Erroneous Governmental Action: A Form of Elder Abuse?

Elder abuse comes in many forms, and one of them is institutional abuse. When we talk about institutional abuse, we usually mean abuse occurring in nursing homes, hospitals, and other health facilities. However, as the following case illustrates, there is another serious institutional problem afflicting elders today involving grossly erroneous decisions by the Social Security Administration and the agency’s apparent apathy toward the devastating effects on elders caused by these decisions.

In the fall of 2013, I embarked on what can only be described as a wild goose chase across the Caribbean Sea to help restore a client’s monthly federal Supplemental Security Income (“SSI”) benefits. “Marge” was an 87-year old, frail woman whose SSI benefits were erroneously terminated in May of 2013 because the Social Security Administration (“SSA”) mistakenly believed she owned a house in Barbados. As a woman in her late eighties with no income for seven months, Marge was in a desperate situation; she couldn’t pay her rent, and she lived in constant fear that her utilities would be shut off and that she would be evicted.

In 1990, Marge fled from her abusive husband to the United States, and she remained separated from him until his death in 2006. She received SSI benefits for many years and always reported that she did not own any property in either the United States or Barbados. Yet during a benefits review at her local SSA office in December of 2012, she was apparently asked a question about property in Barbados.

Marge never owned the property in question and did not remember ever telling any SSA employee that she owned the property during that December review. She remembered being asked questions about a home in Barbados, which had belonged to her deceased husband, where her two adult children had lived for many years and continued to reside. The SSA decided that Marge owned this Barbados property and subsequently terminated her SSI benefits.

Is this elder abuse?

Again, Marge was 87 years old and frail. As we got to know her at GBLS, we realized she had some short-term memory loss. For years, Marge had been clear that she did not own property in Barbados when questioned by the SSA. At Marge’s December review, when she was asked the same question she had been asked for years, confusion arose over her answer. Given Marge’s age, health, and 20+ years of consistent answers to this question, the SSA representative had ample notice that Marge was perhaps having some memory difficulties and should have tried another method of confirming the information. Instead, the SSA cut off Marge’s benefits entirely and shifted the burden to Marge to prove she did not own the Barbados property.

Marge repeatedly met with a worker at her local SSA office and continued to reiterate that she did not own the property in question. The worker kept telling her that the only way to prove that she did not own the property was to obtain a deed. Marge then hired a Barbados attorney to search Barbados Land Registry records to see if Marge owned any property. In August of 2013, the Barbados attorney reported to the SSA that there were no property records in Marge’s name in Barbados.

Despite the Barbados attorney’s report and Marge’s repeated declarations that she did not own property in Barbados, the SSA denied her Requests for Reconsideration and Waiver of Overpayment since Marge did not provide a deed to the property in question. Instead, the SSA used the value of this Barbados property to deny Marge her SSI benefits.

After the SSA denied Marge’s Requests for Reconsideration and Waiver of Overpayment, I began an extensive campaign to seek information and request the property deed from the Barbados Land Registry. After numerous email, phone, and fax requests for this deed, the Barbados Registrar of Title finally confirmed that there were no Barbados property records in Marge’s name. In fact, the only records relating to the property in question were two mortgages that listed the property in Marge’s husband’s name. However, the SSA had strangely deemed these mortgages inadequate proof.

I then submitted a legal memorandum to the Administrative Law Judge (“ALJ”) stating that the documented efforts of GBLS, the Barbados Registrar of Title, and the Barbados attorney conclusively showed that there was no property in Marge’s name in Barbados and that there was no available deed for the property in question at that time. I argued that Marge had exhausted all legal and administrative efforts toward proving she did not own property in Barbados, and that the SSA’s disregard of these documented efforts and frivolous demands for a deed were in direct opposition to the SSA’s stated mission to “administer national Social Security programs . . . in an equitable, effective, efficient and caring manner.”

I further argued that Barbados law precluded Marge from inheriting the Barbados property from her husband. A GBLS intern had made a critical discovery that Barbados law precluded a husband or wife from taking ownership of property by way of legal right or intestacy where he or she had been living apart from his or her spouse continuously for five years or more. Since Marge and her husband had lived apart since 1990, when she fled from him to the United States, until his death in 2006, under Barbados law, she could not take any share of her husband’s estate following his death. She therefore could not own the Barbados property in question, because Barbados law precluded her from inheriting property from her husband in the first place.

In December of 2013, seven months after the termination of Marge’s benefits, the ALJ returned a fully favorable decision. Finding that Marge never owned any property in Barbados for purposes of an SSI benefits resource analysis, the ALJ immediately reinstated Marge’s benefits and ordered that she be reimbursed all retroactive benefits erroneously withheld from her.

It isn’t clear that what happened to Marge is elder abuse. What is clear is that the consequences of erroneous SSA decisions can be immediate and devastating. In addition, huge amounts of resources are spent correcting the SSA’s errors. And Marge is just one of many affected by such decisions. It is frightening to think about just how many elders fall victim to SSA errors and have no one to help them. Marge had the benefit of Greater Boston Legal Services. We worked with her landlord to avoid an eviction that would have made her homeless. We succeeded in reversing the SSA’s decision. Yet most elders likely have no support in appealing erroneous decisions or navigating the SSA’s bureaucratic maze. This is a tragedy.

Millions of elders, including many like Marge with some memory loss, physical frailty, and other cognitive impairments, depend on assistance such as SSI benefits, and a loss of benefits threatens not only the roofs over their heads but their very survival. So, when a government agency such as the Social Security Administration erroneously terminates or reduces an older person’s benefits, is it elder abuse?

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2 thoughts on “Erroneous Governmental Action: A Form of Elder Abuse?

  1. The question of institutional abuse you have raised is almost as difficult to answer as the Social Security Administration’s (SSA) request that your client prove a negative. Is it abuse to presume guilt which must then be disproved, a difficult exercise that must be paid for by the client in time, emotions and dollars? This requirement runs contrary to our legal system, but it is abuse?

    Since the SSA serves a wide demographic range, one must also determine if there is evidence that this daunting administrative demand is applied to all ages or limited only to the elderly.

    There is no mention of what mitigated the review and the question. Did the SSA have some new evidence implying ownership? If they did not their re-questioning ownership after such a long time at least leans towards badgering. This technique is used in interrogations that have produced confusion and untrue statements from those in many age groups.

    Further, one of the most effective powers that any federal agency or agent has over the individual is time. They can exert inordinate pressure because during that wait the individual is without, in this case, benefits and likely burning resources. Sadly the SSA is not the only agency that uses this power and it is bullying.

    However in this particular case, when an elderly women of very limited means is badgered and bullied, it is ABUSE.

    Like

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