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Medicaid “Unwinding” Scheduled to Begin

Posted on January 31st, 2023

Under the federal Families First Coronavirus Response Act, existing Medicaid recipients were initially protected from benefits termination after March 18, 2020, through the end of the COVID-19 pandemic public health emergency (PHE).  The PHE was renewed on January 11, 2023, and is now due to expire in mid-April.  Although it is possible the PHE will be extended again, some of the Medicaid protections will be ending soon and will impact many Social Security claimants.


Under federal guidelines updated on January 5, 2023, states must initiate a renewal process for all individuals enrolled in Medicaid following the end of the continuous enrollment condition, a process referred to as “unwinding”.  Many recipients will not have returned a renewal for nearly 3 years, if at all, so the process will be unfamiliar.


New York State set forth its timeline on January 13, 2023, under which renewals will start in March 2023 in New York City and April 2023 in the rest of the state.  All 7+ million Medicaid recipients will receive renewals over a 12-month period.

This year, there are also significant (positive!) changes to eligibility for Medicaid and the Medicare Savings Program in New York that could affect your clients.  Non-MAGI Medicaid covers people age 65 and over, disabled, and blind.  The increased income and asset limits for non-MAGI Medicaid, and increased income limits for the Medicare Savings Program, are based on percentages of the Federal Poverty Levels (FPLs). While the new FPLs have been released, counties cannot use these levels until the state Department of Health announces them via General Information System (GIS) messaging. As of January 1, 2023, the 2022 FPLs are being used with the increased income limits.


Advocates should inform clients or other known Medicaid enrollees to update their address and be on the lookout for important Medicaid notices.  Those enrolled in Medicaid for the Disabled, Aged 65+, Blind through their local district can update their address with the county’s local District Social Services.  For questions about these changes, advocates can email the Health Team at Empire Justice Center at health@empirejustice.org.


SSA to Incorporate Inclusive Language in Documents

Posted on January 31st, 2023

The Social Security Administration (SSA) has directed its employees to incorporate inclusive language in all the agency’s written materials as those materials are drafted and updated.  In Emergency Message (EM) 22052, effective September 22, 2022, SSA explains this directive is in keeping with administration and agency priorities to provide a service that reflects the diversity of customers.


Inclusive language is defined as language that reflects recognition of diversity and fosters participation by all:

Inclusive language promotes respect by placing individuals first, over characteristics. Inclusive language is particularly important for individuals in underrepresented communities and those who have been historically affected by inequality, including, but not limited to people of color, migrants, women, individuals who identify as LGBTQI+, older individuals, individuals with disabilities and individuals experiencing persistent poverty or homelessness.


Authors are directed to a new section of the internal Quality Initiative for Commissioner’s Correspondence (QUICC) Handbook, Incorporating Inclusive Language in Internal & External-Facing Documents and Resources for guidance – a resource not available to the public. The EM indicates that the directive will apply to all internal and external documents, including disability decisions. It does acknowledge, however, that adjudicators may continue to use the term “disabled” when making findings for purposes of disability claims.


Service of Process Rules Amended for Federal Court Appeals

Posted on January 31st, 2023

As reported in the October 2022 issue of the Disability Law News, the Supreme Court has amended the Federal Rules of Civil Procedure (FRCP) to include new supplemental rules for Social Security Appeals. In addition to mandating the time allotted for filing briefs (30 days), the supplemental rules also instituted electronic service of process by plaintiffs. The Social Security Administration (SSA) announced a final rule this month related to those changes.


The Federal Register notice amends 20 C.F.R. §423.1, clarifying that electronic service will be accepted in accordance with the supplemental federal rule implemented on December 1, 2022. Once the plaintiff files a complaint, the district court will effectuate service by transmitting a “Notice of Electronic Filing” to the Office of General Counsel (OGC) and U.S. Attorney’s office. This practice will apply in all individual claims for benefits under title II, VIII, or XVI of the Act and individual claims for a Medicare Part D subsidy under title XVIII of the Act, including those in which the complaint is not filed electronically, presumably by pro se plaintiffs. Although some district courts within the Second Circuit were already using electronic service per their local rules, others were not. Advocates practicing in district courts that were still using “snail mail” service report the courts began to use the new procedure for cases filed after December 1st.


The notice also explains the recent reorganization of SSA’s Office of General Counsel (OGC), which has been centralized. The Regional OGC offices “no longer exist.”  There are now five offices within OGC: the Office of Legal Operations (OLO), the Office of General Law, the Office of Privacy and Disclosure (OPD), the Office of Program Law, and the Office of Program Litigation.  The mailing addresses of the former regional offices have been removed. Any communications with OGC should now be     directed to the SSA or the Commissioner of Social Security and should be sent to the Office of the General Counsel, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235. These communications include, for example, summonses and complaints to be served by mail in cases that do not involve claims described above such as cases under the Federal Tort Claims Act and requests for records and testimony.


