Big Jolly Politics

politics in Harris County and Texas

The Proposed Medical Review Changes to Social Security Disability Cases Are Beneficial

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Many media sources have been harshly criticizing President Trump for proposed changes to the medical review process for individuals receiving Social Security benefits because of a disabling condition.  This is the primary area of law I practice, and the fears promoted by the media are entirely off base.  The comment period is ongoing through the end of January.  I commented as follows:

I am a representative who has made approximately 4,000 appearances before an ALJ to support claimant’s receiving disability benefits. The proposed MIL category might be helpful for encouraging claimants to seek medical treatment. However, the 5 month waiting period and additional 2 year wait before Medicare pendant benefits is a factor in claimants seeking medical treatment as it improves the availability of medical care. Rather than a 2 year review, a better timing mechanism may be 6 months after Medicare has come into effect.

Another possible consideration is having the ALJ declare in the decision what review category is being assessed. The intent of adding the MIL category is to promote medical treatment and lead to medical recovery. If the claimant is unaware of when the pending review will occur the new medical review category fails its purpose as the claimant does not feel the sense of urgency to receive medical treatment to achieve medical recovery.

Adding the review category in the decision is a de minimis burden on the Administration. It’s simply an additional sentence at the end of the decision stating Medical Review Category <INSERT CATEGORY> is recommended.

While the proposed timing and lack of notification in the process may erode the effectiveness of the change the actual change should be beneficial.  However, the change raises a bigger question – what is the appropriate public policy behind the awarding of disability benefits?

With the proposed change the review categories will be:

Diary category Current policy Proposed policy
MIE 6-18 months 6-18 months (unchanged).
MIL NA 2 years.
MIP 3 years 3 years (unchanged).
MINE 5 to 7 years 6 years.

 

MI is medical improvement, and the categories are Expected, Likely, Possible and Not Expected.  Once an individual is deemed disabled benefits continue until medical improvement has occurred.  Unless there’s a natural process that occurs (such as a bone mending) it’s possible for a person to not receive appropriate medical care until after the review period has passed.  This means that the individual would continue to receive benefits until the next review occurs.

The reason for lack of treatment can range from desire to stay on disability, to inability to afford treatment (Medicare does not attach until 29 months after the disability began), to inability to receive treatment (such as cardiac clearance is denied or a single parent’s inability to care for small children during a surgical recovery period.)  Right now the public policy is combination of determination of benefits (to help those in need) and possible medical improvement (to prevent benefit abuse.)  This policy helps provide assistance to those in need, but is not focused on returning the individual to the workforce.  Although some effort is made to assist individuals who want to return to the workforce (such as the Ticket to Work program) these efforts are directed to helping individuals who have an impairment find work they can do despite the impairment.

The proposed change, albeit coarse grained, is a different public policy.  The proposed change is geared towards restoring health.  A focus on restoring health opens up a wider range of vocational opportunities for the individual.  Helping those in need is an admirable goal.  However, the individual and society are both better served when the individual is able to return to the workforce.  The individual not only benefits from the inherent dignity of work, but they also have more disposable income which leads to more opportunity for a higher quality of life.  Society benefits from both the cessation of the economic outlay in paying benefits to the individual as well as from the economic activity generated by the individual.  This latter public policy consideration needs more exploration and should be a part of any plan to “save” the system from financial insolvency.

For more information see:

Current Rules

https://www.ssa.gov/OP_Home/cfr20/404/404-1590.htm

Proposed Rule Change

https://www.federalregister.gov/documents/2019/11/18/2019-24700/rules-regarding-the-frequency-and-notice-of-continuing-disability-reviews

It’s Okay to Say Retarded

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Regular readers know that my better half and I were blessed with a special needs child two years ago. Developmentally he is greater than one year delayed despite significant Early Childhood Intervention and private physical, occupational, and speech therapy services. While it’s too soon to do formal IQ testing we understand that his intellectual capability is going to be significantly sub average. In other words, he’s going to be retarded. As a parent of a retarded child it is frustrating to no end when people engage in though policing saying it’s not appropriate to say “retarded.” While they may intend good from their thought policing; there is nothing more damaging that they can do to a child in such a situation.

