Over the past four months, advocates have responded to calls for comments on Social Security Administration (SSA) proposed rulemaking and other requests for information and input. Legal services programs and advocates, including the Disability Advocacy Program (DAP) Statewide Coordinators at Empire Justice Center and the Urban Justice Center (UJC), submitted comments addressing a range of issues, including SSA’s rules governing “in-kind support and maintenance” (ISM), rules for setting the manner of appearance at a hearing, ideas for reducing administrative burdens, and ideas for SSA’s Learning Agenda.
SSA’s current regulatory agenda includes a proposal to exclude the consideration of food from the calculation of ISM when determining the amount of Supplemental Security Income (SSI) payable. While the change is a positive one, the rules for ISM would remain burdensome and complex for both the agency and claimants even if the change was implemented. During the comment period that ended April 17, 2023, Empire Justice and UJC applauded the proposal as promoting equity and simplification but urged that more be done in the future. ISM should be eliminated entirely. Since doing so requires legislative change, the comments recommended that until Congress is willing to act, more steps be taken by SSA to limit the application of ISM. One measure would be to expand the definition of public assistance households so that SSI recipients who also received SNAP are excluded from ISM reporting.
A more recent regulatory proposal by SSA, published May 19, 2023, included changes to SSA’s rules in setting the manner or modality of a hearing. If adopted, the changes would allow claimants to continue utilizing all modalities of hearings – including in-person, video, and audio. However, SSA would revert to the pre-pandemic procedure of requiring a claimant to opt-out of a video hearing within a relatively short amount of time after a person is first given notice of the options of how they may be provided a hearing. Empire Justice and UJC urged SSA to retain in-person hearings as a meaningful choice, and highlighted the challenges faced by low-income claimants in particular, who may face lack of equipment, cell service, internet connection, private space, or even tech skills. The comments also pressed SSA to increase the clarity of the notices that explain how to elect a modality, and to make the option of an in-person hearing the default with the opportunity to “opt in” to video rather than requiring they “opt out” of video if they want to appear in person. Advocates also asked SSA to increase the amount of flexibility given to claimants to change their manner of appearance, beyond the 30 days after the notice of the options.
Advocates also submitted comments to requests for information. SSA asked for input on the priority questions to comprise its FY 2022-2026 Learning Agenda. During the comment period that ended March 2, 2023, Empire Justice and UJC asked SSA to study the effects of the reinstatement of reconsideration in the former “prototype” states. New York was one of the ten former prototype states that saw reinstatement of reconsideration in 2019, a change made without any research or data to support it. Since that time, reconsideration has proven to be inefficient and unduly burdensome with minimal benefit. National statistics indicate that the process is beneficial for very few – approximately 13% of claimants see success at that level – while most see their processing time delayed. Comments also urged SSA to add to its Learning Agenda the study of inequities in how disability claims are adjudicated.
In another comment period ending April 17, 2023, advocates again raised their complaints about reconsideration and ISM, this time in response to a request by the Administrative Conference of the United States (ACUS) for comments on how federal agencies can reduce the administrative burden of how the public accesses government programs and services. Comments from UJC, Empire Justice, and LawNY, which focused on SSA specifically, also highlighted more ways in which the agency’s overreliance on online services was sometimes harming underserved communities. In response to ACUS’s request for suggestions for COVID-era policies that should be expanded, advocates suggested that SSA expand and formalize the “good cause” policy enacted during the COVID-19 pandemic. The comments argued that the pandemic revealed how claimants face an array of circumstances that warrant maximum flexibility in how good cause is applied toward those who have missed a deadline or other obligation. The comments also urged SSA to increase its transparency and accessibility to the public.
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