“There’s a New Sheriff in Town” at SSA

Published in RINewsToday on June 19, 2020

On June President Joe Biden has asked two political holdovers from the President Trump’s administration, Social Security Commissioner Andrew Saul and his deputy, David Black, who had previously served as the agency’s top lawyer, to resign. Saul ultimately was fired after refusing to resign Friday, July 9, while Black resigned upon the president’s request that day. 

Biden named as acting commissioner, Kilolo Kijakazi, whom he earlier had appointed to a lower-level Social Security Administration (SSA) position, deputy commissioner for retirement and disability policy. 

The White House affirmed its authority to “remove the SSA Commissioner at will” by citing a Supreme Court ruling and a legal opinion from the Justice Department. Previously, under statute, the president could only remove the SSA commissioner for “neglect of duty” or “malfeasance in office.”

Saul’s term as Social Security Administrator ended in 2025 and according to The Washington Post, he states he plans to dispute the White House firing and continue to work remotely at his New York City home.

“I consider myself the term-protected commissioner of Social Security,” Saul told The Washington Post, calling the attempt to unseat him a “Friday Night Massacre.”

Minority Members of Senate Aging Committee Oppose Firing

Ranking Member Tim Scott (R-South Carolina), Senators Susan Collins (R-Maine), Richard Burr (R-North Carolina), Marco Rubio (R-Fla..), Mike Braun (R-Ind..), Rick Scott (R-Fla..), and Mike Lee (R-Utah) sent a letter July 14 to President Biden urging him to reinstate and honor the Senate confirmed, six-year term of Saul as SSA Commissioner. 

Members of the Senate Special Committee on Aging find the politically motivated action especially worrisome as it will have drastic effects on SSA services that help millions of older Americans with basic expenses like housing, food and medicine. 

The letter explains “Commissioner Saul was confirmed by the Senate in an overwhelmingly bipartisan vote in 2019… led the agency through one of the most trying periods in its history during the COVID-19 pandemic… was confirmed by the Senate to serve a full six-year term that expires in 2025 and he should have remained in his position unless removed for cause, as written in federal law.

The committee requested the Biden administration explain what authority an acting commissioner—not confirmed by the Senate—would possess to carry out the statutorily obligated duties of the SSA commissioner. 

 On the Other Side of the Aisle…

“From the beginning of their tenure at the Social Security Administration Andrew Saul and David Black were anti-beneficiary and anti-employee. The Biden Administration made the right move to fire both Saul and Black after they refused to resign, says chairperson John B. Larson (D-CT), of the House Ways and Means Social Security Committee, who had called for Saul and Black’s removal in March 2021. “As [Supreme Court] Justice Alito recently stated, the president needs someone running the agency who will follow their policy agenda,” he says.

According to Larson, since June 17, 2019, Saul’s control over SSA policies have “disproportionately harmed vulnerable Americans like low-income seniors and persons with disabilities, immigrants and people of color.

During Saul’s tenure, Larson noted that the SSA implemented a new rule that denied disability benefits for older, severely disabled workers who are unable to communicate in English, resulting in approximately 100,000 people being denied more than $5 billion in benefits from 2020 to 2029. However, there has been considerable discussion of the misinterpretation of the intent of this change.

SSA also finalized a new regulation that dramatically reduced due process protections for Social Security appeals hearings, by allowing the SSA to use agency attorneys instead of independent judges for the hearings, says Larson.

Larson also expressed concern about SSA proposing to change the disability review process to cut off benefits for some eligible people and proposing to make it significantly harder for older, severely disabled workers to be found eligible for disability benefits. 

According to Larson, Saul also advanced the Trump Administration’s anti-immigrant policies by resuming “no-match letters” to employers with even minor discrepancies between their wage reports and their employees’ Social Security records. These letters effectively serve to harass immigrants and their employers, often leading to U.S. citizens and work-authorized immigrants being fired, he said.

Finally, Larson charged that Saul embraced the Trump Administration’s anti-federal employee policies, including forcing harsh union contracts that strip employees of rights and ending telework for thousands of employees just months before the COVID-19 pandemic started – a particularly ill-fated decision given the critical role telework has played in SSA’s ability to continue serving the public during the pandemic. 