Criteria for Mental Retardation

The criteria for mental retardation, which is now called Intellectual Disability, has slightly different criteria depending on whether you use the American Psychological Association (APA) DSM-V criteria or the American Association on Intellectual and Developmental Disabilities. Separate from those two organizations, capital punishment jurisprudence and Social Security administrative considerations are significantly different, with Social Security’s administrative criteria likely Unconstitutional, for now.

Since the APA and corresponding DSM-V definition is used more often that is the definition that will be used to show how thought policing is damaging to those who have intellectual impairment. To meet the diagnostic criteria according to DSM-V the individual must have:

  1. Deficits in intellectual functioning—“reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience”—confirmed by clinical evaluation and individualized standard IQ testing (APA, 2013, p. 33);
  2. Deficits in adaptive functioning that significantly hamper conforming to developmental and sociocultural standards for the individual’s independence and ability to meet their social responsibility; and
  3. The onset of these deficits during childhood

While a hard IQ threshold is no longer considered, the general concept of, “functioning two or more standard deviations below the general population” is retained. However, rather than looking at specific skills as was done in DSM-IV, the current criteria looks at “domains.”

Source: National Institute of Health Publication

This is problematic because although IQ isn’t seen as being able to have a bright line indicator of borderline intellectual functioning versus mild mental retardation, the IQ testing instruments are both becoming more sophisticated assessments and also are regularly renormed so that assessment stays current relative to the population. In other words, IQ testing takes increasingly sophisticated looks at the intellectual skills for independent functioning, and also is periodically renormed so it stays current to societal adaptive functioning levels.

In capital punishment jurisprudence it is accepted that commonly used testing instruments have a 5 point margin of error (see Hall v Florida, 572 U.S. 701 (2014)). With the Supreme Court accepting the testing instrument margin of error as the standard states have followed by necessity and that’s become the standard for criminal jurisprudence. This effectively leaves adaptive functioning as the criteria used to determine mental retardation.  As mentioned earlier, Social Security does not recognize this standard and has a much more strict requirement.

Hall is a 5-4 case with Justice Kennedy siding with the Court’s liberal block.  With his retirement, and Social Security disregarding the Supreme Court’s decision and using their own standard, there’s concern that Hall’s days are numbered. As a result, focus has switched from adaptive functioning. Rather than discuss the good of the individual; the focus is driven by capital punishment jurisprudence and what may come to pass. This refocused significant time/energy towards the nexus between causation and adaptive functioning deficits rather than on how to address the deficits.

Borderline Intellectual Functioning

One of the biggest problems with DSM-V and intellectual disabilities is they have eliminated Borderline Intellectual Functioning (BIF) from consideration. Some argue that BIF needs to be reinserted into the DSM as it is a distinct impairment, and that the impairment causes significant difficulties for the afflicted. They are spot on. An individual who is BIF, and has a co-occurring impairment is going to have a significantly more difficult time adapting to the challenge from the co-occurring impairment. However, BIF is also a goal to achieve for those with intellectual impairment.

The concept of BIF was captured in Hall with the Court indicating that IQ is not a bright line and that the testing instrument margin of error can see individuals miscategorized either direction. This means an individual who has 70-74 IQ can be mentally retarded, and an individual with 65-69 IQ can be BIF. The determination comes down to the degree of adaptive functioning. This implicit recognition of BIF in the 65-69 IQ range gives hope to parents, and a goal for the impaired, that with hard work and perseverance the impaired can achieve a degree of adaptive functioning that will lead to some degree of independence or modified independent living and participation in the work force.

