These FAQs have been used with my consent by the National Organization of Social Security Claimants Representatives (NOSSCR) and a few others and illegally by many more. You may freely link to this draft of the FAQs, but you ought to wait until I finalize them. You may not simply steal them however. Copying them, with or without attribution, and using them elsewhere, whether online or offline, without my permission is a copyright violation or to be more blunt, theft. That is illegal and can get you in trouble.
Oct 13, 2008
These FAQs have been used with my consent by the National Organization of Social Security Claimants Representatives (NOSSCR) and a few others and illegally by many more. You may freely link to this draft of the FAQs, but you ought to wait until I finalize them. You may not simply steal them however. Copying them, with or without attribution, and using them elsewhere, whether online or offline, without my permission is a copyright violation or to be more blunt, theft. That is illegal and can get you in trouble.
|McCain will be elected and Astrue will continue as Commissioner (1)||1%|
|McCain will be elected, but Astrue will decide to resign (1)||1%|
|Obama will be elected and Astrue will continue |
as Commissioner (18)
|Obama will be elected and Astrue will decide to resign (21)||28%|
|Obama will be elected, Astrue will try to stay as Commissioner, |
but Obama and other Democrats will force Astrue to leave (33)
Oct 12, 2008
It is interesting that NCSSMA emphasizes in the newsletter that they are not a union. Since NCSSMA members are supervisory personnel, I suppose that it would be impossible for NCSSMA to become a union. However, NCSSMA wants its members treated as well as union members when they are investigated.
This is reminiscent of the way that the Administrative Law Judge Association (AALJ) became a union. The AALJ members were concerned that Social Security management was not treating ALJs as well as it treated union members. Now, Social Security management personnel are concerned that they are not being treated as well as union members. NCSSMA's concerns cannot be a good thing for the Social Security Administration.
Oct 11, 2008
AFGE Criticizes iClaims And Ready Retirement -- And Social Security's Involvement With Voter Registration
The Social Security Administration recently has tried several new directives for dealing with benefit applicants, including a new system for filing Social Security benefits via the Internet. Some of the new directives already are causing problems for the SSA and applicants alike.The press release ends with this swipe at Social Security's involvement with voter registration:
The new iClaims and Ready Retirement initiatives were designed to streamline the Social Security Administration by moving the public to Internet services, but according the American Federation of Government Employees, it is doing the opposite. “Without an SSA employee adjudicating the claims, we run the risk of fraud and incorrect claims being filed,” said AFGE Council 220 President Witold Skwierczynski.
“It’s not only people who are filling out fraudulent applications, but applicants who just don’t understand the confusing iClaims process and are unknowingly cheating themselves out of their deserved benefits,” said Skwierczynski. “Moving the public over to Internet services short-changes anyone who attempts to use these services and creates a situation where fraud easily can occur. Filing for Social Security benefits is not something easily handled over the Internet, particularly if the applicant is not computer savvy.”
AFGE also is concerned about how the SSA is dealing with the Help America Vote Act. States are required to authenticate new registration applicants using the last four digits of their Social Security number or driver’s license, and match that number to the Social Security database. However, databases are prone to errors such as data entry mistakes which result in spelling mistakes, and switched numbers. Because of this there is now a 28.5 percent error rate with the matches between voter registration records and the SSA database.
Oct 10, 2008
My comments today have to do with the concept of an entity as a representative of claimants. The NPRM defines an entity as "any business, firm, or other association, including but not limited to partnerships, corporations, for-profit organizations, and not-for-profit organizations." An entity may be a principal representative and a professional representative. Direct payment of fees may be made to an entity that meets these conditions:
(1) The entity must attest that it is in possession of a signed statement from each attorney or non-attorney who has performed any representational services for the claim in question that includes the following:Beyond this, the NPRM provides almost no guidance on how entities are to be treated.
(i) The attorney or non-attorney has performed all representational services on behalf of the entity, (ii) Any fees paid pursuant to the services the attorney or non-attorney have provided should be paid directly to the entity, and
(iii) The attorney or non-attorney representative receives compensation for the services provided directly from the entity.
(2) The entity must attest that all individuals who have provided representational services on the claim in question are individuals who qualify for direct payment under the Act or the direct payment demonstration project, as defined in § 404.1717.
I have already posted about the omission of a definition for the term, "representational services," and the contradiction between the apparent requirement that one attorney or non-attorney representative perform all "representational services" for an entity and the basic concept of allowing entities to represent claimants.
Let me list other questions about how entities are to be treated that occur to me after reading this NPRM:
- What happens when we make the transition to allowing entities to represent claimants and firms begin changing the name of the representative on pending cases from an individual to an entity? Does this mean that the fee agreement process no longer applies, that the case is automatically a fee agreement case?
- What happens when an entity breaks up? Does the claimant no longer have any kind of representative? Does this mean that the fee agreement process can no longer apply, that the fee petition process automatically applies?
- How will Social Security deal with a situation in which an entity, which we will call Smith & Smith, breaks in half and each of the newly separated halves of Smith & Smith claims to be the true successor to Smith & Smith?
- What if the entity we are calling Smith & Smith is a partnership, but decides to become a professional corporation. Does the change in the formal nature of the business mean that it becomes a different entity, so that the fee agreement process no longer applies?