Thumbs Up from Aging Advocacy Groups 

“The Social Security Commissioner should reflect the values and priorities of President Biden, which include improving benefits, extending solvency, improving customer services, reopening field offices, and treating SSA employees and their unions fairly. That was not the case with former Commissioner Saul, and we look forward to President Biden nominating someone who meets that standard,” says Max Richtman, President and CEO, National Committee to Preserve Social Security and Medicare.

Adds Alex Lawson, Executive Director of Social Security Works: “Today is a great day for every current and future Social Security beneficiary. Andrew Saul and David Black were appointed by former President Donald Trump to undermine Social Security. They’ve done their very best to carry out that despicable mission. That includes waging a war on people with disabilities, demoralizing the agency’s workforce, and delaying President Biden’s stimulus checks.”  

Introducing New SSA Commissioner, Kilolo Kijakazi…

Kilolo Kijakazi has a Ph.D. in public policy from George Washington University, an MSW from Howard University, and a BA from SUNY Binghamton University. Kijakazi’s Urban Institute bio notes that she served as an Institute Fellow at the Urban Institute, where she “worked with staff across the organization to develop collaborative partnerships with those most affected by economic and social issues, to expand and strengthen Urban’s agenda of rigorous research, to effectively communicate findings to diverse audiences and to recruit and retain a diverse research staff at all levels” while conducting research on economic security, structural racism, and the racial wealth gap. 

Kijakazi was previously employed as a program officer at the Ford Foundation, a senior policy analyst at the Center on Budget and Policy Priorities, a program analyst at the Food Nutrition Service of the Department of Agriculture, and an analyst at the National Urban League.

According to Wikipedia, before entering the Biden administration, Kijakazi was a board member of the Winthrop Rockefeller Foundation, the National Academy of Social Insurance and its Study Panel on Economic Security, the Policy Academies and Liberation in a Generation, as well as a member of the DC Equitable Recovery Advisory Group, adviser to Closing the Women’s Wealth Gap, co-chair of the National Advisory Council on Eliminating the Black-White Wealth Gap at the Center for American Progress, and member of the Commission on Retirement Security and Personal Savings at the Bipartisan Policy Center. 

“Kilolo has an amazing ability to find and build connections among individuals and institutions that should be working together on critical public policy issues and policy discussions are much better for that inclusionary approach,” says Margaret Simms, an Institute Fellow in the Center on Labor, Human Services, and Population at the Urban Institute.

Time to resolve RI’s ongoing Nursing Home staffing crisis

Published in RINewsToday on April 18, 2021

The latest release of AARP’s Nursing Home COVID-19 Dashboard shows that both cases and deaths in nursing homes declined in the four weeks ending March 21. Although these rates are improving, chronic staffing problems in nursing homes—revealed during the COVID-19 pandemic—continue. In Rhode Island, 30% of nursing homes reported a shortage of nurses or aides, which is only fractionally better than the previous reporting period. 

AARP has come out swinging to fight for enhancing the quality of care in Rhode Island’s 104 nursing homes.

AARP Rhode Island, representing 131 members, calls for the General Assembly to ensure the quality of care for the state’s nursing home through minimum staffing standards, oversight, and access to in-person formal advocates, called long-term care Ombudsmen. The state’s the largest aging advocacy group has urged lawmakers to create a state task force on nursing home quality and safety and has pushed for rejecting immunity and holding facilities accountable when they fail to provide adequate care to residents.  It’s also crucial that Rhode Island ensures that increases in nursing homes’ reimbursement rates are spent on staff pay and to improve protections for residents, says AARP Rhode Island. 

Last December, AARP Rhode Island called on Governor Gina Raimondo to scrap Executive Order 20-21 and its subsequent reauthorizations to grant civil immunity related to COVID-19 for nursing homes and other long-term care facilities. The aging advocacy group warned that these facilities should be held responsible for providing the level of quality care that is required of them for which they are being compensated.

Rhode Island Lawmakers Attack Nursing Home Staffing Crisis

During the legislative session, the state’s nursing home staffing crisis caught the eye of Senate Majority Whip Maryellen Goodwin is a policy issue that needs to be addressed. They knew that Rhode Island ranked 41st in the nation in the number of the average hours of care nursing home residents receive, according to data from the Centers for Medicare and Medicaid Services.  The state also has the lowest average resident-care hours per day of any New England state.

