Whenever there is talk of a government shutdown, our office phones explode. We 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 shutdown will affect their benefit payments.
Social Security’s Deputy Commissioner for Budget, Finance, and Management recently addressed this issue in a letter to the Director of The Office of Management and Budget dated August 14, 2023. 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.
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 appropriation funds those payments through the first quarter of the following fiscal year. 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 previous contingency 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 the Office of Hearings Operations, we will except decision writers, administrative law judges, and support staff necessary to conduct hearings. We will also retain a limited number of SSA employees and necessary law enforcement agents from our Office of the Inspector General under the protection of life and property exception. As the below charts note, the 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 – Fiscal Year 2024
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 Frontline Activities
Continued Activities
- Application for benefits (including appointments; limited data exchanges and record corrections, including claims-related earnings, for mandatory benefits)
- Request for appeals (reconsiderations, hearings, Appeals Council)
- Post-entitlement actions (change of address, Supplemental Security Income living arrangement changes, non-citizen verification/changes, direct deposit, death inputs, processing of remittances for overpayments and administrative fees, etc.)
- Non-receipts and critical payments
- Payee changes
- Direct contact reinstatement of benefits
- Issuance of original and replacement Social Security cards
- Prisoner activities—beneficiary-initiated reinstatement of benefits only
- Program integrity workloads (redeterminations and continuing disability reviews (CDR)) due to the extended availability of appropriations (DCBFM will notify components at the time of a lapse as to the availability of funds)
- Critical information technology (IT) support for daily processing activities
- IT multi-factor authentication (MFA) acceleration work supported by the extended availability of the Technology Modernization Fund.
Discontinued Activities
- Benefit verifications
- Earnings record corrections and updates
- Payee accountings
- Prisoner activities–suspension
- Requests from third parties for queries
- Freedom of Information Act (FOIA) requests
- IT enhancement activities, public relations, and training
- Replacement Medicare cards
- Overpayments processing
State Disability Determination Services (DDS)
Continued Activities
- Initial claims, including terminally ill, compassionate allowances, quick disability determinations, dire need, and wounded warriors
- Reconsiderations
- Critical IT support for daily processing activities
- Program integrity workloads (redeterminations and CDRs) due to the extended availability of appropriations. (DCBFM will notify components at the time of a lapse as to the availability of funds)
- Assistance requests for hearings
Discontinued Activities
- End-of-line quality assurance reviews, IT enhancements activities, public relations, and training
Hearings and Appeals Activities
Continued Activities
- Hearing cases
- Deciding 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
- Decision-writing
- Screening cases for On-the-Record decisions
- Scheduling hearings
- Providing critical IT support for daily hearings
- Hearing appeals
- Deciding appeals
- Docketing and tracking new cases
- Adding new medical and vocational experts to blanket purchase agreements
- Conducting quality assurance review activities related to allowances
Discontinued Activities
- Conducting quality assurance review activities other than those related to allowances
- 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
