Our office’s phones are going to explode next week. We are going to get dozens – perhaps hundreds – of calls from claimants wanting to know how the shutdown will affect the processing of their disability claims. Former clients will call to see how the Great Government Shutdown of 2013 will affect their benefit payments. Social Security’s Deputy Commissioner for Budget, Finance, and Management actually addressed this issue in a letter to the Director of The Office of Management and Budget dated September 25, 2013.
The letter lays out the contingency plan of the Social Security Administration (SSA) to continue activities during a potential lapse in Federal appropriations and the resulting partial shutdown of agency operations. SSA’s 2013 contingency plan is consistent with the plan it submitted to the OMB in December 2011.
During a lapse in appropriations, Social Security must cease all activities for which its annual funding has expired, unless an exception to the Antideficiency Act applies. Three exceptions apply to the SSA’s work: the wind-down activities exception, the protection of life and property exception, and the Necessary Implication exception. With respect to the wind-down exception, “[F]ederal officers [may] incur those minimal obligations [during a lapse in appropriations] necessary to closing their agencies.” Federal agencies may obligate funds during a lapse under the protection of life and property exception by showing a “reasonable necessity” of the funded activity to ensure the safety of human life or protection of property. The Necessary Implication exception allows a limited number of Government functions funded through annual appropriations to continue despite a lapse in their appropriations because the lawful continuation of other activities necessarily implies that these functions continue as well.
In 1995, the Department of Justice, Office of Legal Counsel (OLC), issued a memorandum specifically noting that the activities necessary for disbursing Social Security benefits that “operate under indefinite appropriations” are examples of activities permitted by necessary implication.
Further, the 1995 OLC memorandum extended the Necessary Implication exception to those functions performed by one agency necessary to support the funded functions of another agency.
Funding for the programs under Title II (Social Security Disability Insurance) and Title XVI (Supplemental Security Income) of the Social Security Act will continue, even in the event of a lapse in appropriations. Title II benefits are funded indefinitely through trust funds. Title XVI payments are funded through general revenues. However, the current Continuing Resolution (CR) funds those payments through the first quarter of Fiscal Year 2014. Because there is funding to pay these benefits, the Necessary Implication exception allows Social Security to perform those activities needed to ensure that benefits are accurately and timely paid, despite a lapse in appropriations.
Social Security’s continuing functions related to making accurate payments during a lapse in appropriations is consistent with its December 2011 plan and is legally justified under the 1981 Opinion that permits it to “continue the administration of the program[s] to the extent of the remaining benefit funding.”
SSA Will Only Continue “Critical Functions”
The below charts detail the critical functions SSA would continue during a lapse in annual appropriations. Under the Necessary Implication exception, Social Security will except only those employees critical to its direct-service operations and those employees whose work and oversight are critical to support those operations.
The Processing of Claims
Specifically, with respect to Social Security’s adjudication of claims for benefits, it will continue limited service in its Office of Disability Adjudication and Review (ODAR) hearing offices. SSA’s approach in ODAR could evolve over time depending on the length of the shutdown. Social Security will also retain a limited number of SSA employees and necessary law enforcement agents from its Office of the Inspector General under the protection of life and property exception. As the below charts note, SSA will allow employees to conduct orderly wind-down activities for no more than four hours on the first day of a lapse in appropriations.
If the SSA has a lapse in appropriations, it will encourage the Disability Determination Services (DDSs), which are state entities, to continue limited services during a lapse under the Necessary Implication exception with the understanding that SSA will reimburse the DDSs for their work once it receives funding. However, because DDS employees are State employees, Social Security cannot direct the States to except or furlough their employees during a lapse. Each State will have to determine whether it can maintain limited DDS operations and pay its employees during a lapse.
Social Security has indicated it is committed to ensuring that, consistent with the constraints of a partial shutdown, it conforms with applicable laws, regulations, and guidance, yet continue to serve the American people in these difficult times.
SSA CONTINGENCY PLAN – 2013
Status of Service Activities During a Funding Lapse
To promote service to the public and fiscal responsibility, Social Security will implement the following plans:
Operations Field Offices (FO)
Continued FO Activities
- Application for benefits (including appointments; limited data exchanges and record corrections, including earnings, for mandatory benefits)
- Request for appeals (reconsiderations, hearings, Appeals Council)
- Normal post-entitlement actions (change of address, Supplemental Security Income living arrangement changes, non-citizen verification/changes, direct deposit, death inputs, etc.)
- Non-receipts and critical payments
- Payee changes
- Critical information technology (IT) support for daily processing activities
Discontinued FO Activities
- Original and replacement Social Security cards
- Benefit verifications
- Earnings record corrections and updates
- Payee accountings
- Completing program integrity workloads (redeterminations, continuing disability reviews (CDRs), overpayments)
- Prisoner activities
- Requests from third parties for queries
- Request for Numi-lites (i.e., Social Security Number verifications)
- Freedom of Information Act (FOIA) requests
- IT enhancement activities, public relations, and training
- Replacement Medicare cards
State Disability Determination Services (DDS)
Continued DDS Activities
- Initial claims, including terminally ill, compassionate allowances, quick disability determinations, dire need, and wounded warriors
- Critical IT support for daily processing activities
Discontinued DDS Activities
- Continuing Disability Reviews, or CDRs
- Assistance requests for hearings
- End-of-line quality assurance reviews, IT enhancements activities, public relations, and training
Offices of Disability and Adjudicative Review (ODAR)
Continued ODAR Activities
- Hearing cases
- Deciding cases
Discontinued ODAR Activities
- Screening cases for On-the-Record decisions
- Scheduling hearings
- Hearings appeals
- Docketing and tracking new cases
- Drafting relevant notices for claimants
- Preparing electronic records for claimants and representatives
- Identifying missing evidence and developing the record
- Exhibiting case files for Administrative Law Judges
- Quality assurance review activities
- Adding new medical and vocational experts to blanket purchase agreements
- Processing bias complaints from claimants and representatives
- Responding to congressional inquiries regarding support for casework on constituent hearings and appeals
- Conducting all activities dependent on Operations support, including enrollment of appointed representatives for eFolder access
- Responding to FOIA requests and public inquiries
- Providing training and IT support or enhancements for hearing offices