On Feb. 2, the Rode Island Senate approved S 0002, “Nursing Home Staffing and Quality Care Act” sponsored by Goodwin and nine Democratic cosponsors to address an ongoing crisis in staffing nursing homes that has been exacerbated by the COVID-19 pandemic.  The bill had passed unanimously in the Health and Human Services Committee, and ultimately, the full Senate gave its thumbs up to the legislative proposal by a vote of 34 to 4.  Only one Republican senator crossed the aisle and voted with the Democratic senators.

“There is a resident care crisis in our state. Staffing shortages and low wages lead to seniors and people with disabilities not receiving the care they desperately need. The pandemic, of course, has exponentially increased the demands of the job and exacerbated patients’ needs. We must confront this problem head-on before our nursing home system collapses,” said Sponsor Senator Goodwin (D-Dist. 1, Providence).

The legislation would establish a minimum standard of 4.1 hours of resident care per day, the federal recommendation for quality care long endorsed by health care experts including the American Nurses Association, the Coalition of Geriatric Nursing Organizations, and the National Consumer Voice for Quality Long-Term Care. The bill, which the Senate also approved last year, has been backed by Raise the Bar on Resident Care, a coalition of advocates for patient care, and the Rhode Island’s Department of Health (RIDOH).

The bill would also secure funding to raise wages for caregivers to recruit and retain a stable and qualified workforce. Short staffing drives high turnover in nursing homes. Not only does high turnover create undue stress and burnout for remaining staff, but it also diverts valuable resources to recruit, orient, and train new employees and increases reliance on overtime and agency staff.  Low wages are a significant driver of the staffing crisis. The median wage for a CNA in Rhode Island is less than $15, and $1/hour lower than the median wage in both Massachusetts and Connecticut.

The legislation would also invest in needed training and skills enhancement for caregivers to provide care for patients with increasing acuity and complex health care needs.

At press time, the companion bill (2021-H-5012), sponsored by Reps. Scott A. Slater (D-Dist.10, Providence) and William W. O’Brien (D-Dist. 54) was considered by House Finance Committee and recommended for further study.

RIDOH’s Director Nicole Alexander-Scott, MD, MPH says the state agency “supports the thoughtfulness of the provisions included in the legislation and welcomes dialogue with its sponsors, advocates, and the nursing home facility industry regarding methods to sustain the necessary conditions associated with the intent of the bill.”

Alexander-Scott states that “RIDOH takes its charge seriously to keep nursing home residents and is supportive of efforts to update standards of care to better serve Rhode Islanders in nursing facilities, as well as increase resident and staff satisfaction within nursing facilities.”

Scott Fraser, President and CEO of the Rhode Island Health Care Association (RIHCA), a nonprofit group representing 80 percent of Rhode Island’s nursing homes, says that “staffing shortages are directly traceable to the chronic lack of Medicaid funding from past governors. Period.” 

According to Fraser, state law requires Medicaid to be funded at a national inflation index, usually averaging around 3%. “Up until this year, previous governors have slashed this amount resulting in millions of dollars in losses to our homes.  Thankfully, Governor McKee is proposing to fully fund the Medicaid Inflation Index this year,” he says.

RIHCA opposes the mandatory minimum staffing the legislation now being considered by the Rhode Island General Assembly, says Fraser, warning that its passage would result in facilities closing throughout the state. “No other state has adopted such a high standard,” he says, noting that the Washington, DC-based American Health Care Association estimates that this legislation would cost Rhode Island facilities at least $75 million to meet this standard and the need to hire more than 800 employees. 

Fraser calls for the “Nursing Home Staffing and Quality Care Act” to be defeated, noting that the legislation does not contain any provisions for funding.  “Medically, there is no proof that mandating a certain number of hours of direct care results in any better health outcomes.  This is an unfunded legislative mandate. If homes are forced to close, not only would residents be forced to find a new place for their care, but hundreds of workers would also be forced out of work,” he says.

Goodwin does not believe that mandating minimum staffing requirements in nursing homes will force nursing homes to close. She noted that the legislation is aimed at ensuring nursing home residents receive adequate care and that Rhode Island is the only state in the northeast without such a standard.

“There is an un-level playing field in nursing home staffing in Rhode Island,” charges Goodwin, noting that many facilities staff 4.1 hours per day, or close to it, while others only provide two hours of care per day. “In either case, the overwhelming majority of well-staffed and poorly-staffed nursing homes remain highly profitable,” she says. 

