DMF — How Did The Congress Get So Far Off Track?

It may be that Groucho Marx said it best:

“Politics is the art of looking for trouble,

finding it everywhere,

diagnosing it incorrectly,

and applying the wrong remedies.”

Trouble surrounding the proper role of the Social Security Administration’s Death Master File (DMF) pointedly came to Congressional attention in 2011 in several contexts:

(1) Included in a surge of fraudulent tax returns claiming refunds filed with the IRS by identity thieves were some using the identities of recent deceased children;

(2)  The Office of Personnel Management continued to make improper retired pay payments after the former government employee was deceased,

(3) The City of Syracuse continued to make medical insurance premium benefit payments  after the retired former employee had died and even after the office administering their retired pay distributions had terminated those payments when the deceased individual appeared in the DMF.

What did all of these transactions have in common?  They all involved instances in which the DMF could and should have been used to flag suspicious transactions involving deceased individuals BUT THEY WERE NOT!

The misdiagnosis:  Instead, the problem was said to be that the personally identifying information of deceased individuals was widely available on the internet.   This approach fails to recognize that the use of the DMF should have been encouraged rather than made more difficult by clearly legitimate historical Users.

The Congressional Remedy (as reflected in Section 203 of the Bipartisan Budget Act of 2013):  Limit access to and the content of the SSA’s DMF, impose significant costs increases even on those certified for access, impose significant penalties upon those using the data outside the scope of the certification program, as well as many other administrative and technical burdens.  And thus the logical flaw previously described at /rpac/2016/11/12/closing-death-records-the-logical-flaw/ was codified.

How did the Congress get it so wrong?  One explanation is found in a speech found in the Congressional Record offered by Senator Orin Hatch  at page S8891 as the Bipartisan Budget Act was considered by the Senate on December 17, 2013:

     “Mr. President, it is becoming far too common for important legislation to bypass committees of jurisdiction and for it to be written by legislators who do not necessarily have the depth of knowledge and expertise necessary to avoid writing laws that either do not work or contain glitches, ambiguities, and confusing language.  In my opinion, we need to return to regular order where committees of jurisdiction are the places where issues in their jurisdiction are debated, processed, and agreed upon in a bipartisan fashion.  Certainly, committees of jurisdiction must be consulted when others decide to write legislation that involves issues that lie squarely within their jurisdictions.  That will be the surest route to preventing a reoccurrence of the ambiguity and confusion that has, unfortunately, arisen from the Death Master File provision of the budget agreement.” 

 Unfortunately, because the provisions of Section 203 were adopted outside of regular order it  did not reflect how much circumstances in 2013 had changed since 2011. In particular, no acknowledgement of the effectiveness of far less disruptive measures taken by the IRS (actually using the DMF as a filter to intercept fraudulent returns) by 2013 was already identifying most of those cases in which the thief could have gotten the SSN from the DMF.  Nor did these provisions demonstrate an awareness of the myriad legitimate uses which the DMF was serving.  The extent to which this represents a departure from sound legislative process has been the recent subject of an analysis by Professor Irene Scharf, University of Massachusetts School of Law.[1]

Some of the costs of inappropriately closing the DMF are  described at /rpac/2016/11/28/death-master-file-the-final-rule-28-nov-2016/.

Surely we can do better!

[1] Scharf, Irene (2016) “The Problem of Appropriations Riders: The Bipartisan Budget Bill of 2013 as a Case Study,”Mitchell Hamline Law Review: Vol. 42: Iss. 2, Article 9.

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Legal Advisor to Federation of Genealogical Societies; Former Associate Dean, Texas Wesleyan University School of Law; Colonel (retired), JAGC, USA

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