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Recent Activities Concerning Social Security in Late 2012

By Scott B. Elkind, Esq.

The following is an update of activities concerning the Social Security Administration and General Accounting Office activities toward the end of 2012.

SSA Press Releases

The SSA Board of Trustees has estimated that it will take an additional $8.6 Trillion paid into the system over the next 75 years to pay all scheduled benefits.

SSA is very proud of their My Social Security account program which has allowed nearly 1 million people to go online and check their account in less than two months time. This program allows beneficiaries to verify their retirement, disability and survivors benefit amounts and earnings paid into the SSA system. This website application has become necessary since SSA has ceased sending annual earning benefit statements as it has done in the past, but has stopped due to budget constraints.

SSA is partnering with Kaiser Permanente in order to facilitate request and transfer for patient medical records which will save time and expense for both parties given the fact that approximately 70,000 requests

And, last, but not least, SSA has released its most popular baby names list in the U.S. in which Jabob and Sophia were the two most popular along with the name “Elvis” making a comeback, making its way into the top 1000 names again.

GAO Reporting

The GAO report on 9/12/12 faulted Social Security for its failure to give greater consideration to the use of assistive work devices and workplace accommodations and therefore has not “incorporated other modern concepts of disability into its disability determinations.” Social Security expressed concern about more broadly incorporating assistive devices and technologies into the medical listings when such devices and technologies are not readily available. This includes accessibility by employers and availability through insurance coverage. SSA suffers from an inability to ensure that workplace accommodations and is not able to assess the effectiveness of such accommodations in the workplace setting. It was recommended by the GAO that SSA conduct focused studies “on the feasibility of more fully considering assistive devices and workplace accommodations in its disability determinations.” Such a step is basically a concession that SSA if not funded for this aspect and does not have funding or personnel to make it happen. It is not stated, but the GAO is not being realistic in that employers have little incentive to provide jobs for disabled persons where so many more able employees are readily available in the labor pool.

The GAO reported that social security numbers need to be removed from Medicare cards to prevent identity theft. This action will cost $803 – $845M with 2/3 of the cost needed to modify existing state Medicaid IT systems.
The GAO also criticized SSA for its efforts concerning its administration of Children’s Benefits. This report noted a 54% increase of such claims from 2000 – 2011 with the most prevalent diagnoses being attention deficit hyperactivity disorder, speech and language delay, and autism. Disability examiners have reported to GAO that they lack complete information to make decisions noting problems in accessing school records which they believe to be critical in understanding how a child functions. Also, secondary impairment information is often missing. The GAO also faulted SSA for conducting fewer continuing disability reviews (CDRs) since 2000 though being required by law to perform these reviews every three years.

The GAO has also taken issue with SSA’s pace in modernizing its disability programs, designating its disability program as a “high risk area” due to the large increase in persons being found disabled. In particular, the GAO has cited the slow pace in revising the medical and occupational criteria used in administrating the disability program. In 2010, the SSA Commissioner set a 10-year time table for 5-year cycle for updating the medical listings for each body system, replacing the agency’s prior practice for updating listings ranging from 3 to 8 years and then extending these deadlines. Even then, SSA has fallen behind on its new time table. As it stands, SSA has taken from 19 to 33 years of only six body systems. For example, both Neurological and Mental Disorders have not been updated for 27 years. SSA claims it lacks staff and expertise to undertaken the needed revisions. This effort is further complicated by the “unpredictability of the regulatory process.” As of this time, ongoing reviews for comprehensive revision are underway or completed for Special Senses and Speech, Neurological Disorders, Mental Disorders, Hematological Disorders, Musculoskeletal System, and Respiratory System. Future ongoing reviews remain to be undertaken for Skin Disorders, Genitourinary Impairments, Impairments Affecting Multiple Body Systems, Endocrine System, Cardiovascular System, Digestive System, Immune System, and Malignant Neoplastic Diseases. The deadline to review Cardiovascular Systems has already been extended again by SSA.