- What happens if an attorney practicing as a solo decides to join an established firm that already has multiple attorneys representing Social Security claimants? If the attorney substitutes the entity he or she has just joined as the representative of his or her clients, do these claimants now have a new representative, so that the fee agreement process no longer applies?
- What happens if two entities merge?
- To what extent can an entity allow employees who are not attorneys or otherwise eligible for withholding of fees to work on a case? Can the entity have someone not eligible for withholding of fees appear at the hearing? (I know this is another way of asking what is meant by "representational services", but this is a crucial issue.)
- What happens to an entity which breaks the rules? We know what happens to individuals who break the rules -- they can lose their right to practice before the Social Security Administration. Does an entire entity lose the right to practice before Social Security if one person acting on behalf of the entity breaks the rules? If not, how do we know whom to punish? Should the entity be able to walk away from breaking the rules merely by firing one person? What if an entity has a pattern of breaking the rules? At what point can the entire entity lose the right to represent claimants?
The big appointments, assuming Michael Astrue does not resign after the election, are Deputy Commissioner of Social Security and Inspector General.
- In 2005, 159.1 million workers had earnings taxable under the Social Security program. About 141.9 million had only wages, 9.6 million had only self-employment income, and 6.8 million had both.
- Social Security taxable earnings totaled $4.768 trillion, which includes earnings up to the taxable maximum of $90,000.
- Social Security taxes totaled about $591 billion.
- In 2005, 162.9 million workers had earnings taxable under the Medicare program. About 145.6 million had only wages, 9.5 million had only self-employment income, and 7.8 million had both.
- Medicare taxable earnings totaled $5.886 trillion.
- Medicare taxes totaled about $171 billion.
Social Security has also issued the "SSI Annual Statistical Report, 2007." The highlights:
Size and Scope of the Supplemental Security Income Program
- About 7.4 million people received federally administered payments in December 2007.
- The average monthly payment in December 2007 was $468.
- Total payments for the year were more than $41 billion, including about $4 billion in federally administered state supplementation.
Profile of Recipients
- The majority were female (56 percent).
- Fifteen percent were under age 18, 57 percent were aged 18 to 64, and 27 percent were aged 65 or older.
- Most (83 percent) were eligible on the basis of a disability.
- Almost 5 out of 10 recipients under the age of 65 were diagnosed with a mentaldisorder.
- More than half (56 percent) had no income other than their SSI payment.
- Thirty-five percent of SSI recipients also received Social Security benefits.
- Of the people receiving SSI benefits, about 2 percent were residing in a Title XIX institution where Medicaid was paying more than half of the cost.
- Despite their disabilities, about 357,000 recipients (5.7 percent) were working in December 2007.
Oct 9, 2008
I do not know what is going on, but I have to wonder if this NPRM is being held up due to the proximity to the election or the proximity to the change in administration. Everything about Social Security's handling of mental impairment cases was extremely controversial in the early '80s when Michael Astrue last worked at Social Security. Any significant tightening of these listings would be controversial today, perhaps controversial enough to catch the attention of the general public. Even if this is not the sort of thing that could have even a minor effect upon the election, an Obama administration might have very different feelings about this proposal than the Bush administration or a McCain administration. John McCain appears to have exhibited little sensitivity to mental health issues. A statement that McCain gave to the National Alliance on Mental Illness (NAMI) seems to me to display little enthuaism for helping the mentally ill and a strong tendency to emphasize substance abuse and personal responsibility when talking about mental illness. Contrast McCain's statement with the responses that Obama gave to a NAMI questionnaire.
Will this NPRM be published shortly after the election? Will this version of the proposal never be published because a revised version of the proposal will be resubmitted to OMB after the new President takes office? Will the election result affect what happens with the mental impairment listings? My best guess, worth every penny you paid for it, is that the NPRM gets published immediately after the election if McCain wins, but never gets published if Obama wins because a different proposal more favorable to the mentally ill will be submitted to the OMB once Obama takes office.
- Examining and proposing solutions to work disincentives in the SSDI, SSI, Medicare, and Medicaid programs.
- Revisiting the Ticket to Work Act to assess how it can better provide SSDI and SSI beneficiaries with the supports they need to transition into work.
- Considering opportunities to improve the results produced through the relationships between the SSDI and SSI programs and the workforce investment and vocational rehabilitation systems.
- Examining the sufficiency of SSDI and SSI benefit levels in light of available work opportunities for working-age people with disabilities.
- Determining the sufficiency of the “substantial gainful activity” level in the SSDI program and whether it should be indexed to average hourly wages or some other measure.
- Studying programs that would help young people join the labor force rather than the SSI rolls.
Streamline the Social Security Approval Process: The Social Security Administration (SSA) has been consistently under-funded, resulting in unconscionable delays in initial claims determinations and hearings for individuals applying for the Social Security Disability Insurance (SSDI) and Social Security Supplement Security Income (SSI) programs. The SSA's disability claims backlog has reached a record high of 755,000, up from 311,000 in 2000. The average wait time for an appeals hearing averages 505 days and, in some cases, can exceed three years. Barack Obama and Joe Biden believe that it is unacceptable to have a system in which individuals lose their homes or are forced to declare bankruptcy because the federal government cannot process their claims quickly enough. Barack Obama and Joe Biden are committed to streamlining the current application and appeals procedures to reduce the confusion that surrounds these important programs. As president, Obama will also ensure that the SSA has the funding it needs to hire judges and staff and to invest in technology to expedite final decisions. Obama supported the $150 million increase in the SSA's budget that was vetoed by President Bush this year. As president, he will continue to work to ensure that the SSA has the resources it needs for hiring and to more effectively process its caseloads.