2023 SSI Benefits Chart Available

Posted on January 31st, 2023

As reported in the October 2022 issue of this newsletter, this year’s cost-of-living (COLA) increase is at a historic level of  8.7%, the highest since 1981. The Supplemental Security Income (SSI) Benefits Level Chart published by New York’s Office of Disability and Temporary Assistance (OTDA) has been updated for 2023 and is available here, reflecting a monthly SSI benefit rate increase of $73, from $841 to $914. The SSI rate for couples will increase from $1,261 to $1,371.  The New York State Supplement (SSP) will remain the same.


When Will SSA Finally Replace the D.O.T.?

Posted on January 31st, 2023

Advocates who represent claimants in disability claims before the Social Security Administration (SSA) know all too well the frustrations of dealing with the outdated Dictionary of Occupational Titles. The D.O.T., as it fondly called, is a compilation of job titles and requirements first published by the Department of Labor in 1938. Most entries have not been updated since 1977. Yet Administrative Law Judges (ALJs) and other SSA adjudicators, as well as the vocational witnesses upon whom they rely, still depend on it at Step Five of SSA’s Sequential Evaluation process when deciding if there are a sufficient number of jobs that a claimant can perform. Advocates estimate that tens of thousands of claims are denied nationally based on this outdated data for numerous jobs that are clearly obsolete. How many advocates have confronted vocational testimony about allegedly numerous nut sorter or addresser jobs?


A December 27, 2022 article in the Washington Post chronicles the disheartening saga of SSA’s efforts to replace the D.O.T. SSA has been deliberating since the 1990s how to revise the list of occupations to reflect jobs that actually exist in the modern economy. But promises to Congress and $250 million later, SSA is still relying on the D.O.T. An interactive system built by the Bureau of Labor Statistics for SSA using a national sample of 60,000 employers and 440 occupations covering 95 percent of the economy sits unused. Instead, SSA claims it is working on its own data source “informed” by the Department of Labor. SSA plans to ask the labor bureau to refresh its occupational information every five years. The next wave is scheduled to start in 2023 at a cost of $167 million, auditors found. But the costs of SSA’s efforts to date have been questioned by both the General Accountability Office (GAO) and an audit by SSA’s Inspector General.


According to Lisa Rein of the Washington Post, SSA’s lack of progress has been compounded by a number of factors, including a power vacuum at SSA that can delay costly projects. In the past two decades, SSA has had six acting commissioners and only three Senate-confirmed commissioners. And any decision on a new system is fraught with political considerations. Will it result in a tightening of eligibility and be used to deny more claims?


The harm done in basing disability decisions on these outdated vocational considerations is further compounded by the vagaries of vocational testimony. Advocates are all too familiar with the lack of data supplied by vocational witnesses to support their testimony as to the availability of jobs. Rein cites the “blistering” dissent by Justice Neil Gorsuch in the Supreme Court’s 2019 Biestek decision upholding agency decisions even when vocational witnesses refuse to divulge the data upon which they relied.


In the meantime, SSA continues to rely on jobs that are clearly obsolete. Rein cites a 2011 SSA study finding that among the jobs most commonly cited in denying claims was “addresser.” According to advocates, not much has changed since then. Kevin Liebkemann, Chief Counsel for Disability Rights and Veterans’ Rights at Legal Services of New Jersey (LSNJ), has developed training materials for advocates to use when cross-examining vocational witnesses about some of these more notorious jobs. Kevin, who was quoted in the Washington Post article, made available sample scripts, including cross on the infamous Surveillance System Monitor position, when he presented a training on these issues for DAP advocates.


Contact Maia Younes at:myounes@empirejustice.org to obtain the scripts and other materials. Future DAP trainings covering cross-examination of vocational witnesses are being planned.


SSAB Encourages SSA to Use Data to Access Equity

Posted on October 31st, 2022

The Social Security Advisory Board (SSAB) is a bipartisan, independent federal government agency established in 1994 to advise the President, the Congress, and the Commissioner of Social Security on matters of policy and administration of the Old-Age, Survivors, and Disability Insurance and the Supplemental Security Income programs. The Board has seven members, appointed by the President, Senate, and House of Representatives. Among its functions is analyzing the Social Security Administration’s (SSA’s) retirement and disability programs and making recommendations, including recommendations on the quality of services that SSA delivers to the public. In that role, the SSAB recently encouraged SSA to measure the impacts of service changes on different populations to inform program administration. See Using Evidence to Improve Service Equity (September 2022).


