Carl N. Brown
Member
never mind
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SSA proposed NICS rule
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danez71
Member
Look at #3 below.
I very well could be wrong but, #3 seems to indicate that currently you're right but that this new proposal specifically gives them a way to appeal.
If I'm reading that correctly, that is a huge change for the better as is limiting it to the mentally deficient as a primary disability AND that because of it, have been appointed a representative payee.
gc70
Member
Ryanxia said:
I believe you are referring to the suspension of appeals of erroneous NICS denials; that is a separate issue involving a different agency from this proposed rule.
There is currently a method of appeals spelled out for regular NICS denials but that is currently being ignored. Blanket denying people (even if it's a different arm of the same government) is not a good idea. I say due process, but that's just my opinion.
gc70 - yes it is but say you get 'blacklisted', appeal and the NICS still denies you, there is no way to appeal that.
Remember that the criteria for being prohibited on the basis on one's mental or emotional conditions are already set out at 18 USC 922(g)(4):Carl N. Brown said:
So to be prohibited, one must meet the criteria as determined "by a court, board, commission, or other lawful authority." Further the determination would, as a general proposition, need to satisfy due process.
So the first question would be whether the process indeed will identify a subset of persons who meet the criteria? The second questions are (1) what are the applicable standards for due process in this context (based on applicable legal authority); and (2) does the process satisfy those standards?
LemmyCaution
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I guess my first question would be whether or not 'due process' includes an adversarial hearing prior to submission of an individual's data to NICS.
And the second question would be whether or not SSA is legitimately a 'lawful authority' for the purposes of 27 CFR 478.11.
Anyone have any citation of precedent to answer these questions?
I don't see how characterizing the SSA as a legal authority here could reasonably be challenged.
The SSA has the legal authority to administer the various programs under the Social Security umbrella. As a necessary part of such administration it must necessarily determine the existence or non-existence of various facts needed to decide if someone is eligible for benefits, what benefits, and how those benefits, if any, would be paid (subject to an applicant's right to appeal through an established process any adverse determination).
It is authorized by various statutes to do such, and to adopt regulations to assist in performing those statutorily authorized functions.
The SSA will need, from time-to-time, to decide, in connection with its statutorily authorized administrative functions to decide if someone:
Regulatory agencies basically have two types of functions: quasi-legislative and quasi-judicial. In their quasi-legislative role, they adopt regulations which have the force of law and have broad applicability. Agencies adopt regulations as authorized by the legislature.
Regulatory agencies also perform quasi-judicial functions. These functions include such things as issuing licenses, authorizing or declining to authorize acts of entities licensed by them or subject to their jurisdiction, and determining entitlements under programs administered by the agency. Examples of quasi-judicial regulatory agency action include: a medical board revoking a physician's license for a breach of professional obligations; a department of insurance issuing a company a license to operate an HMO; or the SSA determining the an applicant is entitled to certain benefits upon certain terms.
These are quasi-judicial because they involve determining the facts of a particular matter, identifying and interpreting the applicable law and making a decision by applying the law to the facts. In most cases, an adverse quasi-judicial act of a regulatory agency is subject to multiple levels of appeal. For example, the physician unhappy about losing his license to practice medicine usually first has a right to an administrative hearing conducted by the agency. If he's still unhappy, he can seek judicial review.
First, provide documentation to support those statistics.heyjoe said:
Second, is that for all determinations in the aggregate? What is the SSA's "batting average" on representative payee decisions -- the sorts of decisions at issue here?
Third, if that is the case, how would you use those statistics to frame a comment on the proposed regulation to the effect that the regulation is inappropriate as proposed.
https://www.ssa.gov/policy/docs/statcomps/di_asr/2011/sect04.pdf
Approval at all levels – 54.8%. This is the total allowance rates, at all adjudicative levels (initial application through Appeals Council).
Initial Approval – 36.3%. This is the percentage approved from the initial application.
Reconsideration Approval – 8.1%. This is the percentage approved at the reconsideration stage.
Hearing Level and above Approval – 76.1%. this is the percentage of cases approved at hearings before administrative law judges, and at the Social Security Appeals Council.
It appears that I was incorrect. The actual rate for that year(2010- the most recent year I could find SSA statistics) was a 76.1% reversal of initial administrative decisions which were appealed. This does not include decisions further appealed to federal court. 47% of cases appealed to Federal Court were remanded back to the ALJ level. 4% were approved outright.
I have not been able to find statistics on how many representative payee decisions are appealed nor their success rate.
How to frame the comment on the proposed regulation is something i have not had the time to do yet.
Approval at all levels – 54.8%. This is the total allowance rates, at all adjudicative levels (initial application through Appeals Council).
Initial Approval – 36.3%. This is the percentage approved from the initial application.
Reconsideration Approval – 8.1%. This is the percentage approved at the reconsideration stage.
Hearing Level and above Approval – 76.1%. this is the percentage of cases approved at hearings before administrative law judges, and at the Social Security Appeals Council.
It appears that I was incorrect. The actual rate for that year(2010- the most recent year I could find SSA statistics) was a 76.1% reversal of initial administrative decisions which were appealed. This does not include decisions further appealed to federal court. 47% of cases appealed to Federal Court were remanded back to the ALJ level. 4% were approved outright.
I have not been able to find statistics on how many representative payee decisions are appealed nor their success rate.
How to frame the comment on the proposed regulation is something i have not had the time to do yet.