With the APA eliminating BIF from consideration and the focus switching to jurisprudence what ifs there’s no strong voice to look out for the good of the impaired. This lack of a strong voice focusing on the good of the impaired has given rise to a vacuum for the good of the individual, and the result is thought police are moving in to fill the void with petty (since I’m keeping it family friendly) arguments such as “R word” and admonishments against usage in any form. Nothing could be more damaging to those with the impairment.

Thought Police Harm the Impaired

Bullying is not acceptable. However, in the vast majority of the cases uses of the word retarded does not occur in a bullying context. Calling something retarded, or an individual a libtard or consevatard is not engaging in bullying towards those who are afflicted with mental retardation. Even in instances where the tard suffix is a childish attempt to bully, it is an attempt to bully on the basis of a different political persuasion rather than at the ones who have the impairment.

The argument the thought police use is based on it being disrespectful/degrading to those who are actually mentally retarded. While there’s some superficial merit to that argument; the harm to the mentally retarded far outweighs any abstract harm to dignity that arises from the use of the word. To paraphrase President Bush, it burdens the afflicted with the harm of low expectations. If the goal is to provide intervention, support, and training to improve the lot of the mentally retarded to BIF; the imposition of low expectations runs counter to the good of the individual, and by extension to society.

However, that’s the lesser of the harms the thought police impart upon the mentally retarded. Not only does thought policing saddle the impaired with the harm of low expectations it also conditions society to believe the afflicted are incapable of exceeding the low expectations. The thought police are, by and large, in the it takes a village camp where individual accomplishment is secondary to community standards.

This opens the door to a myriad of problems that range from Iceland encouraging abortion of Down syndrome babies to the Netherlands legalizing euthanasia for psychological conditions. We very quickly have gone from a nation where abortion was supported under the guise of “safe, legal, and rare” to “abortion on demand without apology.” Virginia debated a bill where abortion during dilation was permissible and infanticide by intentional neglect was considered. Virginia’s state legislature switched from Republican to Democratic hands last week. How long will it be before some iteration of the bill is passed?

Rather than see the mentally retarded as valued members of society with inherent dignity the thought police impose a faux dignity to the point is suits their political agenda. Once that faux dignity is no longer useful the impaired are no longer useful and become expendable. Not exactly expendable, because they still have use as examples of why the liberal agenda on abortion and euthanasia are the “compassionate” choice.

We need to look out for the interest of the mentally retarded because they are not well equipped to look out for their own best interest. Part of that means continuing to push for interventions to improve their adaptive functioning so they can achieve some degree of independence and self sufficiency. Part of that means standing up to the thought police and others who would exploit them to achieve political goals that are not in the best interest of the mentally retarded.

Pushing the Social Security Insolvency Date Back

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Note: Although I practice primarily in Social Security law, none of the following will directly or indirectly benefit me.

The Social Security problem is rapidly reaching a point where a negative impact on the economy will occur. To that end, now is the time to take action before the economy suffers. The facts/figures regarding the health and funding of the Old-Age and Survivors Insurance and Disability Insurance (OASDI) Trust Funds comes from the Social Security Trustees Report.

A few important pieces of data to keep in mind:

1) The OSADI is solvent through 2034. This is not the important date however.
2) The OSADI will begin to redeem Trust Fund Assets from the general treasury in 2019. This is the important date.
3) The amount of the 75 year actuarial deficit for OSADI and Disability (where I practice) is 2.68{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} of payroll tax. Rather than looking at dollars and cents this is a better metric to use since payroll tax is where the trust is funded and where any future changes will take place.
4) The 75 year actuarial deficit is slightly misleading since the deficit rises from present to 2038, then declines slightly to 2050, then begins to rise again until the end of the period. This means that a short term solution that solves the problem 2034-2038 actually solves the problem to 2050. In other words, it’s possible to kick the can down the road if the 2019-2038 problem can be adequately addressed.
5) Payroll tax receipts for 2014 were 775,969 million.

