[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6532 Introduced in House (IH)]
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115th CONGRESS
2d Session
H. R. 6532
To amend title II of the Social Security Act to update and improve
eligibility criteria for the Social Security Disability Program, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 25, 2018
Mr. Rokita (for himself and Mr. Webster of Florida) introduced the
following bill; which was referred to the Committee on Ways and Means,
and in addition to the Committee on Oversight and Government Reform,
for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of
the committee concerned
_______________________________________________________________________
A BILL
To amend title II of the Social Security Act to update and improve
eligibility criteria for the Social Security Disability Program, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Making DI Work For All Americans Act
of 2018''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--ADMINISTRATIVE CHANGES
Sec. 101. Strengthening the administrative law judge quality review
process.
Sec. 102. Applying judicial code of conduct to administrative law
judges.
Sec. 103. Compensation for claimant representatives.
Sec. 104. Minimum monthly withholding to recover overpayments.
Sec. 105. Disqualification on receipt of disability insurance benefits
in a month for which unemployment
compensation is received.
Sec. 106. Elimination of reconsideration review application stages.
Sec. 107. Report on hiring new administrative law judges and staff.
TITLE II--ELIGIBILITY
Sec. 201. Updating of medical-vocational guidelines.
Sec. 202. Review of social media activity.
Sec. 203. Updating data on work which exists in national economy.
TITLE III--CONTINUING DISABILITY REVIEWS
Sec. 301. Study on impact of medical review standard.
Sec. 302. Additional training relating to MIRS exceptions.
Sec. 303. Increased frequency of continuing disability reviews.
Sec. 304. Communication relating to termination of benefits.
Sec. 305. Communication relating to reporting requirements.
TITLE IV--BENEFITS
Sec. 401. Establishment of annual poverty guideline based disability
insurance benefits.
Sec. 402. Retroactive payment of benefits.
Sec. 403. Inclusion of unearned income in determination of substantial
gainful activity.
TITLE I--ADMINISTRATIVE CHANGES
SEC. 101. STRENGTHENING THE ADMINISTRATIVE LAW JUDGE QUALITY REVIEW
PROCESS.
(a) Review.--Not later than 1 year after the date of enactment of
this Act and annually thereafter, the Division of Quality of the Office
of Appellate Operations of the Social Security Administration shall
conduct a review of a sample of determinations that individuals are
entitled to disability insurance benefits by outlier administrative law
judges and identify any determinations that are not supported by the
evidence.
(b) Report.--Not later than December 1 of each year in which a
review described in subsection (a) is conducted, the Division of
Quality Review of the Office of Appellate Operations of the Social
Security Administration shall submit a report containing the results of
such review, including all determinations that were found to be
unsupported by the evidence, together with any recommendations for
administrative action or proposed legislation that the Division
determines appropriate, to--
(1) the Inspector General of the Social Security
Administration;
(2) the Commissioner of the Social Security Administration;
(3) the Committees on Ways and Means and Oversight and
Government Reform of the House of Representatives; and
(4) the Committees on Finance and Homeland Security and
Governmental Affairs of the Senate.
(c) Definition of Outlier Administrative Law Judge.--For purposes
of this section, the term ``outlier administrative law judge'' means an
administrative law judge within the Office of Disability Adjudication
and Review of the Social Security Administration who, in a given year--
(1) determines that the applicant is entitled to disability
insurance benefits more often than 90 percent of administrative
law judges making determinations under this title; or
(2) issues more decisions than 90 percent of administrative
law judges making determinations under this title.
SEC. 102. APPLYING JUDICIAL CODE OF CONDUCT TO ADMINISTRATIVE LAW
JUDGES.
(a) In General.--Section 3105 of title 5, United States Code, is
amended--
(1) by striking ``Each agency'' and inserting
``(a) Each agency''; and
(2) by adding at the end the following:
``(b) The Code of Conduct for United States Judges adopted by the
Judicial Conference of the United States shall apply to administrative
law judges appointed under this section.
