I 115th CONGRESS 2d Session H. R. 6532 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.

1. Short title This Act may be cited as the Making DI Work For All Americans Act of 2018 . 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. I Administrative changes 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. 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) . 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: 206. Representation of claimants (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. 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. 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. 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. 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. II Eligibility 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. 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. 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. III Continuing Disability Reviews 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). 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. 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. 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. 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. IV Benefits 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 . 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. 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.