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Those are overall SSI numbers. The discussion here is about mental health incapacitation where the person seeking payment, or more likely an agent of the person, is actively campaigning for SSI benefits because of his/her incapacitation. Appeals will be to get that rating not the other way around.
Frank asked me to document those statistics and I replied with the documentation i had. The second part of what he asked for the statistics for reversal of representative payee decisions, i have not been able to find as of this time.
Carl N. Brown
Member
A huge reversal rate on SSDI denials does not surprise me. I have had relatives who went through the application for Social Security Disability when they were plainly disabled and unable to work. It works like Sullivan Act application for New York City carry permit: first application is routinely denied to the majority of applicants regardless of merit, next you hire a lawyer who appeals your case through the system, finally you are approved on the same facts presented in the original application. These are are systems designed to weed out frivolous applications and I suspect they want you to give up.
The false denial (approval on appeal) rates undermine my faith in the fairness of any huge bureaucracy. I am 68 years old and the fact that a blatantly anti-gun administration wants to empower executive branch SSA* to declare Social Security recipients GCA prohibited persons to NICS concerns me greatly, no matter how narrowly they claim to tailor the definition of who is a prohibited person.
We here agree that the mentally incompetent should not access or use guns (or cars or aircraft or scissors). Also I know that gun prohibitionists believe that we all should be prohibited persons. I hope the SSA sticks to the Five Factors of their initial proposal. But I don't trust government bureaucracy and I believe authority should be questioned and should be required to give reasoned answers. (Maybe that's from Mom and Dad taking me to the drive-in the 1950s to see "1984" scaring me about Big Brother.) I think skepticism drives the reaction to this SSA proposal.
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* Most GCA prohibited person status is determined either by the criminal justice system or by formal adjudication involving the courts. Social Security Administration is an independent agency in the executive branch of the federal government, formerly part of the Presidential cabinet-level Department of Health, Education and Welfare.
The false denial (approval on appeal) rates undermine my faith in the fairness of any huge bureaucracy. I am 68 years old and the fact that a blatantly anti-gun administration wants to empower executive branch SSA* to declare Social Security recipients GCA prohibited persons to NICS concerns me greatly, no matter how narrowly they claim to tailor the definition of who is a prohibited person.
We here agree that the mentally incompetent should not access or use guns (or cars or aircraft or scissors). Also I know that gun prohibitionists believe that we all should be prohibited persons. I hope the SSA sticks to the Five Factors of their initial proposal. But I don't trust government bureaucracy and I believe authority should be questioned and should be required to give reasoned answers. (Maybe that's from Mom and Dad taking me to the drive-in the 1950s to see "1984" scaring me about Big Brother.) I think skepticism drives the reaction to this SSA proposal.
_________________
* Most GCA prohibited person status is determined either by the criminal justice system or by formal adjudication involving the courts. Social Security Administration is an independent agency in the executive branch of the federal government, formerly part of the Presidential cabinet-level Department of Health, Education and Welfare.
danez71
Member
Update - This was just overturned by a 235-180 vote.
herrwalther
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I just had an argument with someone on Facebook over this. Felt like beating my head against the wall, would have been less painful. People truly do not understand the issue with giving a government organization free reign to deny millions of people their 2nd Amendment rights without due process.
RPRNY
Member
the CRA passed the House. Still needs to pass the Senate. With Sessions confirmed, there are 51 Republicans. Some of them are squishy. This went almost entirely on party lines in the House. If Collins and some of the other weak sisters in the Senate squiff, does anyone whether there are any Dems that will back it: Manchin? Donnelly? Heitkamp?
Phaedrus/69
Member
I agree, but remember that lots of folks in both parties still want to deny 2nd Amendment rights to persons on the No-Fly List, too. That really troubles me since no one will reveal what gets you onto the list and there's no viable process to be removed from it- there's no due process at all. This is a great start, don't get me wrong, but I hope the latter is addressed as well.
Kaeto
Member
I must have been in the 38%. I got my disability approved on the first application with no lawyers involved.
Cannibul
Member
When I had to leave employment with the Postal Service I applied for Disability Retirement. Part of that process is to apply for Social Security Disability.
I was approved for SSDI in 14 days with no exam. They received my VA medical records and approved me the next day. I'm guessing that the 10,000 pages of medical records for the previous 10 years showed that I was broken.
The facts of the matter are that of the applications that are turned down 50% are from people who in no way qualify. 25% are incomplete or illegible, and 25% are questionable.
You're one of the lucky ones.
My wife went through two rounds for SSDI before it was finally approved on the third appeal. She has a buttload of disabling physical conditions.
Her son however, got it first time at bat. He had severe stomach damage due to prolonged drug use.
Go figure.
lemaymiami
Member
My son, medically retired from the Coast Guard at age 29 was quickly picked up by Social Security - but to this day (since last May) he's still waiting for a thing from the VA... and yes, the Wounded Warrior program is in his corner.... This whole bureaucracy thing is such a crapshoot that I'm certain there are those who sail through the system - as well as injustices worse than my son has suffered to date... To state it clearly, he was medically retired last May and to date - still have not even gotten a rating from the VA....
I'll watch this closely and hope the current folks in Washington make some inroads into these kinds of bureaucratic nightmares...
I'll watch this closely and hope the current folks in Washington make some inroads into these kinds of bureaucratic nightmares...
Cannibul
Member
The VA takes their time. However the pay clock starts ticking when you file. I received over $70,000 of back pay in 18 months. One claim took almost two years, the second was for TDIU and an increase was denied in six months, I filed for a reconsideration which took just under a year.
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