In its three-part paper, the SSAB reviewed federal management initiatives in the context of SSA. It described administration and agency priorities across customer experience, evidence, and equity. In December 2021, the Biden administration released an executive order (EO) on prioritizing customer experience. The EO required SSA to analyze all services that require original or physical documentation or an in-person appearance and recommend reforms where statutorily feasible. SSA was also directed to develop a mobile-accessible, online process so someone applying for or receiving services from SSA can upload any form, documentation, evidence, or correspondence without traveling to a field office. These changes should give SSA new and better data on how people interact with the agency over time. The Board encouraged SSA to examine the differences between people’s perceptions of the agency’s services and its performance metrics.


The paper also emphasized the Office of Management and Budget’s (OMB) 2021 emphasis on “learning agendas” to identify and prioritize strategies for answering critical policy questions relevant to the agency’s mission and operation. SSA published its learning agenda in March 2022, with six of its ten priority questions supporting the agency’s strategic goal to optimize customer service. The SSAB also reviewed the President’s and OMB’s executive orders (EO) to incorporate a comprehensive approach to equity in all planning. [President Biden’s EO and SSA’s reaction have been discussed in prior editions of this newsletter.]


In the second part, citing challenges faced by SSA during the COVID-19 pandemic, the SSAB noted significant downward trends in the numbers of people receiving benefits.  Disability (DI) awards fell 15 percent in 2021 after falling 11 percent in 2020. Supplemental Security Income (SSI) awards have fallen even more sharply – 27 percent in 2021 after falling 18 percent in 2020. [See the January 2021 edition of this newsletter for more on the decline in SSI applications.]  The SSAB encouraged SSA to review how barriers to non-in-person service affected access, quality, and perceptions among various population groups.  It recommended that SSA review, expand, and make public its research to examine how SSA’s program administration exacerbates or reduces existing disparities in its service delivery.


SSA needs to understand service channel preferences among the various populations served by the agency. Those channel preferences include on-line services such as mysocialsecurity, in-person field office service, 800 number and field office phone service, video services, mail services, and direct and third-party outreach. Each category presents challenges to some claimants, including lack of internet access or literacy, for example. SSAB recommended that before SSA implements any changes in service delivery, it should ensure it has collected the appropriate data to evaluate whether the service change affects how different people access and use its services.


Finally, the SSAB addressed opportunities SSA has to measure whether the intended impact of  its services is equitably distributed among the public. It acknowledged that assessing whether SSA provides services equitably is difficult when the agency does not comprehensively collect or publish program data by race, ethnicity, and other population characteristics that correlate with underserved populations. [See prior editions of this newsletter for further discussions of lack of SSA data.] While acknowledging that SSA is making slow progress with data exchanges and voluntary information to collect the data, it recommended that SSA also examine the share of service variations across socioeconomic groups that cannot be associated with observable applicant and case characteristics, such as individual LGBTQ+ communities and smaller racial and ethnic groups.


The SSAB made seven specific recommendations to SSA that are available in the report.


Spotlight on Marriage Penalties

Posted on October 31st, 2022

A recent article in The New York Times highlighted the barriers many recipients of Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) face if they want to marry. The article features a couple that met on-line, fell in love, and became engaged, only to endlessly postpone their marriage because Lori receives Childhood Disability Benefits (CDB) based on a diagnosis at age fifteen of disabling ankylosing spondylitis.


Current laws prevent disabled individuals eligible for CDB – also known as Disabled Adult Children or  DAC – from receiving benefits if they marry. A “child” may be eligible for benefits based on the account – or earnings record – of a dead, disabled, or retired parent in several circumstances, including if able to prove disability before age 22.  A long-time recipient of SSI, for example, may become eligible for Social Security Title II benefits without an earnings record of their own when a parent dies or retires. The claimant must, however, have become disabled before age 22 and be unmarried. See 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.351; POMS DI 10115.001.


What if the claimant was married but the marriage ended by divorce or annulment before the application for CDB? Under the Social Security Administration’s (SSA) byzantine rules, the claimant would be eligible. See POMS RS 00203.020. But the claimant would not be eligible if she had previously received benefits under the same wage earner’s account as, for example, a minor whose benefits terminated at age 18, became disabled before age 22, but married and divorced in between.  If, however, the marriage was annulled or void, entitlement might be possible. See POMS RS 00203.015. But if the claimant married another CDB recipient, she could be or remain eligible for CDB. See POMS RS 00203.035.


