Threats to Social Security Disability: Report from D.C. NOSSCR Conference Assembly

The political climate in Washington made Lisa Ekman, director of government affairs for the National Organization of Social Security Claimants’ Representatives (NOSSCR), arguably the most anticipated speaker at the recent national conference for Social Security Disability attorneys. The room became hushed when she began discussing what disability law firms should expect and how they should respond now that the Trump administration has put Social Security Disability benefits in its budget-cutting crosshairs.

Setting the mood, Ms. Ekman opened by stating that people with disabilities, as well as the attorneys who represent them, “face one of the most challenging environments…since the 1980s.”

“We are at a time where practically one claimant is dying every hour waiting for their due process rights,” she said.

And yet Congress recently hit the Social Security Administration with a $60 million budget cut. Continuing resolutions for the first part of FY17 had allocated $150 million specifically for reducing the backlog in disability hearings, but this cut will reduce the final FY17 budget to $90 million.

Of course, getting a disability claimant’s hearing scheduled is only one step in the infamously long process. Currently, about 60,000 decisions are waiting to be written. The reason: While the SSA managed to hire more Administrative Law Judges (ALJs), it has not increased support staff.

That said, Ms. Ekman noted, “In this environment, keeping $90 million was good.”

The Trump Office of Management and Budget proposed huge cuts for numerous other agencies, so while the effort to properly fund Social Security is “not doing great, it could be doing worse, compared to other agencies.”

“The president’s proposal is just a proposal,” Ms. Ekman noted. “Some of it is DOA with Congress.”

She stressed how NOSSCR works with a strong coalition of other groups to stand up for the rights of people with disabilities. That alliance has proven effective overall in recent years.

But the latest budget proposal contains many additional changes — not just budget cuts — that would be harmful to people with disabilities if adopted, so this is not a time to rest easy.

Trump administration proposals harmful to disability claimants

Among the Trump administration proposals of concern for disability claimants:

• Creating an “expert panel” to recommend changes to the SSI and SSDI programs, with the goal of a 5% reduction in benefits by 2027. To achieve this, proposals include: requiring claimants to receive specific medical treatments, requiring them to prove they looked for work and limiting the amount of time they can receive benefits.
• Requiring medical treatment if a person receiving benefits has certain medical conditions — but no provision is being discussed to pay for that treatment.
• Reducing retroactive benefits to six months instead of the current 12 months, before the protected filing date. This takes away almost $10 billion from people with disabilities over the next several years. Ironically, the idea could backfire in terms of the end goals. “A big focus in the president’s budget is on getting people to work.” Reducing the retroactive benefits could encourage people to stop working sooner, said Ms. Ekman.
• Establishing a one-year probationary period for new ALJs. While that might sound reasonable for any new employee, even an ALJ, it all depends on what happens during that period. Will there be monitoring and pressure for lower approval rates? If so, it would be “a challenge to judicial independence,” she noted.

Ms. Ekman promised that “NOSSCR will be watching these proposals very carefully and opposing them.”

The good news is that these proposals require 60 votes to pass. At present, the votes are just not there. But the worst of the administration proposals may make lesser, yet still harmful, proposals seem less nasty and more reasonable by comparison.

“We are very concerned about the tone that is being set,” Ms. Ekman said.

Making matters worse, she said, is that some of this attitude is “being supported by the media stories,” such as recent Washington Post stories. (In subsequent remarks, NOSSCR Executive Director Barbara Silverstone encouraged members of the audience to author local op-eds to counter this misinformation.)

Moreover, while many of these items may not make it into a congressional joint budget resolution, which requires 60 votes to pass, a congressional reconciliation process could adopt a goal of finding a certain amount of savings.

Those votes on reconciliation proposals are not subject to filibusters, and they only require 50 votes plus the support of the vice president. In other words, when things reach this point, the Republican majority no longer needs Democratic support in Congress.

“I don’t think anyone knows exactly what will come next…but [they have a] very short time to do it.”

Congress has until Oct. 1 to come to a budget agreement — including raising the debt ceiling, or the government will shut down.

While a shutdown negatively impacts many people, including Social Security Disability claimants and attorneys, both President Trump and Budget Director Mick Mulvaney have spoken “in positive terms” about the idea of a government shutdown, Ms. Ekman said.

NOSSCR urges you to meet congressional representatives in August

“A lot of make-or-break things have to happen pretty quickly,” but this Congress is not functioning very smoothly, according to Ms. Ekman. That understatement prompted a few audience chuckles.

She identified a moment of opportunity coming soon: Members of Congress spend August at home, making that a great time to tell them how important these issues are to their constituents.

NOSSCR can help supply you with statistics and data, such as how much money goes into each congressional district, or what a 5% cut to Social Security would mean.

“People are letting legislators know what is acceptable and what is not.” Disability lawyers and even their clients need to do the same.

Ms. Ekman noted that NOSSCR’s advocacy day on Capitol Hill — held during the conference — was record breaking in its level of participation.

“Your activity, your input, makes a difference…. You can help us help you help your clients.”

Those of you who run a disability law firm “are small-business people, helping those communities where you employ people. You pay salaries in those districts…. We really do need your help.”

Social Security complaints are among the most common complaints district congressional offices typically receive. So you can also advance your advocacy by making yourself a resource to your local congressional offices, Ms. Ekman urged.

NOSSCR urges you to support the NOSSCR PAC

Another avenue for making a difference in Social Security Disability policy is supporting the NOSSCR Political Action Committee, said David Goch, lobbyist for the PAC, as he addressed the conference general session.

“This is not a partisan issue,” Mr. Goch said. “But there are forces…that are working against us.”

The NOSSCR PAC is about developing relationships with legislators, policymakers and other leaders. “If they don’t know who you are, if they don’t trust you, if you don’t have some relationship, showing up at the 11th hour, well, good luck.”

Among the 700 conference attendees, only about 10% have given to the PAC, he said.

For more information on the NOSSCR PAC, please contact NOSSCR at nosscr@nosscr.org or (201) 567-4228.

Collecting delayed Social Security attorney fees

In discussing other challenges with Social Security, NOSSCR Executive Director Barbara Silverstone noted that collecting attorney fees “continues to be a problem.”

Social Security will help attorneys by investigating specific instances of legal fees failing to get processed. But, she noted that it will only consider investigating instances in which nine months have passed since the awards notice.

“That is what they consider a delay worth looking into,” she said.

Before requesting assistance with a fee payment, you should be sure that the agency is not waiting on information from you. If you need help collecting legal fees, NOSSCR is willing to point you in the right direction. To date, they’ve helped secure over $100,000 in fees for claimant representatives.

An SSA “fee expert” will speak at the September NOSSCR Conference in Phoenix, Ms. Silverstone announced.

NOSSCR Members recognized for pro bono work for Eric Conn former clients

You’ve likely read about the fraud case against Kentucky disability lawyer Eric Conn, who pleaded guilty and then fled house arrest while awaiting sentencing.

In the aftermath of his misdeeds, the government said that all of Conn’s former clients who were awarded disability benefits had to undergo reviews to see if they still deserved their benefits.

Helping those citizens and that community was a “massive operation,” said NOSSCR President Daniel Emery. (Mr. Emery is a client of Firmidable).

Many had not saved their medical records, never dreaming they would later be asked to prove their eligibility a second time.

Mr. Emery asked for everyone in the audience to stand if they worked pro bono representing former Conn clients or training local attorneys.

Over 50 stood.

Efforts like the Eric Conn pro bono work — and trying to fight harmful proposals by Congress and the Trump administration — demonstrate the nationwide commitment disability attorneys make to help the less fortunate. Please do your part to help.

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