In addition, SSA has noted the outdated nature of the Dictionary of Occupational Titles issued by the Department of Labor and last updated in 1996. Since that time, DOL has adopted the O*NET whereas SSA cannot implement it into its disability determination process due to a number of incompatibilities. In particular, the O*Net has far fewer job titles as compared to the DOT. Instead, SSA is designing its own occupational information system (OIS) with a goal of completing this database by 2016 at an estimated cost of $108M. SSA still is in the process of developing a strategy for piloting data collections nationwide within the time frame so no real progress has been made on this project as of yet with no real deadline in sight.

As you are aware, disability insurers employ sophisticated actuarial data to determine the population’s risk of becoming disabled and calculate premiums accordingly. That is only the tip of the iceberg when it comes to how insurer’s rig the disability benefit system to reduce payment of disability claims.

One of the main tool utilized by disability insurers to limit disability claims (second only to their outright denial of claims) is the use of various offsets to monthly benefit payments. Once you are determined to be disabled by a private insurer, they will require you to apply for Social Security Disability benefits. They will go so far as to offer you assistance from their own vendors to provide such representation. Further coercion by some companies includes automatic reduction for your estimated benefit should you not comply with their filing and repayment promise requirements.

Why such insistence on claimants pursing Social Security Disability benefits? Under the disability plan, the insurer deducts your acquired Social Security benefits on a dollar-for-dollar basis from the monthly disability benefit. This represents a considerable savings. This savings is magnified when you learn that any dependent benefits achieved from a Social Security disability will also be offset although the insurer never paid a single extra cent toward assisting your children during the pendency of the claim. Not fair? Doesn’t matter. The plan is the plan is the plan. Only then are you starting to learn about the real “plan” the insurer had for you.

The representatives referred to by the insurers are not to be trusted. These companies only exist by acquiring cases from the insurance companies. The companies are their real client, NOT YOU. If the vendor acquires any information which can be utilized against you to deny your private disability claim, they will offer it to the insurer immediately so your benefits can be denied. Afterwards, the vendor will drop your case like a bad habit. It is shameful that this inherent conflict of interest is allowed to occur.

Should you proceed with the vendor and be successful in your case, then the vendor will coerce you to pay back your overpayment in full immediately. Do Not Listen To Them! Although you are required to pay back the benefits, doing so in full places you at risk of having your benefits denied and the insurer keeping your money. At this point, you must subscribe to the Second Golden Rule: “He who has the gold makes the rules.” You will instruct the insurer to take the overpayment from your future benefits. Better for you to budget yourself from funds in savings than to hope for payment each month from a greedy insurer who can deny your claim at will with little recourse to it.

For these reasons, there is no benefit to using the vendors referred to by the insurance companies. Do not hesitate to hire outside counsel to represent you in a Social Security case. There is no penalty for changing counsel and the vendors are required under the law to relinquish your case upon your request. There is only one attorney fee paid under the Social Security Regulations so you will not be charged twice for the same work. In most cases, the disability insurer will reimburse the attorney fee paid to a private counsel for their successful assistance in

your Social Security claim and creating an offset for the insurer. When you consider that you can hire a local attorney who knows the local judges as opposed to a vendor representative (usually not an attorney and not familiar with the requirements of your local administrative law judges), why would you continue to be represented by such companies?

But, hold on, as this is only the beginning to the offset traps set by the insurers in advance of your filing your disability case. The disability plan will also offset for other seemingly unrelated benefits. These include any other government disability plan (Railroad Retirement, State Disability, Civil Service, etc.), workers’ compensation benefits, retirement pensions (Social Security as well as private), third party recoveries from personal injury actions, among others. Each of these offsets presents yet another opportunity for the insurer to crawl back in your pocket and take back the money which you believed you were entitled to. As always, the big print giveth, the small print taketh away in these private disability plans.

As the insurance premiums are calculated based on the generation of offsets, the right to offsets have been upheld in the courts (Or, as the insurance industry touts, “ premiums are made more affordable by virtue of the offset provisions”). There have been very few instances when offsets have been disallowed (most notably, Veterans Benefits).

The lesson is clear: You need to be aware of the coordination of benefits in order to by fully cognizant of all offsets during the course of your disability claim. Obviously, the assistance of an experienced counsel would aid in this somewhat complicated process.

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