When looking at solving the solution, raising the retirement age again isn’t a good option. The age is already 67 years old for the vast majority of the working population. With full retirement so near the end of life for workers, it’s likely to cause a spike in early retirement filings. Raising the age more defeats the purpose of the program.

Also, if possible, the economic impact of fixing the problem needs to be either 1) as low as possible if involuntary or 2) a voluntary action on the part of workers. Now, you may be asking what good does it do if workers choose to take steps that help Social Security, but harm the economy? Economic prudence by households often hurts the economy. If I decide to pay off debt, that prevents me from spending the money on consumer goods. If I decide to increase my emergency fund from 2 months to the advised 6 months consumer goods spending suffers. Other things such as investing in the stock market have a similar effect, though are partially offset by the increased health of the companies whose stock is purchased.

With that having been said, here are some actionable ideas that Congress can address to prevent the upcoming 2019 economic harm.

1) If an individual claims self employment in support of the earned income credit but had no FICA withholdings have the IRS reduce the earned income credit by the amount of FICA that would have been paid on the self employment and distribute to the appropriate agencies. While some legitimate self employed taxpayers will be hurt, there’s a significant amount of fraud with the EIC. The fraud won’t be eliminated, but some of the fraudulent payments will be recaptured. No option is going to be perfect, but this is a narrowly tailored option.

How much will this capture? No one knows for sure, but let’s use the amount of payments made in error as a proxy. The Treasury Inspector General for Tax Administration states that $11.6 billion and $13.6 billion in improper payments were made. Split the difference and multiply by 12.4{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} and that’s 1.56 billion (or 156 million – a 0.02 increase in payroll tax) a year. It’s penny ante, but it’s a start. Plus is recaptures monies paid out via fraud which is reason enough to take this action.

2) Withhold FICA from unemployment. Although unemployment is considered unearned income it is allowed because of earned income (no prior employment means no eligibility for unemployment.) 43 billion in unemployment was paid in 2012. With a 12.4{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} FICA rate that’s 5 billion. It’s a small amount in the grand scheme of things, but every bit helps. The running total is now 6.56 billion a year. ( 0.08 increase in payroll tax.)

3) Allow individuals whose retirement age has been pushed back to 67 to pay an extra 2{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} in payroll tax to return to age 65 full retirement age. Now we’re cooking with grease. Participation won’t be 100{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}. However, we don’t need to have 100{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} participation since the goal is to a) prevent OSADI from having to redeem from the general treasury and b) cover the shortfall until 2038 which pushes the problem to 2050.

4) For that matter, give the option to workers to pay an additional 3{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} on top of the 2{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} so their full retirement age is now 62 the early retirement age. Sure, this will cause a spike in filings as workers take advantage of the new retirement age. However, by and large this spike will occur in the 2038-2050 period when the trust fund is improving.

Maybe with all of the above we still don’t get the problem solved. We have, however, kicked the can down the road a significant amount. What’s important is delaying the date the trust fund has to start redeeming assets from the general treasury. I don’t know what the payroll tax actuarial deficit value is for 2034. However, the above steps pushes the insolvency date back a significant amount if Social Security can get participation with 3 and 4 above.

Doug Weiskopf: A modest proposal

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Doug Weiskopf

As Congress argues over extending the Bush tax cuts across the board, once again Republicans–especially the Republican leadership in Congress– are proving themselves to be poor politicians, stupidly allowing themselves to be backed into a corner and characterized as “protecting the rich.”   In fact, the Bush tax cuts benefited those in the lower incomes much more than the wealthiest.  But Obama and Congressional Democrats are using this issue to hurt Republican chances in November, and distract the electorate from their abysmal record.  The important issue here is defeating Obama, increasing our majority in the House and gaining control of the Senate.  Then we will be able to radically simplify the tax code and reduce rates for all taxpayers, allowing a free economy to grow, and free workers to earn a good reward for their skills!