``(c) If, in applying a standard of conduct to an administrative
law judge appointed under this section, there is a conflict between the
Code of Conduct for United States Judges and any other law or
regulation, the stricter standard of conduct shall apply.
``(d) Pursuant to section 7301, the President may issue such
regulations as may be necessary to carry out subsections (b) and
(c).''.
(b) Limitation on Regulatory Authority.--Section 1305 of title 5,
United States Code, is amended by striking ``3105'' and inserting
``3105(a)''.
SEC. 103. COMPENSATION FOR CLAIMANT REPRESENTATIVES.
(a) In General.--Section 206 of the Social Security Act (42 U.S.C.
406) is amended to read as follows:
``representation of claimants
``Sec. 206. (a)(1) The Commissioner of Social Security may
prescribe rules and regulations governing the recognition of agents or
other persons, other than attorneys as hereinafter provided,
representing claimants before the Commissioner of Social Security, and
may require of such agents or other persons, before being recognized as
representatives of claimants that they shall show that they are of good
character and in good repute, possessed of the necessary qualifications
to enable them to render such claimants valuable service, and otherwise
competent to advise and assist such claimants in the presentation of
their cases. An attorney in good standing who is admitted to practice
before the highest court of the State, Territory, District, or insular
possession of his residence or before the Supreme Court of the United
States or the inferior Federal courts, shall be entitled to represent
claimants before the Commissioner of Social Security.
``(2) Notwithstanding paragraph (1), the Commissioner, after due
notice and opportunity for hearing--
``(A) may refuse to recognize as a representative, and may
disqualify a representative already recognized, any attorney
who has been disbarred or suspended from any court or bar to
which he or she was previously admitted to practice or who has
been disqualified from participating in or appearing before any
Federal program or agency, and
``(B) may refuse to recognize, and may disqualify, as a
non-attorney representative any attorney who has been disbarred
or suspended from any court or bar to which he or she was
previously admitted to practice.
``(3) The Commissioner of Social Security may, after due notice and
opportunity for hearing, suspend or prohibit from further practice
before the Commissioner any such person, agent, or attorney who refuses
to comply with the Commissioner's rules and regulations.
``(b) In prescribing the rules and regulations described in
subsection (a), the Commissioner of Social Security may not prescribe
any rules or regulations regarding the permissible fees which may be
charged for services performed in connection with any claim before the
Commissioner of Social Security under this title or title XVI. In no
case shall the Commissioner certify any amount for payment to any
representative out of any benefits payable to a claimant under this
title or title XVI.''.
(b) Conforming Amendments to Title XVI.--Section 1631(d)(2) of the
Social Security Act (42 U.S.C. 1383(d)(2)) is amended--
(1) by amending subparagraph (A) to read as follows:
``(A) The provisions of section 206 shall apply to this part to the
same extent as they apply in the case of title II.''; and
(2) by redesignating subparagraph (D) as subparagraph (B).
(c) Effective Date.--The amendments made by this section shall
apply with respect to applications for benefits filed on or after
January 1, 2019.
SEC. 104. MINIMUM MONTHLY WITHHOLDING TO RECOVER OVERPAYMENTS.
(a) In General.--Section 204(a)(1) of the Social Security Act (42
U.S.C. 404(a)(1)) is amended--
(1) by redesignating subparagraph (A) as clause (i) of
subparagraph (A);
(2) in subparagraph (A)(i) (as so redesignated), by
striking ``With'' and inserting ``Subject to clause (ii),
with''; and
(3) by adding at the end the following:
``(ii) If the Commissioner determines that
withholding the full amount of a monthly disability
insurance benefit payment to which an individual is
otherwise entitled under this title to recover an
overpayment pursuant to this section would defeat the
purpose of this title, the Commissioner may withhold
from such payment an amount that is less than such full
amount but not less than 10 percent of such full
amount.''.
