Although the Social Security Administration (SSA) was required by the White House to submit a reopening plan in July, no details have been made available and the agency’s stance towards the public remains relatively unchanged.
SSA has attempted to address some access issues via new emergency messages (EMs). EM-20028 REV 3, issued August 9, 2021, provides additional guidance to field office (FO) staff in how to schedule in-person appointments, including procedures for screening claimants for symptoms and mask requirements. In person appointments can be scheduled only by managers or designated staff.
Additional guidance was issued on September 8, 2021, in EM-21056, addressing two ongoing problems: inconsistency with the in-person appointment availability and requests for original documentation. This EM clarifies that in-office appointments are designed to “address a limited, critical need and the customer is unable to use our automated services to meet that need,” or if “SSA needs to review original documents.”
SSA had previously clarified that individuals should not mail original green cards. EM-21056 states that staff “must discourage customers from mailing important documents that they should keep secure and maintain in their possession, such as driver’s licenses, passports, or immigration documents.” The EM provides two options: mailing secondary evidence of identity that is considered less sensitive, or an in-office appointment if appropriate “based on customer needs, workloads, and local in-office staffing support.”
In another effort to reduce reliance on in-person appointments, SSA worked with U.S. Citizenship and Immigration Services (USCIS) to revise Form I-485, Application to Register Permanent Residence of Adjust Status, to include additional questions so that applicants can apply for an original or replacement Social Security card without visiting a field office.
SSA has also changed some of the systems used to process requests for reconsideration (in non-disability appeals) and waivers.
Ongoing Challenges at the FOs
While these changes may yield some improved efficiency, systemic problems persist in obtaining service at the FOs. Recently, SSA’s operations failures during the pandemic caught the attention of the SSA’s Office of Inspector General (OIG). As discussed in greater detail on page 13, the OIG recently issued a highly critical report on SSA’s failures with its mail processing, a problem considered by advocates to be long-standing but that has worsened exponentially during the pandemic. SSA has since reported to advocates that the status of mail processing has improved dramatically in the past month, but advocates continue to report problems.
Underpayments Due to Pandemic-related Financial Assistance
SSA has made some progress with Supplemental Security Income (SSI) claims involving pandemic-related financial assistance. Claimants whose retroactive benefits were on hold or who had incurred overpayments due to the receipt of such benefits saw their claims processed and paid after having the claims on hold until SSA updated its policy governing disaster relief. (See July 2021 newsletter for details.) Senior staff at SSA recently reported to advocates that the agency has automatically processed and issued retroactive benefits to claimants previously underpaid due to receipt of pandemic assistance. It has also identified individuals whose benefits were terminated for such income but the agency states that those claims have not been completed as they require manual processing.
Lawsuit Filed Re Overpayments
SSA’s failures to deal with overpayments during the pandemic, however, are the subject of new litigation. A class action lawsuit filed on September 12, 2021, in the United States District Court Eastern District of New York by five SSI mvrecipients challenges SSA’s failures during the pandemic. The case was brought on behalf of a class of current and future SSI recipients who were assessed an overpayment debt since the onset of the pandemic in March 2020.
The class action, Campos v. Kijakazi, asks SSA to fix the streamlined waiver process it created to address overpayments related to the COVID-19 pandemic, so that the process is applied to everyone impacted by the pandemic. In August 2020, SSA issued an interim rule creating an easier process to waive certain overpayments during the early months of the pandemic. However, the agency didn’t inform people of the process, and the waiver only covered the first six months of a pandemic that is still ongoing.
Plaintiffs also seek a pause on overpayment recoupment during the time SSA’s field offices are closed and for SSA to ensure that all recipients have an effective way to engage with the agency. Plaintiffs also want SSA to stop imposing penalties during this period in which recipients have no effective way to reach SSA.
The case was filed by New York Legal Assistance Group, Justice in Aging, and Arnold & Porter.
Ongoing Challenges with Evidence Development
SSA and advocates alike continue to face challenges developing and collecting evidence due to the pandemic. Attorney Kevin Liebkemann and intern Steven Mirsen of Legal Services of New Jersey (LSNJ) recently published an article with Dr. Alyssa Scher regarding the impact of the COVID-19 pandemic on disability claims. It focuses on the challenges of obtaining medical treatment and developing adequate medical evidence.
Challenges in providing and obtaining medical care during this time include disruption in treatment, limited ability to use telehealth, and constraints on the ability of telehealth to capture all the information needed. The authors noted the inability of SSA’s current rules to fully and fairly take into account these issues.
Advice for advocates to mitigate some of these harmful effects include: (1) promptly and proactively identify continuity of care issues and urge clients to report such problems; (2) improve medical documentation to address any gaps by obtaining evidence from other sources and/or encouraging clients to keep symptoms diaries; (3) affirmatively document and explain reasons for gaps in treatment; (4) when appropriate, solicit opinions from treating sources when symptoms might be related to COVID-19; and (5) carefully consider the timing of claim and choice of hearing, taking into account the need to develop more evidence.
The article, Diagnosing COVID-19’s Effects on Social Security Disability Programs, appears in the October 2021 issue of the LSNJ Report.