According to Goodwin, the lack of staffing and certified nursing assistants (CNAs) is due to unreasonable workloads and low pay. “RIDOH’s CAN registry makes it clear that retention of these workers is a big issue. This is in part because they can make as much money – or more – in a minimum wage profession with much less stress,” she adds, stressing that “The Nursing Home Staffing and Quality Care Act” directly addresses these staffing challenges.

One quick policy fix is to provide nursing home operators with adequate Medicaid reimbursement to pay for increased staffing.  Lawmakers must keep McKee’s proposed increase of nursing home rates pursuant to statute, requiring a market-based increase on Oct. 2021, in the state’s FY 2020 budget. The cost is estimated to be $9.6 million.

With the House panel recommending that Slater’s companion measure ((2021-H-5012) to be held for further study, Goodwin’s chances of seeing her legislation becoming law dwindles as the Rhode Island Assembly’s summer adjournment begins to loom ever closer. There’s probably no reason to insist that a bill be passed in order to have a study commission, so this could be appointed right away if there is serious intent to solve this problem.

Slater’s legislation may well be resurrected in the final days of the Rhode Island General Assembly, behind the closed doors when “horse-trading” takes place between House and Senate leadership.  If this doesn’t occur, either the House or Senate might consider creating a Task Force, bringing together nursing home operators, health care professionals and staff officials, to resolve the state’s nursing home staffing crisis. 

Age Discrimination, Workplace Issues at House Hearing

Published in RINewsToday.com on March 22, 2021

Just days ago, Rep. Robert C. “Bobby” Scott (D-VA), chairperson of the House Committee on Education and Labor and Rep. Rodney Davis (R-IL) introduced, H.R. 2062, the bipartisan “Protection Older Workers Against Discrimination Act” (POWADA), a bill that would strengthen federal anti-discrimination protections for older workers. The legislation was introduced March 18, 2021, the same day of a joint House Education and Labor Subcommittee hearing, held to address a variety of workplace issues.  POWADA has been referred to the House Committee on Education and Labor for consideration.

The reintroduction of POWADA is timely.  As the COVID-19 pandemic continues, older workers are attempting to keep their jobs, working more and longer than they ever have. When seniors lose their jobs, they are far more likely than younger workers to join the ranks of the long-term unemployed. And unfortunately, discrimination appears to be a significant factor in older workers’ long-term unemployment.

A 2018 survey conducted by the Washington, DC-based AARP found that 3 in 5 workers age 45 and older had seen or experienced age discrimination in the workplace. The 2018 survey also found that three-quarters of older workers blame age discrimination for their lack of confidence in being able to find a new job.

Congress Gears Up to Again Fight Age Discrimination

Reps. Scott and Davis were joined by seven Republicans and 14 Democrats, including Civil Rights and Human Services Subcommittee Chair Suzanne Bonamici (D-OR) and Workforce Protections Subcommittee Chair Alma Adams (D-NC) to support H.R. 2062.

Rhode Island Rep. David Cicilline has also requested to be a co-sponsor of this legislation.

POWADA was first introduced in Congress after an adverse 2009 Supreme Court decision, Gross v. FBL Financial Services, made it much more difficult for older workers to prove claims of illegal bias based on age. Under Gross, plaintiffs seeking to prove age discrimination in employment are required to demonstrate that age was the sole motivating factor for the employer’s adverse action.  The Supreme Court ruling upends decades of precedent that had allowed individuals to prove discrimination by showing that a discriminatory motive was one of the factors on which an employer’s adverse action was based.

Scott’s reintroduced POWADA returns the legal standard for age discrimination claims to the pre-2009 evidentiary threshold, aligning the burden of proof with the same standards for proving discrimination based on race and national origin.

“Everyone– regardless of their age – should be able to go to work every day knowing that they are protected from discrimination. Unfortunately, age discrimination in the workplace is depriving older workers of opportunities and exposing them to long-term unemployment and severe financial hardship, says chairperson Scott, noting that the reintroduced bipartisan bill would finally restore the legal rights under the Age Discrimination in Employment Act, which covers workers age 40 and over.