(b) Regulations.--The Commissioner of Social Security shall
prescribe such regulations and make any conforming changes to
regulations as the Commissioner determines appropriate to carry out the
amendments made by this subsection.
(c) Effective Date.--The amendments made by this subsection shall
apply with respect to overpayments made on or after January 1, 2019.
SEC. 105. DISQUALIFICATION ON RECEIPT OF DISABILITY INSURANCE BENEFITS
IN A MONTH FOR WHICH UNEMPLOYMENT COMPENSATION IS
RECEIVED.
(a) In General.--Section 223(d)(4) of the Social Security Act (42
U.S.C. 423(d)(4)) is amended by adding at the end the following:
``(D)(i) If for any week ending within a month an individual is
paid unemployment compensation, such individual shall be deemed to have
engaged in substantial gainful activity for such month.
``(ii) For purposes of clause (i), the term `unemployment
compensation' means--
``(I) `regular compensation', `extended compensation', and
`additional compensation' (as such terms are defined by section
205 of the Federal-State Extended Unemployment Compensation Act
(26 U.S.C. 3304 note)); and
``(II) trade readjustment allowance under title II of the
Trade Act of 1974 (19 U.S.C. 2251 et seq.).''.
(b) Trial Work Period.--Section 222(c) of the Social Security Act
(42 U.S.C. 422(c)) is amended by adding at the end the following:
``(6)(A) For purposes of this subsection, an individual shall be
deemed to have rendered services in a month if the individual is paid
unemployment compensation for any week ending within such month.
``(B) For purposes of subparagraph (A), the term `unemployment
compensation' means--
``(i) `regular compensation', `extended compensation', and
`additional compensation' (as such terms are defined by section
205 of the Federal-State Extended Unemployment Compensation Act
(26 U.S.C. 3304 note)); and
``(ii) trade readjustment allowance under title II of the
Trade Act of 1974 (19 U.S.C. 2251 et seq.).''.
(c) Data Matching.--The Commissioner of Social Security shall
implement the amendments made by this section using appropriate
electronic data.
(d) Effective Date.--The amendments made by this section shall
apply with respect to individuals who initially apply for disability
insurance benefits on or after January 1, 2019, and are paid
unemployment compensation for any week ending on or after January 1,
2019.
SEC. 106. ELIMINATION OF RECONSIDERATION REVIEW APPLICATION STAGES.
(a) In General.--Section 205(b) of the Social Security Act (42
U.S.C. 405(b)) is amended--
(1) in paragraph (1), by adding at the end the following
new sentence: ``Opportunity for a hearing under this title in
accordance with this subsection with respect to any initial
decision or determination under this title shall be available
without any requirement for intervening reconsideration.'';
(2) by striking paragraph (2);
(3) by redesignating paragraph (3) as paragraph (2); and
(4) in paragraph (2) (as so redesignated), by striking ``or
an adverse determination on reconsideration of such an initial
determination''.
(b) Conforming Amendments.--Title II of such Act (42 U.S.C. 401 et
seq.), as amended by subsection (a), is further amended--
(1) in section 201(j), by striking ``reconsideration
interviews and''; and
(2) in section 221(i)(3)--
(A) by striking ``reconsideration of such initial
termination or''; and
(B) by striking ``reconsideration or'' before
``hearing''.
(c) Effective Date.--The amendments made by this section shall
apply with respect to any initial determination of entitlement to a
benefit under title II of the Social Security Act made on or after the
date that is one year after the date of the enactment of this Act.
SEC. 107. REPORT ON HIRING NEW ADMINISTRATIVE LAW JUDGES AND STAFF.
Not later than 180 days after the date of the enactment of this
Act, the Commissioner of Social Security shall submit to Congress a
report that includes an estimate of the number of new administrative
law judges and support staff that the Commissioner determines would be
necessary to make a final decision on the entitlement of each
individual for a disability insurance benefit under title II of the
Social Security Act not later than 6 months after the date on which
such individual applies for such benefits.