To that end, I would like to offer a few suggestions:

Extend the “Bush Tax Cuts,” including the 15{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} rate for dividend and long-term capital gain income, the standard deduction for married couples and the $1,000 child tax credit, for everyone earning less than $379,151, permanently.  This keeps rates low for all but the top bracket, taking that issue off the table for Obama, and encourages Congress to come back next year and begin true tax relief and simplification.

Reduce the threshold for deductible medical expenses to 3{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} of adjusted gross income.  This provides real help in meeting real medical expenses for the middle class, giving the people more power over their own health care, while helping protect the average family from rising expenses.

Restore the 2{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} cut in the Payroll Tax, which is robbing from Social Security, and replace it with an additional permanent Income Tax reduction of 2{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} across the board, and 4{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} for the self-employed.  Allowing Obama to cut payroll taxes was one of the stupidest things we could have done because it robbed even more from the already over-burdened Social Security Trust Fund.  This corrects that mistake, but protects working Americans–including many small business owners– from another tax hike!

Permanently increase the Social Security Payroll Tax Rate for all employees who are not United State citizens by a total of 5{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986},  and Medicare (FICA) Tax rate by 2{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} .  This is a “win/win” idea borrowed from Norm Adams.  It immediately provides increased revenue to Social Security and Medicare, and provides a strong incentive for hiring U. S. citizens.

Begin phasing out the Earned Income Tax Credit by reducing it by 2{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} each year until it is eliminated.  This is another poorly thought out, and misleading “entitlement” that suppresses ambition and underwrites low wages.  It promotes unhealthy dependence on “the government” and should be replaced by better job opportunities.

Doug Weiskopf is the Republican Candidate for Texas House District 143.

 

Is it a Ponzi Scheme?

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I don’t know about the rest of you, but I thought the last two Republican Presidential debates on MSNBC and CNN have produced pretty good political theater, in large part because of the participation of Governor Perry.  Although I may be a little biased, I think he has more than held his own and is, right now, the best candidate among the field (and I am still more than just a little amazed by all of this).  That is not to say that the other candidates would not make better Presidents than our current Commander-In-Chief—they all would—but Perry has impressed me the most so far.

The dust-up in the last debate over the vaccination-mandate fiasco of 2007 was to be expected, for it was one of the biggest blunders of Perry’s tenure as Governor.  To his credit, he has responded to the criticism the only way he should—he has explained why he did it, and acknowledged his mistake.  There will be some who will never forgive him for this blunder and try to decipher corrupt motives from his actions; but, for many others (including those, like me, who often have been skeptical of his leadership over the years), he showed in the last debate that he learned a lesson from his mistake and has grown from the experience—a valuable and, indeed, necessary trait for a leader in the times we face.

But the really interesting debate that has emerged is over Social Security—and what a welcome and instructive debate this has become.  Essentially, three lines of debate have formed:

  1. Governor Perry has framed the debate by calling the current system a “Ponzi scheme” and a “monstrous lie”, by saying it was an improper use of federal authority when it was first enacted, and by committing himself to fixing the system for future beneficiaries;
  2. Mitt Romney has confronted both Perry’s descriptions of the system, and his reflection on its history, as being too provocative, while also committing himself to fixing the system; and
  3. The rest of the candidates have committed to fixing the system one way or another, while trying not to get in the middle of the argument over the wisdom of Perry’s remarks.

So, what is the net outcome of this debate so far?  It is now refreshingly clear that Republicans are united in fixing the Social Security system to make it solvent for future beneficiaries; but, so far, only a few of the candidates are willing to confront and describe the actual problem with the system and give us an indication as to how they would approach fixing the problem.  It is clear that Perry—and probably Cain and Gingrich, too—realize that you can’t fix Social Security by tinkering around the edges.  Instead, you have to be honest with the American people about the problem at the core of the system, and how it needs to be fixed.

With that said, is Perry’s criticism correct?  And, if it is, what should we be seeking as a fix to the system?