Republican Rep. Rodney Davis puts aside political differences and has stepped up to the plate with a handful of GOP lawmakers to co-sponsor Scott’s POWADA legislation. “Every American, including older Americans, deserves to work in a workplace or jobsite that is free from discrimination. That’s why I’m proud to team up with chairperson Bobby Scott and a bipartisan group of lawmakers in introducing the Protecting Older Workers Against Discrimination Act. Our bipartisan bill provides workplace protections for older workers by removing barriers they have to filing discrimination claims, ensuring their workplace rights can be enforced, says Davis, pledging to work with colleagues on both sides of the aisle to finally get the bill passed,” he says.    

Oregon Rep. Bonamici, who chairs the Subcommittee on Civil Rights and Human Services, notes that her state has a rapidly aging population, and age discrimination in the workplace remains disturbingly pervasive.  She joins Scott in cosponsoring POWADA.

“I’ve heard from Oregonians who were denied or lost a job because of their age, but the bar for proving discrimination is very high and the outcomes are uncertain. The bipartisan Protecting Older Workers Against Discrimination Act makes it clear that unlawful discrimination in the workplace is unacceptable and holds employers accountable for discriminatory actions,” says Bonamici.

Adams, who chairs the Subcommittee on Workforce Protections, joins Bonamici in cosponsoring POWADA.  The North Carolina Congresswoman states: “Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce Protections. The North Carolina Congresswoman notes that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.”

“Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce. The North Carolina House Lawmaker says that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.

“The introduction of this bill is a crucial step to strengthening the law and restoring fairness for older workers who experience age discrimination,” said Nancy LeaMond, AARP Executive vice president and Chief Advocacy & Engagement Officer. “It sends a clear message that discrimination in the workplace – against older workers or others – is never acceptable.

“Age discrimination in the workplace, like any other kind of discrimination, is wrong.,” said AARP Rhode Island State Director Kathleen Connell. That’s why AARP is fighting all forms of age discrimination in the hiring process and on the job, including an unfair court decision that makes age discrimination more difficult to prove than race- or sex-based discrimination. “Rhode Islanders are living and working longer and experienced workers bring expertise, maturity, and perspective,” Connell added. “Yet negative stereotypes and mistaken assumptions mean that older people are often treated unfairly in the workplace. We need bipartisan Congressional action to address this stubborn and persistent problem.”

Tackling Workforce Issues

Over two-hours, four witnesses testified at a joint Zoom hearing, “Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination,” held before the House Education and Labor Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections. The morning hearing addressed an array of workforce issues including race and longstanding gender inequities and barriers and pregnancy discrimination at the workplace. A spotlight was also put on the rampant increase of age discrimination that older workers are now facing in the job market and the need to pass POWADA to reverse the detrimental impact of a 2009 Supreme Court decision.

Lauren McCann, senior attorney at AARP Foundation, pointed out to the attending House lawmakers that age discrimination in the workplace remains “stubbornly persistent” and urged a House Education and Labor hearing to “re-level the playing field” by passing strong anti-bias legislation.

McCann told the committee that the ongoing COVID-19 pandemic has exacerbated the problems faced by older workers, who have left the labor force in the last year at twice the rate during the Great Recession.

McCann testified that passage of POWADA, sponsored by Scott, the Chair of the House Committee of Education and Labor, is crucial to reverse the 2009 Supreme Court decision in the Gross v. FBL Financial Services, Inc. case. McCann said that the high court’s 2009 decision abruptly changed the standard — from the longstanding requirement under the ADEA that a worker prove that age is just one motivating factor in adverse treatment on the job — to a much higher and tougher to prove standard: that age is the standard motive.

“Older workers now always bear the burden of persuasion in ADEA cases,” McCann emphasized.

According to McCann, House hearing comes at a time when older workers have been battered by the economic downturn caused by the pandemic. Unemployment for workers age 55 and older more than doubled between Feb. 2020, just before the pandemic began, and last month, based on AARP Public Policy Institute (PPI) analysis of federal data.

The number of age 55 and over unemployed has also doubled, up from one million in February 2020, to 2 million last month, according to PPI.

Turning to the Senate…

At press time, a senior Senate aide for Sen. Bob Casey (D-PA), who chairs the Senate Special Committee on Aging, says the Senator is posed to follow the House by throwing the Senate’s POWADA Senate companion measure into the legislative hopper Monday. 

The Pennsylvania Senator clearly understands why he again must push for the passage and enactment of POWADA.  “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen antidiscrimination protections that are being eroded,” says Sen. Casey. “POWADA would level the playing field for older workers and ensure they are able to fight back against age discrimination in the workplace.”