but I did discover that the INS is now the BCIS (or USCIS if you follow the link below)--an interesting piece of information:

We propose to clarify our rules for assigning SSNs to foreign academic students in Bureau of Citizenship and Immigration Services (BCIS, formerly the Immigration and Naturalization Service or INS) classification status F-1 (referred to throughout this preamble as F-1 students). Specifically, we propose to add additional evidentiary requirements for F-1 students who are applying for an SSN.

In addition to meeting SSA's requirement to provide evidence of age, identity, legal alien status, and work authorization, F-1 students would also be required to present evidence that employment has been secured before we will assign the F-1 student an SSN. These rules would further enhance the integrity of SSA's enumeration processes for assigning SSNs by reducing the opportunity for fraud through misuse of SSNs.

Rules are available in text and pdf formats.

The deadline to submit comments is February 17, 2004.

68 FR 69978-69980 (Dec. 16, 2003)

SSA Publishes Proposed Rules re Reinstatement of Benefits after Termination due to Work Activity

Proposed Rules regarding reinstatement of disability benefits after those benefits had been terminated due to work activity were published in today's federal register. (Text and PDF)

The expedited reinstatement provision is intended to relieve some
concerns you may have about returning to work. If we terminate your entitlement or eligibility for benefits due to your work activity, this provision provides you an easier way to have your entitlement or eligibility reinstated and to be placed back into payment status. This process should ease some concerns you may have about what will happen if your attempt to return to work is unsuccessful.

The comment period ends December 26, 2003.

SSA Publishes Proposed Changes in Representative Payee Rules

Proposed rules regarding Representative Payees have been published by SSA (text or PDF):

These proposed changes include representative payment procedures for investigating payee applicants, identifying unsuitable applicants, making direct payment in some circumstances, providing advance notice of our determination to make representative payment, and providing affected beneficiaries with the opportunity to appeal our determinations. Also included are procedures for making restitution of benefits where a payee has misused a beneficiary's payments and SSA was negligent in investigating or monitoring the payee, and representative payee policies and procedures for the title VIII program.

The comment period ends November 24, 2003. Mark your calendars!