These exceptions, however, do not apply to the majority of current 1.1 million CDB recipients who, like Lori, want to get married. She and her fiancé cannot afford to lose her monthly benefits, or the Medicare coverage that is attached to her continued eligibility. Lori contacted Representative Jimmy Panetta, a Democrat in California’s 20th Congressional district. Earlier this year, he introduced the Marriage Equality for Disabled Adults Act, which includes a provision nicknamed “Lori’s Law” that would remove the marriage restriction. But according to Ayesha Elaine Lewis, a staff attorney with the Disability Rights Education and Defense Fund, while change at the federal level is “a real possibility…it will be a long and challenging journey.”


SSI recipients face similar challenges if they want to marry. Under SSI’s strict income rules, any income of their spouses would be “deemed” to them, which could make them ineligible for benefits. [See the April edition of this newsletter for SSA’s deeming guide.] And disabled SSI recipients in relationships are at risk of losing their benefits, and possibly their Medicaid, even if not married under SSI’s “holding out” provisions. Individuals are considered married for SSI purposes and thus subject to deeming rules if legally married or “living together in the same household and holding themselves out as a married couple to the community in which they live.”  See POMS SI 00501.150.


Remaining single remains the only viable option for many couples in these situations.


SCOTUS Amends the FRCP for Social Security Appeals

Posted on October 31st, 2022

The Supreme Court of the Unites States (SCOTUS) recently adopted amendments to the Federal Rules of Civil Procedure (FRCP) that will apply to appeals of Social Security claims. The new supplemental rules, which take effect on December 1, 2022, govern all stages of a federal court action under 42 U.S.C. § 405(g) and are meant to create a simplified, uniform procedure for the district courts to follow.


The current procedure allows each district court, all ninety-four of them, to establish local rules or standing orders governing Social Security appeals. The district courts decide the form of complaints, service, answers, motions, briefing and the timing for each stage. But a study by the Administrative Conference of the United States, a federal agency whose mission is to make government “work better,” showed a lack of relative uniformity throughout the United States. Instead, the districts’ rules vary widely.


Where the new rules conflict with local rules or standing orders, district courts will need to amend. For example, Rule 5 eliminates joint statements of fact “as the means of review on the administrative record,” which some district courts have required. Supplemental rules six through eight establish deadlines to file the plaintiff’s brief (within thirty days of the answer), the commissioner’s brief (within thirty days of the plaintiff’s brief), and the reply brief (within fourteen days of the commissioner’s brief). This change will effectively cut in half the timeframes established by some district courts, including in New York.


The new rules were proposed by the Judicial Conference of the United States. The Judicial Conference is comprised of the Chief Judge of the United States, chief judges from each circuit court of appeals, a district judge from each of the twelve geographic circuits, and the chief judge of the United States Court of International Trade. The Conference, created by Congress in 1922, promulgates policy regarding the administration of federal courts in the United States.


Based on the Administrative Conference’s recommendations, the Judicial Conference proposed supplemental rules that apply exclusively to Social Security appeals. According to the Conference’s Committee on Rules of Practice and Procedure, two questions needed to be answered: whether adopting uniform rules as opposed to allowing district courts to write their own rules was appropriate, and whether the benefit of uniform rules outweighed the presumption of trans-substantivity, i.e., the uniform treatment of all cases under the FRCP.


The Committee decided the benefits of uniform rules for Social Security cases outweighed local autonomy and trans-substantivity and, in August 2020, proposed supplemental rules for public comment. The Judicial Conference reported “modest” response to this request for comment; most district court and magistrate judges supported the new rules. The Conference noted, however, that the Department of Justice (DOJ) opposed based on the theory of trans-substantivity. Instead, the DOJ recommended the development of a model local rule. The National Organization of Social Security Claimants’ Representatives (NOSSCR) submitted comments to the Judicial Conference, emphasizing the need for local discretionary control instead of setting Social Security cases apart. NOSSCR noted there would be less of a need to file an appeal in federal court if SSA complied with their own policies at the administrative levels.


The rules were unanimously approved (the DOJ abstained from voting), adopted by the Supreme Court, and transmitted to Congress. See FRCP Amendments.


Jennifer Karr, Senior Statewide Attorney for DAP, participated in the Western District of New York(WDNY) committee that proposed changes to their Local Rule 5.5 to conform with the new supplemental rules. Other district courts throughout the Second Circuit are presumably making their own changes. Advocates are advised to check their local rules.


Will these changes result in an increase in requests for additional time to meet the new, strict filing deadlines? Please keep us informed of whether your district courts duly grant these requests, or of other challenges faced under the new rules.