Oct 8, 2008
All persons acting on behalf of a party seeking a statutory right or benefit must, in their dealings with us, faithfully execute their duties as agents and fiduciaries of a party. ...
A representative must ... Conduct the representative’s dealings in a manner that furthers the efficient, fair, and orderly conduct of the administrative decision-making process, including duties to:
A representative must not:
- This includes knowing the significant issue(s) in a claim and having a working knowledge of the applicable provisions of the Social Security Act, as amended, the regulations and the Rulings;
- This includes providing prompt and responsive answers to requests from the Agency for information pertinent to processing of the claim; ...
- Through the representative’s own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see § 404.911(b)), the processing of a claim at any stage of the administrative decision-making process;
- Attempt to influence, directly or indirectly, the outcome of a decision, determination or other administrative action by offering or granting a loan, gift, entertainment or anything of value to a presiding official, Agency employee or witness who is or may reasonably be expected to be involved in the administrative decisionmaking process, except as reimbursement for legitimately incurred expenses or lawful compensation for the services of an expert witness retained on a noncontingency basis to provide evidence;
- Threatening or intimidating language, gestures or actions directed at a presiding official, witness or Agency employee which results in a disruption of the orderly presentation and reception of evidence;
- Violate any section of the Social Security Act for which a criminal or civil monetary penalty is prescribed;
- Refuse to comply with any of our rules or regulations;
- Suggest, assist, or direct another person to violate our rules or regulations;
- Advise any claimant or beneficiary not to comply with any of our rules and regulations;
- Assist another person whom we have suspended or disqualified; or
- Fail to comply with our decision regarding sanctions.
If we are going to start down this path of regulating non-attorney representative conduct in a way that has some similarity to the regulation of attorneys, as the use of the word fiduciary implies -- and I think we should -- there are other duties that I think ought to be incorporated into the regulations, such as:
- Communicate with the client
- Maintain confidentiality of information received from the client
- Avoid sexual relations with the client
- Keep advertisements truthful
- Maintain independence from the influence of individuals or entities who are not professional representatives
To move on, a lot of what is in the proposal is vague, almost to the point of being unconstitutionally vague. Prompt and responsive answers? Unreasonably delay? Threatening or intimidating language, gestures or actions? Fail to comply with ANY of our rules or regulations? And why does this talk of rules AND regulations unless it intends to draw a distinction between the two, but the distinction is somewhere between elusive and non-existent, unless you want to include something like POMS as rules but not regulations. I think it would be ridiculous to discipline someone for violating something hidden away in the vast recesses of POMS. I know it can be hard to define a lot of this. Much falls into the category of "I know it when I see it," but this proposal is still awfully vague. Without something more specific Social Security will never be able to make charges stick unless the representative's conduct is really, really bad.
I am glad that this forbids representatives from assisting those who have been suspended or disqualified. I think it should also forbid assisting disbarred attorneys who have not been suspended or disqualified by Social Security.
I also suggest that a provision be added to forbid professional representatives from serving as institutional representative payees. There have been a number of criminal cases arising from what this proposal would call professional representatives serving as institutional representative payees. These two roles do not seem to mix well. It would be best to forbid this combination.
If I knew, I would tell you. I can say that inflation has been relatively high this year, so the COLA should be relatively high as well, probably about 6%. Keep checking back.
Once the COLA figure is released, it will be posted here promptly. Last year, the COLA numbers were released on October 25.
Agencies may have extra difficulty replacing departing employees and training existing ones during the next five months [while most of the government is operating under a continuing resolution that funds operations at the same rate as the last fiscal year]. ...
Richard Warsinskey, at the Social Security Administration office in Cleveland, is one manager who’s frustrated by the extended delay of his agency’s 2009 appropriation. During a CR, hiring slows down considerably, he said.
“We spend a lot of money recruiting, but we’re only able to hire in these short windows when we’re not under a CR. We should be able to hire when we have an opening and the right person,” he said.
The CR will frustrate the agency’s ability to catch up on a 750,000-case backlog for benefits claims, Warsinskey said. Cases wait more than 18 months on average to be heard by administrative law judges because not enough staff members are on hand to prepare the cases for review.
Congress appropriated $150 million more than the president requested in 2008 in order to reduce that backlog, said Jessica Klement, government affairs director for the Federal Managers Association.
“Constituents were calling because they weren’t getting their benefits, and they were dying while they waited,” she said.
The extra money in 2008 allowed SSA to hire nearly 200 administrative law judges and make a dent in the backlog, although that progress may be lost after five months under a CR.
For now, SSA will cut back on spending for needs such as replacing aging computers and software. It will also order fewer office supplies, keeping a bare minimum on hand, said Warsinskey, who until recently served as president of National Council of Social Security Management Associations.
There also will be more training by satellite and less travel, he said.