TITLE II--ELIGIBILITY
SEC. 201. UPDATING OF MEDICAL-VOCATIONAL GUIDELINES.
As soon as possible after the date of the enactment of this Act,
the Commissioner of Social Security shall prescribe rules and
regulations that update the medical-vocational guidelines, as set forth
in appendix 2 to subpart P of part 404 of title 20, Code of Federal
Regulations, used in disability determinations, including full
consideration of new employment opportunities made possible by advances
in treatment, rehabilitation, and technology and full consideration of
the effect of prevalent languages on education.
SEC. 202. REVIEW OF SOCIAL MEDIA ACTIVITY.
(a) In General.--Section 205(b)(1) of the Social Security Act (42
U.S.C. 405(b)(1)), as amended by section 110(a), is further amended by
inserting after the second sentence the following: ``In making any
initial determination of disability under this title, the Commissioner
of Social Security shall consider any relevant evidence from social
media of which the Commissioner is made aware prior to issuing a
decision involving such determination.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply with respect to applications for disability insurance benefits
filed on or after January 1, 2019.
SEC. 203. UPDATING DATA ON WORK WHICH EXISTS IN NATIONAL ECONOMY.
Not later than 5 years after the date of the enactment of this Act,
and every year thereafter, the Commissioner of Social Security shall--
(1) update the data used by the Commissioner to determine
the jobs which exist in the national economy (within the
meaning of section 223(d)(2)(A) of the Social Security Act (42
U.S.C. 423(d)(2)(A))), to ensure that such data reflects the
full range of work which exists in the national economy,
including newly-created jobs in emerging industries; and
(2) submit to Congress a report describing each such
update.
TITLE III--CONTINUING DISABILITY REVIEWS
SEC. 301. STUDY ON IMPACT OF MEDICAL REVIEW STANDARD.
(a) In General.--The Commissioner of Social Security shall conduct
a study with respect to a large number of beneficiaries--
(1) to determine whether the Social Security Administration
would consider such beneficiaries to be disabled using the
Initial Disability Standard rather than the Medical Improvement
Review Standard (MIRS) during continuing disability reviews;
and
(2) to analyze the cause of any difference of result
between the two standards.
(b) Report.--Not later than 180 days after the date of the
enactment of this Act, the Commissioner of Social Security shall submit
a report to Congress on the study described in subsection (a).
SEC. 302. ADDITIONAL TRAINING RELATING TO MIRS EXCEPTIONS.
The Commissioner of Social Security shall--
(1) provide training, as the Commissioner determines to be
appropriate, to employees of State disability determination
services and to Federal personnel involved in making disability
determinations on the application of exceptions to the Medical
Improvement Review Standard (MIRS) during continuing disability
reviews; and
(2) establish a procedure by which such employees and
Federal personnel may request assistance from the Social
Security Administration in the application of such exceptions.
SEC. 303. INCREASED FREQUENCY OF CONTINUING DISABILITY REVIEWS.
(a) In General.--Section 221(i) of the Social Security Act (42
U.S.C. 421(i)) is amended--
(1) in paragraphs (1) and (2), by striking ``3 years'' each
place it appears and inserting ``2 years''; and
(2) in paragraph (1), by striking ``at such times as the
Commissioner of Social Security determines to be appropriate''
and inserting ``at least every 7 years''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply with respect to applications for disability insurance benefits
filed on or after January 1, 2019.
SEC. 304. COMMUNICATION RELATING TO TERMINATION OF BENEFITS.
(a) In General.--The Commissioner of Social Security shall ensure
that each award letter informing an individual of the individual's
initial entitlement to disability insurance benefits under title II of
the Social Security Act includes--
(1) a description of all of the conditions under which such
benefits may be terminated; and
(2) except in any case in which a finding has been made
that the individual's disability is permanent, an explanation
that disability insurance benefits are temporary and that the
individual is expected to return to work after medical
improvement has occurred.