Historic COLA Increase for 2023

Posted on October 31st, 2022

The Social Security Administration (SSA) announced a record-breaking cost-of-living adjustment (COLA) increase to Social Security and Supplemental Security Income (SSI) benefits for 2023. Monthly benefits will increase an astonishing 8.7 percent, the largest since 1981. Last year’s COLA increase was also a record-breaker at 5.9 percent.


The monthly SSI benefit rate will increase $73, from $841 to $914, compared to last year’s $47 increase. The SSI rate for couples will increase from $1,261 to $1,371. The SSI resource limits remain unchanged at $2,000 for individuals and $3,000 for couples. The New York State supplement (SSP) will continue at $87 for individuals and $104 for couples living alone; the living with others supplements remain at $23 and $46, respectively. We will post the 2023 New York State SSI benefit chart when it becomes available.


Social Security’s disability thresholds are also increasing. Substantial Gainful Activity (SGA) for Non-Blind workers will increase from $1,350 to $1,470 per month. The SGA for Blind workers increases from $2,260 to $2,460 per month. The Trial Work Period (TWP) threshold increases from $970 to $1,050 per month, and the Quarter of Coverage amount will increase to $1,640. The maximum taxable earnings for OASDI (old-age, survivors, and disability insurance) purposes will increase to $160,200 for 2023.


There is more good news for Medicare recipients. The Medicare Part B premium rate will decrease, from $170.10 in 2022 to $164.90 in 2023. Specific information about 2023 Medicare changes is available at www.medicare.gov.


These changes will take effect in January 2023, except for SSI recipients, who normally receive their benefits on the first of the month. Because January 1, 2023, is both a holiday and a weekend, they will receive their benefits two days early, on December 30, 2022! See SSA’s Fact Sheet on 2023 Social Security Changes.


New Faces Join DAP Statewide Support

Posted on October 31st, 2022

The Disability Advocacy Program (DAP) is welcoming new faces this fall, including new Senior Statewide Support Attorney Jennifer (Jenna) Karr of Empire Justice Center (Empire Justice).  Jenna started this September to replace Kate Callery.


As one of three Statewide Support Attorneys, Jenna will provide information, technical assistance, training, and support to advocates throughout New York State on matters related to DAP.  She will also provide leadership on policy issues, undertake legislative and administrative advocacy and participate in complex litigation.  More about the scope of all the services provided by the DAP State Support team is in the article below.


Jenna brings deep knowledge of Social Security law and subject matter expertise to her new role.  She has been providing direct representation to clients as part of the DAP Practice Group at Empire Justice since 2015.  Her prior legal work included DAP advocacy at the DAP unit of the Legal Aid Society of Northeastern New York from 2008 to 2012.  Her direct services work includes many federal court appeals.  As a supervisor at Empire Justice, Jenna has provided trainings to advocates internally and elsewhere, and she brings leadership on critical issues facing our clients. She is well-known to the DAP community, and has taken key roles in multiple initiatives, including the launch of a reentry outreach project, and a best practices workgroup with other DAP supervisors across the state.


Jenna will remain based in Western New York, in the Rochester office of Empire Justice. She joins fellow DAP Statewide Support Attorneys Emilia Sicilia of Empire Justice’s Yonkers office and Ann Biddle of the Urban Justice Center (UJC) in New York City.


Ann is a familiar face in the DAP community, well known as a DAP coordinator based at Legal Services NYC.  She now becomes a DAP Statewide Support Attorney through UJC.


As an organization, UJC is new to the Statewide Support side of DAP.  In July, UJC began providing state support services to DAP providers as a subcontractor to Empire Justice.  However, the organization has a long history of providing direct representation to DAP clients with mental health impairments, with significant impact litigation in the realm of disability benefits.  This includes a role as lead counsel in Amin v. Colvin, a lawsuit pending against the Social Security Administration (SSA) for its failure to docket non-disability appeals.  Prior impact litigation includes Padro v. Astrue, a class action against SSA for systematic denial of due process, and two class action lawsuits successfully challenging SSA’s policy of automatically denying and suspending benefits based only on a warrant: Martinez v. Astrue and Clark v. Astrue.


Looking ahead, DAP Statewide Support will also provide more opportunities for staff at DAP-funded programs to take on training roles, a development intended to increase inclusivity and diversity of DAP presenters, and to provide professional growth opportunities to advocates across the state.  We will continue to build community statewide, offering statewide trainings and meetings as well as occasional regional meetings.


DAP State Support at Empire Justice will add another new face this fall with the creation of a new Program Coordinator position.  Hiring remains underway for the position, hopefully before the end of the year.  This new position will be focused on data reporting and trainings.