Oct 7, 2008
Let me start by saying that my firm is already scanning virtually everything that comes into our office. We regularly upload records using Electronic Records Express (ERE) and we file almost all of our appeals electronically. I am not afraid of technology. My firm is already doing what the proposed regulation would demand of other Social Security attorneys.
My biggest concern with this proposal is that Social Security is not ready for it. The agency has consistently and badly underestimated how long it takes for it to roll out new technology. While there are those at Social Security who would claim that the agency has already rolled out the electronic file, my experience is that Social Security is a long way from finishing working out the bugs in the electronic file. Let me give an example of the problems that Social Security has that are already impacting those who cooperate with the agency. At the moment, there are many complaints in North Carolina from attorneys who are unable to fax records into electronic files because they constantly get a busy signal. My fear is that Social Security will adopt this regulation and then find that its systems are overwhelmed by volume for which it is unprepared. While ERE is working OK for now, my guess is that it is susceptible to being overwhelmed once more people start to use it, just like the fax lines. I have no confidence that the bandwidth is there now or that it will be there any time soon.
Since the beginning of the Bush Administration, the Social Security Administration has been on a crash program to convert to digital. The reason has been simple. Social Security's management can see that its workloads are getting larger and larger every year, yet it has been made clear to agency management, if not to the public, that staffing increases are absolutely out of the question. It does not matter how bad things get at Social Security, the agency is not getting more personnel. Social Security's staff must ratchet downwards regardless. That has been the polar star for Social Security upper management. Agency management has been forced to seek other means for dealing with its workload. The only option was to believe, or at least hope, that a digital conversion would result in massive productivity gains. This has not worked so far. There is scant reason to hope that it will work.
It may take quite some time for high level management to wrap their minds around it, but there is a lot of reason to believe that Social Security will be able to increase its staffing levels considerably in coming years. George W. Bush will be out of the White House in less than four months. Unless there is a political earthquake Democrats will have much more certain control of Congress come January. Even if John McCain is elected President, which now seems unlikely, the political equation for Social Security's operating budget is going to change radically in the very near future.
Productivity gains from going digital are non-existent so far. You might ask how I know that there have been no productivity gains from going digital. There have been no studies released showing the effects of going digital on productivity at Social Security. The fact that Social Security has released no studies showing the effects of electronic files on productivity tells me all I need to know. Social Security would not be shy about telling the world if it had studies showing that the electronic file was helping productivity. No studies being released means that whatever studies have been done have shown results that would embarrass Social Security or that Social Security is afraid to even do studies because they do not want them leaking out.
My message to Social Security is, slow down on this digital conversion. Being overhasty has caused the agency nothing but problems. There is scant evidence that going digital is ever going to solve the Social Security's workload problem. It is too late to stop making the conversion, but there is no more reason to rush it, especially since additional staff is likely to be coming,by the 2010 fiscal year, at the latest.
Social Security ought to get its plan to allow attorneys and representatives to access their clients' files online and working well before it goes ahead with these proposed regulations. To my mind, it is basic fairness for this to be in place before Social Security starts making additional demands on those who represent claimants. If the Social Security Administration wants this degree of cooperation from those who represent claimants, it ought to be offering something in return. As a practical matter, by the time online access to claimants' files is working well, the bandwidth should be there to make ERE work efficiently and the fax machine and other issues with the electronic file should be worked out.
Social Security should get back to implementing new technology in a slow steady way. Knock off the crash plans. They have not worked and they are no longer necessary.
Oct 6, 2008
There have been many complaints from Democrats that the Republican party has been attempting to use the levers of government to make it more difficult to register new voters and to suppress Democratic turnout at the polls. Whether fair or not, this press release will be perceived to be part of that campaign. I think that issuing the press release was an extremely unwise move, especially if Michael Astrue has any ambition to continue serving as Social Security Commissioner if Banack Obama is elected President.
Michael J. Astrue, Commissioner of Social Security, on Friday contacted the Secretaries of State for Alabama, Georgia, Indiana, Nevada, North Carolina and Ohio and asked them, based on extraordinarily high levels of requests to SSA, to review their procedures to ensure that they are fully complying with applicable federal laws relating to the registration of voters. Under the Help America Vote Act of 2002, most States are required to verify the last four digits of the Social Security number of only those new people seeking to register to vote who do not possess a valid State driver’s license.
“It is absolutely essential that people entitled to register to vote are allowed to do so,” Commissioner Astrue stated. “While there may well be legitimate explanations for the high levels of requests, I am confident that the States we have contacted will review their procedures promptly to ensure that they are in full compliance with federal law.”
Update: A number of people are telling me that I am misreading this press release, that Social Security's only intent is to help voter registration personnel who may be unnecessarily verifying Social Security numbers. Yes, one can read this press release in that way and that is probably what was intended, but someone who really wanted to help voter registration officials might not have sent out a press release at all and certainly would not have sent out a press release which basically says "Why are you registering so many new voters? Are you doing something illegal?" Voter registration laws are not Social Security's area of expertise. Telling people whose area of expertise is voter registration that they do not know their jobs is arrogant. This is especially obnoxious when it is combined with a strong insinuation of illegal behavior. I think anyone reading the press release would have to think that whoever wrote it was dismayed by all the voter registration going on. This press release happened when Michael Astrue was confronted by criticism in a politically charged environment. Very few people were even aware of the criticism, but Astrue went ballistic in a press release. Now think what happens when Astrue is forced to work with a President, a Congress, a Deputy Commissioner and an Inspector General who are all members of the Democratic party. That is what happens if Barack Obama is elected and Astrue elects to serve out his term as Commissioner. Michael Astrue's personality is not suited to working with others who disagree with him and who distrust him. Throughtout his career he has been quick to acuse others of impropriety when they disagreed with him.
