Another looming crisis: Social Security Disability Insurance

In May, over a thousand West Virginians and Kentuckians went to their mailbox and found letters telling them their disability checks would soon be cut off. 

Why? Because a government watchdog group had reason to believe that yet another lawyer and/or doctor was involved in Social Security fraud. 

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This case of alleged disability fraud involves accusations of a small group of doctors with a rotating cookie-cutter diagnosis, attorneys who facilitated false forms and administrative law judges who overturned previous decisions with no hearing. 

It would be shocking except that earlier this year, a doctor and 39 individuals in Puerto Rico were arrested for fraud, accused of nearly the same thing. 

The Puerto Rican fraud scheme cost the Social Security Disability Insurance (SSDI) program more than $100 million and interrupted benefits for many disabled people. If the charges prove true, the West Virginia-Kentucky case will cost the program even more money and heartache.

The SSDI program was designed as a safety net to protect the most vulnerable in our society, those who cannot work due to a disability. 

However, over time, the program has been fraught with inaccuracies and fraud. 

In 2012, a Senate Homeland Security and Governmental Affairs Committee report titled “Social Security Disability Programs: Improving the Quality of Benefit Award Decisions” concluded that a shocking one-quarter of all disability insurance claim decisions were flawed, improperly addressing “insufficient, contradictory, and incomplete evidence, thus increasing the chances of rewarding nondisabled persons.”

The statutory requirement to qualify for disability insurance is that a person cannot fulfill any job in the economy. When a person qualifies for disability insurance benefits, he or she is eligible for a modest monthly check (around $1,000). After two years on the SSDI program, recipients become eligible for Medicare benefits. As the economy recently stagnated, and as Americans aged, more people turned to SSDI for help.

The Social Security Disability Insurance Trust Fund is sustained by payroll taxes on each check. When the trust fund goes insolvent next year, 14 million disabled Americans will face a drastic cut to benefits of almost 20 percent or the fund will have to be replenished with higher taxes. 

Some have suggested to fix the insolvency that Congress should only shift funds from Social Security or the Old-Age and Survivors Insurance Trust Fund, which would reduce those programs’ solvency as well. Clearly, shifting funds does not address the root of the problem. 

It is time for a major overhaul of the disability system and a renewed focus on the disabled. Before the SSDI program goes insolvent in 2016, there are things that Congress and the Social Security Administration can do to protect the program for those who rely on it and the taxpayers who fund it.

A step in the right direction would include preventing individuals from receiving checks for the earned income tax credit or unemployment benefits and Social Security disability in the same year. By definition, disability insurance is reserved for those who cannot work, and unemployment insurance and the earned income tax credit are for those who can work or are already working.

In the SSDI administrative process and first appeal, one set of criteria is used for determining disability. But, when the individual appeals to an administrative law judge, a different set of criteria could be used to determine disability.

It is basic common sense that the same disability standard should apply throughout the long appeals process, a process that currently has more appeals than death row. The seemingly never-ending appeals process drives up costs and gives each layer of the process a place to push off final responsibility.

The entire adjudication process can be streamlined to provide an expedient and accurate determination for the applicant. The people hurt the most are the truly disabled who wait, in some cases for years, for benefits they need.

The “vocational grid” that defines which jobs are available in America has not been updated since the mid 1970s. Obviously, a few things have changed in the American economy since the ’70s, but the definition of employment used for disability has not changed. 

Many of these are potentially productive citizens who may have an additional challenge to employment, but they are not incapable of work.

 Currently, disability attorneys are paid by Social Security offices around the country, not by the individuals who hire them. Disability attorneys take a portion of the disabled person’s check from them if they win the case, but the federal government is tasked to extract that fee from each individual and become the third party to every disability legal contract.

Why not allow the person who hired the attorney and signed the contract to also pay the bill? 

The incentive for the attorneys is to delay the case as long as possible, so their payment can extract the maximum amount from the disabled person’s check at the end. 

No law or regulation prevents a lawyer acting on behalf of a claimant from delaying a hearing by introducing new evidence moments before the hearing begins, effectively forcing the judge to put off the hearing. This prevents the claimant from getting benefits to which he or she may be entitled, but it ensures a bigger paycheck for the lawyer. That’s not how it works in a regular court, and that’s not how it should work for SSDI.

There are several legislative proposals being discussed in Washington to address the risk for fraud and insolvency. Senate Finance Committee Chairman Orrin HatchOrrin HatchSenators already eyeing changes to 9/11 bill after veto override Internet companies dominate tech lobbying Senate panel approves pension rescue for coal miners MORE (R-Utah) and I have introduced the Improving the Integrity of Disability Evidence Act (S. 1198), a bill to ensure that state Social Security administrators only use medical evidence from reputable sources when making a disability determination. 

If the available medical evidence is insufficient, this bill would require the Social Security Administration to pay for a consultative exam to provide additional medical evidence. More comprehensive legislative reform is also in the works. 

Washington can be notorious for waiting until the last minute or kicking the can down the road on national problems. 

For the sake of the millions of truly disabled Americans relying on this program, as well as all taxpayers, neither should be an option. There are things that the Social Security Administration can do alone, and reforms that Congress can make with legislation, to prevent large, sudden benefit cuts to disabled recipients. 

What happened in West Virginia and Kentucky is a warning light on the dashboard. Social Security disability insurance is a looming crisis. The time for reform is now.

Lankford is Oklahoma’s junior senator, serving since 2015. He sits on the Appropriations, the Homeland Security and Governmental Affairs, the Indian Affairs and the Intelligence committees.