(b) Effective Date.--The amendment made by subsection (a) shall
apply with respect to individuals who become entitled to disability
insurance benefits on or after January 1, 2019.
SEC. 305. COMMUNICATION RELATING TO REPORTING REQUIREMENTS.
The Commissioner of Social Security shall ensure that each
communication from the Social Security Administration made to an
individual entitled to disability insurance benefits includes a
description of the individual's responsibility to report to the
Commissioner of Social Security any change of circumstance that may
affect the individual's entitlement to such benefits.
TITLE IV--BENEFITS
SEC. 401. ESTABLISHMENT OF ANNUAL POVERTY GUIDELINE BASED DISABILITY
INSURANCE BENEFITS.
(a) In General.--Section 223(a) of the Social Security Act (42
U.S.C. 423(a)(2)) is amended by inserting after paragraph (2) the
following new paragraph:
``(3) In the case of an individual who initially becomes
entitled to disability benefits in the calendar year 2019 or
any subsequent calendar year, and except as provided in section
202(q) of this title, such individual's disability insurance
benefit for any month shall be one-twelfth of the most recently
published annual poverty guideline for an individual (as
updated annually in the Fed. Reg. by the Department of Health
and Human Services under the authority of section 673(2) of the
Omnibus Budget Reconciliation Act of 1981).''.
(b) Early Retirement Benefit Reduction.--Section 202(q)(2) of the
Social Security Act (42 U.S.C. 423(a)(2)) is amended by striking
subsection (q)(2) and replacing it with the following:
``(2) If an individual is entitled to a disability
insurance benefit for a month after a month for which such
individual was entitled to an old-age insurance benefit, such
disability insurance benefit for each month shall be--
``(A) if such individual initially became entitled
to disability benefits in any calendar year before
2019, reduced by the amount such old-age insurance
benefit would be reduced under paragraphs (1) and (4)
for such month had such individual attained retirement
age (as defined in section 416(l) of this title) in the
first month for which he most recently became entitled
to a disability insurance benefit; or
``(B) if such individual initially became entitled
to disability benefits in the calendar year 2019 or any
subsequent calendar year, equal to the higher of the
individual's reduced old-age insurance benefit under
paragraph (1) and the individual's disability insurance
benefit under section 423(a)(3).''.
(c) Conforming Amendment.--Section 223(a)(2) of the Social Security
Act (42 U.S.C. 423(a)(2)) is amended by striking ``Except'' and
inserting ``In the case of an individual who initially becomes entitled
for disability benefits in any calendar year before 2019, and except''.
SEC. 402. RETROACTIVE PAYMENT OF BENEFITS.
(a) In General.--Section 223(b) of the Social Security Act (42
U.S.C. 423(b)) is amended by striking ``12th month'' and inserting
``6th month''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply with respect to applications for disability insurance benefits
filed on or after January 1, 2019.
SEC. 403. INCLUSION OF UNEARNED INCOME IN DETERMINATION OF SUBSTANTIAL
GAINFUL ACTIVITY.
(a) In General.--Section 223(d)(4) of the Social Security Act (42
U.S.C. 423(d)(4)), as amended by section 3(b), is further amended by
adding at the end the following:
``(D)(i) If the amount of unearned income (as defined in section
1612) of an individual for a month is equal to or greater than the
monthly income limit for such month, the individual shall be deemed to
have engaged in substantial gainful activity for such month.
``(ii) For purposes of this subparagraph, the monthly income limit
is the amount of earnings derived from services, prescribed by the
Commissioner under regulations issued pursuant to subparagraph (A),
sufficient to demonstrate an individual's ability to engage in
substantial gainful activity for a month.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply with respect to monthly insurance benefits paid for months
beginning after the date that is 1 year after the date of the enactment
of this Act.
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