The Commissioner said that his agency may be faced with operating under a year long continuing resolution (CR) for the 2009 fiscal year (FY), which would freeze the agency's budget at the . He promised a 1-1 replacement ratio for departing employees of the Office of Disability Adjudication and Review (ODAR), which is where the Administrative Law Judges (ALJs) work, but only a 1-3 replacement ratio for the rest of Social Security. It is not clear from the article, but Astrue must have been talking about the staffing replacement ratios under a year long CR. I suppose the Commissioner and his staff need to prepare for the worst, but I cannot imagine that the Commissioner expects a year long CR if Barack Obama is elected.
The Commissioner talked of opening five new hearing offices in areas of highest backlogs, but did not say where those would go.
Astrue told NCSSMA that he would like to see his agency go from its current 61,000 employees to 65,000 employees, but did not say when he would propose a budget that would accomplish this.
The newsletter also says that Linda McMahon, Social Security's Deputy Commissioner for Operations, told the group that the agency had suffered "unexpected contract increases" of $450 million! No explanation was given. $450 million might even be enough to pay for those extra 4,000 employees that Commissioner Astrue talked about.
An article in the newsletter talks of a serious shortage of computer workstations at Social Security field offices. A survey showed that 44% of NCSSMA members were reporting problems and 24% reported this to be having a somewhat to very significant impact on waiting times. The San Francisco region is having the most problems.
Oct 5, 2008
A former Renton man accused of embezzling Social Security payments from hundreds of disabled clients will be returned to Seattle from San Antonio, where he was arrested last week, according to the U.S. Attorney's Office.
Maurice D. Brooks, 46, through his nonprofit company Professional Payee Services, is accused of stealing more than $300,000 from the accounts of more than 300 disabled Social Security beneficiaries while acting as their personal representative and being responsible for seeing that their daily needs are met, according to the U.S. Attorney's Office.
Brooks worked as an "organizational representative payee," the designated gatekeeper for Social Security payments going to his clients who don't have family or anyone else to help them with their finances. The Social Security Administration allows ORPs to deduct a fee of up to $68 a month for each beneficiary the ORP represents, said Assistant U.S. Attorney Johanna Vanderlee. In return, the ORP ensures that the payee has adequate funds for food, lodging and clothing.
Oct 4, 2008
The continuing resolution recently passed by Congress contained a pay raise for federal employees, but no relief for the beleaguered Social Security Administration. Here is a little something on the situation from Brittany Ballenstedt at Federal Executive:
"I applaud Congress for approving a fair and adequate pay raise for federal employees in 2009," said Darryl Perkinson, president of the Federal Managers Association. "The 3.9 percent raise sends the message that the work they do for our nation is to be valued and rewarded."
Perkinson added, however, that the passage of the stopgap spending measure would force the Social Security Administration, which provides benefits to 60 million people, to operate on fiscal 2008 funding levels. With a backlog of more than 767,000 requests for disability hearings, he said, an increase in funding is necessary to hire additional staff and bring processing times to less than 500 days.
"The ongoing lack of adequate staffing levels and resources have directly contributed to the backlog," Perkinson said. "For the next six months, and possibly the remainder of fiscal year 2009, SSA will be forced to take a step backwards, instead of moving forward. Simply put, the American people deserve better service."
Oct 3, 2008
Today I am going to ask some questions about a subject that I think the proposal should address, but do not, claimants who change their attorney or representative:
- What happens with the fee when a claimant decides to fire his or her attorney or representative and hire a different one?
- What happens with the fee if an attorney or representative fires his or her Social Security client or is forced by circumstances to withdraw from a Social Security case?
- What happens with the fee if a Social Security claimant moves to a different area of the country and needs to change to a different attorney or representative?
- What happens with the fee if an attorney or representative dies and a Social Security claimant is forced to seek another attorney or representative?
I have clients who leave me and hire someone else and I pick up clients who have left other attorneys, so I see both sides of this. It is a pain to take a case almost to the end and have the client move far away, leaving me with the difficult task of obtaining a fee through the fee agreement process, when I will not even know when or if the claimant wins. I hate to give up on getting a fee in these cases when I have done most of the work, but I do most of the time. It is also a pain to take on a case near the end, do virtually all the work and have to do it quickly, and then have some other attorney who may or may not have done much work sticking his hand out demanding a good part of the fee. In either case, the fee agreement process is a pain for everyone including Social Security.
I think the interests of justice would be better served if claimants could change their attorney or representative freely and the attorney or representative who ends up with the case could just get the full fee under the fee agreement process. The current situation just makes it too difficult for a claimant to change to a different attorney or representative, because other attorneys or representatives do not want to get involved with the case because of the attorney fee issue. The emphasis should be on letting the claimant select who they want to represent them without being restrained artificially by Social Security's rules. If the change is made as I suggest, there will be times when I will think it terribly unfair to me. There will be other times when some might think I would receive a windfall, but on the whole I am confident that everything will come out in the wash.