To answer the first question, we need to understand how Social Security has been marketed to the voters over the years.  Since its inception, the creators and supporters of the current Social Security system have referred to it as an old-age insurance system, as a public pension system, as a trust account, as a contractual promise to pay out in retirement an amount based on what was contributed during working years, and as a social safety net to protect the elderly from poverty.  Are any of these descriptions correct?  Upon close scrutiny, the answer is “no”.  It is neither insurance, nor a pension, nor a trust account because it is not based on either actuarial, investment, or fiduciary criteria that provides for a return to the taxpayer of what he or she paid into the system plus investment growth.  It is not even a promise to receive what you paid into the system, because the dollars you paid into the system were received by other beneficiaries as you paid your tax, and you will receive payments from other taxpayers when you retire.  Finally, there is no real correlation between Social Security payments and poverty prevention—Warren Buffet gets the same benefit that your Uncle Fred and Aunt Martha receive, who, in turn, get the same benefit the poorest of our elderly receive.

So, what is this system, really?  You and I are asked to pay into a system and are told periodically that we will receive an amount of money at a certain age based on these payments.  Our future payments are not derived from the amount we paid into the system plus investment growth, but rather from new payments into the system from other people.  The fact and amount of our future payments are based on whether new people continue to pay into the system, and are dictated by the decisions of the person(s) controlling the system—not by the market.  These are characteristics common to illegal Pyramid and Ponzi schemes.  The only differences are that

  1. the Social Security system is not only legal, participation is mandatory; and
  2. payments can continue, even if new taxpayers don’t materialize, because the federal government can print money to cover the shortfall.

That means, that, unlike a classic Pyramid or Ponzi scheme, payments can continue with freshly printed dollars—though the value of those dollars will plummet as more are printed.  Eventually, though, you’ll arrive at the same result:  if you rely on the printing press at the Mint to save the system, you really won’t get back the money you were promised (just like how a Pyramid or Ponzi scheme ends—though a little less abruptly).

Quite frankly, if you measure the promises surrounding Social Security against its reality, Governor Perry’s descriptions are fairly accurate—it’s like a Ponzi scheme, and the marketing of Social Security has been a “monstrous lie”.

Well, then…what’s the answer to the second question—what should we be seeking as a fix to the system?  As all of the Republican candidates have acknowledged, the promise of this system, and its protection for many elderly Americans, has existed too long with too much public reliance to end it now, if ever.  But I think it would be immoral to continue lying to each other about this system and to not address and fix its faults.  Over the last 30 years there have been a lot of good ideas floated and even practiced—as in the case of Chile (as Herman Cain often notes) and a handful of other nations in Eastern Europe, including Russia—so we don’t have to come up with answers out of thin air.  Whatever fix we adopt should incorporate most, if not all, of the following basic principles:

  1. A cut-off age for beneficiaries should be set above which the system will continue as presently structured, and below which fundamental changes will be made;
  2. The age at which benefits are to be paid eventually must be re-set to an older age, and then indexed to the life expectancy of the population, so that both the age at which benefits are received and the average projected period for receiving benefits can be affordably subsidized by the working population;
  3. Incentives should be created for allowing older Americans to continue to contribute to the economy through paid or volunteer work, after they have reached a point when they physically may not be able to continue working in their original professions but prior to their receipt of benefits;
  4. The system should be re-structured so that younger workers are able to split their Social Security tax payments between support for a safety net for means-tested elderly and the younger workers’ own personal retirement accounts; and
  5. Eventually, the payment of benefits from a safety net that is fully supported by current tax dollars should be based on means-testing, so that those who have the means to support their own retirements through their private and public accounts do not receive direct transfer payments from the government; such direct transfer payments should be received only by those who are truly in need.

These principles are neither controversial, nor hard to implement, but for the vested interests and expectations surrounding the politics of Social Security.  Those vested interests and expectations will only be broken through candor coupled with new commitments.  To the extent Governor Perry has forced the Republican field of 2012 candidates to face and debate this issue, he has already met an important test for the leadership we will need over the next few years.