Frequently, I talk with the clients of competent attorneys who are mad at them because of how long things take at Social Security and want to switch to me. I often tell them that my clients are probably calling their attorney because they are mad at me for the same reason. No one wants to encourage claimants to switch to a different attorney or representative because of something the attorney or representative cannot control, but there are some attorneys and representatives out there who do not do their jobs. Their clients are unhappy because they cannot get their calls returned and the attorney or representative does not know what they are doing and are not doing what needs to be done. At the moment, it is terribly difficult for claimants in this situation to change to a different attorney or representative because other attorneys and representatives do not want the fee hassles that come when a claimant switches to a different attorney or representative. This is wrong. I think it is more important to allow claimants to change their attorney or representative freely than to protect attorneys or representatives from clients who want to change to someone different.
Even if Social Security sticks to its current position, it needs to clarify one thing. What happens if the claimant switches to a different attorney or representative and the first attorney or representative agrees to waive the fee because he or she makes an agreement with the new attorney or representative on splitting the fee. There have been suggestions from Social Security that there is something unethical about doing this, that each attorney or representative must file a fee petition and that Social Security must settle how much goes to each attorney or representative. I find this preposterous. If the claimant knows what is going on and approves of it and the fee stays the same, what difference does it make to Social Security how the money is divided? There is nothing in the Social Security Act or regulations that requires such a result. It would be a ridiculous way of further impeding claimants who want or need to change their attorney or representative. The uncertainty that some attorneys or representatives now feel exists on this issue makes it difficult for claimants who need to switch to a different attorney or representative. I have plenty of respect for the attorneys who work for Social Security. I once worked as an attorney for Social Security. However, there are some realities of law practice that one cannot experience working for Social Security. We should not be placing an unnecessary roadblock in the way of a claimant who needs to switch to a different attorney or representative because of some theoretical concern of an attorney who has never been in private practice.
Oct 2, 2008
The Social Security Administration’s plan to just down its online systems could hinder 40 states in verifying voter registrations, Secretary of State Susan Bysiewicz said Thursday."
I urge Social Security Administration Commissioner Michael J. Astrue to reconsider the timing of the National Computer Center Annual Building Shutdown from Oct. 11 to 13, 2008," said Bysiewicz. "The shutdown will result in the inaccessibility of online system services just weeks before the Nov. 4 elections. More than 40 states across the country have voter registration deadlines in October, and where state law requires a match against the SSA database, thousands of citizens could be disenfranchised with the system down at such a critical time."
Below is a legislative bulletin from Social Security, but please notice the footnote.
On September 29, 2008, the House suspended the rules and passed H.R. 6600, the “Medicare Identity Theft Prevention Act of 2008,” by voice vote. The bill now goes to the Senate. 1
Provisions of interest to the Social Security Administration are described below.
• Would require the Secretary of Health and Human Services, in consultation with the Commissioner, to establish cost-effective procedures to ensure that Social Security numbers (SSNs) or derivatives thereof would not be displayed on or embedded in Medicare cards.
• Would be effective with respect to Medicare cards issued on or after the effective date determined by the Secretary but in no case would such a date be later than 24 months after the date adequate funding is provided (see penultimate bullet below).
• Would provide that all Medicare cards with SSNs be reissued under the new requirements no later that 3 years after effective date specified above.
• Would allow individuals to apply for reissuance of Medicare cards before the general reissuance effective date under exceptional circumstances as the Secretary would specify.
• Would require the Secretary, in consultation with the Commissioner, to develop an outreach program about the new Medicare cards.
• Would require the Secretary, in consultation with the Commissioner, to submit a report to Congress with options for implementation of the requirements, including costs estimates and justifications of the costs associated with each option. The report would be required no later than 1 year after enactment.
• Would provide that the requirements would not take effect until adequate funding is provided.
• Would authorize, after the report is submitted, appropriations to the Secretary and Commissioner for administrative expenses for each of the 5 fiscal years related to implementation of the bill.
1 It is unclear as of the date of this Bulletin whether the Senate will take action on the bill before the 110th Congress adjourns.
For over fifteen years the Social Security Administration has scheduled a shutdown of its National Computer Center on Columbus Day weekend for repairs and maintenance; it has only been postponed once and that was due to special workloads created by Hurricane Katrina. The repair and maintenance is a major production for the agency's system and facility experts that involves scheduling of overtime for key staff, committing contractors to extremely tight turnaround times for the work, and other complexities. As the antiquated National Computer Center has frayed over the years, the importance of timely repairs and maintenance has increased significantly.
Among the many new responsibilities that Congress has added to Social Security's workloads is verifying a small percentage of voter registrations. This year there has been unwarranted concern that the annual shutdown will somehow interfere with voter registration. The system will be up and running until midnight Friday night, so there is plenty of time for voters registering Friday, October 10 to be verified. Voters registered on Saturday, October 11 or Sunday, October 12 can be verified starting Monday, October 13 at 5 a.m. EDT, more than three weeks before the election. When state and local election registrars are working on Columbus Day, Social Security systems will be available to verify registrations, and the agency will be providing its usual same-day service. The expected increased volume of transactions on Monday does not present a problem for prompt response.
Delaying the shutdown into 2009 would pose a small, but not insignificant, risk of a major interruption of service for the hundreds of millions of Americans who rely on our computer systems to provide retirement, disability and survivors benefits, Medicare benefits, employment verification and other services. We have recently indicated in our new strategic plan that Congress needs to support a new National Computer Center, which would help us provide services without interruption.
"As many Americans are enjoying Columbus Day weekend, the hardworking men and women of the Social Security Administration will be working intensely to satisfy every reasonable expectation of service, including voter registration verifications," Commissioner Astrue stated. "I regret that people unfamiliar with the facts of this situation have sought to create a partisan issue where there is none."
Oct 1, 2008
I hope that no one at Social Security has called the White House to ask what to do about this.
There are a couple of caveats. The claimant must request waiver. The Social Security field office can decide not to give an administrative waiver if they really think the claimant is a bad actor. What Social Security calls "double check negotiation" (DCN) overpayments are never supposed to be waived. A DCN happens when the claimant reports that his or her monthly check never arrived. Social Security tells the Treasury to issue a replacement check. The claimant then cashes the original check plus the replacement check. That can happen by accident because the claimant is confused, but there are plenty of cases where the same claimant does this repeatedly or where a rash of DCNs happen in one area.
We propose to amend several regulations and provide new regulatory language to address inefficiencies in the hearings process. The amendments include provisions clarifying that claims denied by state Disability Determination Services and other adjudicators for “failure to cooperate” are technical denials rather than medical determinations, and providing flexibility in setting the time and place of hearings. We also intend to propose new regulatory provisions that will allow ALJs to dismiss a request for a hearing where a claimant has abandoned his or her claim and to specify regulatory standards that require ALJs to clearly articulate their rationale when issuing decisions on remanded claims.OMB must approve the proposed regulations before Social Security can publish them in the Federal Register. Probably, this proposal would allow an ALJ to dismiss a request for hearing if the attorney shows up but not the claimant. Would this proposal mean that "failure to cooperate" denials could not be appealed? What does "flexibility in setting the time and place of hearings" mean? Also, I thought Administrative Law Judges (ALJs) were already supposed to "clearly articulate" their rationales. How does adopting a regulation saying that change the situation?
Sep 30, 2008
I'm somewhat appalled that an attorney -- especially a potentially not-very-good one -- can take a hefty amount of attorney's fees from a client in a totally simple case. The opinion here involves three cases from the law firm run by Lawrence D. Rohlfing (in Santa Fe Springs), which does social security cases and that contracts with its clients for the statutory maximum of 25% of the past-due benefits award. In the first case, an attorney affiliated with Rohlfing's firm -- Brian C. Shapiro -- spent less than 20 hours (in addition to less than five hours of paralegal time) in simple proceedings and obtained an award of $123,891.20, twenty-five percent of which would be $30,972.80. In other words, over $1500 an hour. Not bad for someone who's a 1997 graduate of Whittier Law School. Similarly, in the second case, another 1997 graduate of Whittier, Young Cho, also spent less than twenty hours (and less than five hours of paralegal time) to obtain an award the 25% contingency of which would be around $20,000.00. And in the final case, Denise Haley, an older graduate of Loyola Law School, worked 25.5 hours (plus 1.1 hours of paralegal time) to get an award the 25% contingency of which would be over $43,000; in other words, around $1700/hour. And, remember, these are not tough cases -- they're social security matters, and ones that (tellingly) take around 20 hours total to resolve. ...Notice the extreme degree of condescension here even when the author knows essentially nothing about the field of law or its economics or the people involved? I wonder if Professor Martin feels like he is slumming by teaching at the USD. I guess that USD must have a much more highly highly regarded law school than Whittier or Loyola, but California readers may be able to help on that one.
Do I feel the same way about other lawsuits -- say, a difficult and hotly contested medical malpractice action? Honestly, no. There, for some reason, even if the attorney ends up making $1000+ an hour, I feel like they may well have earned it. But social security matters -- and ones that take less than a couple dozen hours at that? There's just some part of that that feels different to me.
I could write a good deal on the subject, but the bottom line is that attorneys are hardly eager to do federal court work in Social Security cases. Only a relatively small percentage of attorneys who represent Social Security claimants administratively even want to do the federal court work. I think a reasonable person might wonder if adequate economic incentives are in place to attract attorneys to this field of practice. Basically, if it is so easy and so lucrative, why do so few attorneys get involved? I would suggest that is is because of decisions such as Crawford.
Apparently, this is not the first time that Martin has made comments that others found offensive. Professor Martin does not allow comments on his blog, but you can e-mail him.
Sep 29, 2008
Lawrence E. Filson, 85, former deputy legislative counsel for the U.S. House of Representatives and the principal draftsman of all the major Social Security laws between 1954 and 1989, died Sept. 21 of complications from Alzheimer's disease at the Collingswood Nursing and Rehabilitation Center in Rockville. ...
He drafted the original Medicare, Medicaid and Supplemental Social Security laws. ...
Sep 28, 2008
Sep 27, 2008
Sep 26, 2008
Entity means any business, firm, or other association, including but not limited to partnerships, corporations, for-profit organizations, and not-for-profit organizations. ...If I understand this correctly, I am simultaneously a principal representative, a professional representative and a representative, while my law firm is simultaneously an entity, a principal representative, a professional representative and a representative! Was someone trying to write this in as confusing a way as possible? How can a corporation be any kind of representative? That takes a flesh and blood human being. What is the point of all these definitions and what is the difference between them? I have read the entire NPRM in the Federal Register and I do not comprehend what was intended. How did something so poorly drafted get through Social Security's vetting process?
Principal representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements under § 404.1705(b), who has been appointed to represent you in dealings with us and who is responsible for disseminating information and requests from us to you and your other representatives, if any.
Professional representative means any attorney, any individual other than an attorney, or any entity that holds itself out to the public as providing representational services (see § 404.1735) before us, regardless of whether the representative charges or collects a fee for providing the representational services.
Representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements of § 404.1705(b), whom you appoint to represent you in dealings with us. For purposes of §§ 404.1740 through 404.1799, the term representative also includes an attorney or a non-attorney whom you have not appointed as your representative under the previous sentence but who works for or on behalf of an appointed representative and helps represent you in your claim before us.
And to repeat a concern that I have already written about, why is there no definition given for "representational services", a key term in the NPRM?
You may comment on this proposal online and I encourage you to do so.
I am happy for Mr. Kirkland, but what about all those other claimants who are not the subject of a television report? When Mr. Kirkland is allowed to jump ahead of them in line, they just get pushed back. That is just not fair.
My crystal ball is cloudy, but this looks like the sort of thing that a Social Security Commissioner would allow only if he were not planning to stay around much longer.
Sep 25, 2008
We read Gisbrecht not to prohibit a district court from making lodestar-type calculations, but only from relying exclusively on such calculations and refusing to consider the contingent-fee agreement. Here, the district court noted that Gisbrecht controls, and considered the contingent-fee agreements. The district court, however, concluded that substantial reductions in the fees under those agreements were necessary for the fees to meet the statutory standard of reasonableness. Those rulings complied with the requirements of Gisbrecht.
Unlike the dissent, we do not read the Supreme Court’s Gisbrecht opinion as mandating any particular procedure or format that the district courts must follow in determining a reasonable attorney fee in social security cases. The Court did not, as the dissent apparently concludes, prescribe that in every case the district court mechanically must begin its analysis with the twenty-five percent contingent fee and then make any reduction in that amount that appears appropriate in the particular case.
As we have noted above, what Gisbrecht held was that “§ 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements.” 535 U.S. at 808. The methodology by which a district makes such reasonableness determinations is for that court to select in the exercise of its sound discretion. In making these determinations, it would be preferable for a district court to begin with the contingency-fee agreement and decrease from there, rather than increase from a lodestar calculation. It does not seem to be an abuse of discretion, however, to use the latter approach as long as the court takes the necessary factors into consideration.
- June 2008 63,622
- March 2008 60,465
- December 2007 61,822
- September 2007 62,407
- June 2007 62,530
- March 2007 61,867
- December 2006 63,410
- September 2006 63,647
- September 2005 66,147
- September 2004 65,258
- September 2003 64,903
- September 2002 64,648
- September 2001 65,377
- September 2000 64,521
- September 1999 63,957
- September 1998 65,629
The proposal would make direct deposit of fees for representing claimants mandatory. Most attorneys I know would be delighted to receive their fees by direct deposit, except for one problem. How would they know which direct deposit goes with which client? The Department of the Treasury is not sending enough information with direct deposits to allow identification of the client involved. This is already a pain when we deal with payments under the Equal Access to Justice Act (EAJA), but we receive far fewer of those checks. The current maximum fee, after deduction of the user fee is $5,221. If I receive a direct deposit for $5,221 I have no idea what client the fee is for. Social Security's response to this question to this point seems to have been "Uh, uh, uh, why don't you ask Treasury?" I find that attitude unhelpful.
Treasury is not the one proposing this regulation. I am not sure how much clout Social Security will have in getting Treasury to resolve this problem, but I am pretty sure that it is more clout than I and others who represent Social Security claimants will have with Treasury. Social Security needs to get this resolved before they make direct deposit of fees for representing claimants mandatory.
You may comment on this proposal online and I encourage you to do so. This is a major proposal. Everyone who represents Social Security claimants needs to be studying it carefully and submitting comments.
Trial begins today in federal district court in Boston against insurance giant Unum Group (NYSE: UNM - News) on whether Unum is dumping tens of thousands of disability claims onto the overburdened Social Security system, costing the government millions of dollars.
The court is hearing a "qui tam" lawsuit brought by a whistleblower on behalf of the federal government involving Unum's alleged practice of requiring claimants to file first for Social Security Disability Insurance benefits even when they clearly didn't qualify. If they didn't apply to Social Security, Unum would cut their benefits.
Social Security has much stricter criteria for disability benefits than private insurers. To qualify for disability payments from private insurers, people must be unable to perform their current job; to qualify for Social Security benefits, a claimant needs to be unable to work at all.
"Our lawsuit exposes a practice that creates additional burden on an already overwhelmed Social Security program and also hurts taxpayers," said Colette G. Matzzie, a Washington, D.C., attorney with Phillips & Cohen LLP, which represents the whistleblower. "We're confident that the court will find merit in our case."