Dec 23, 2011

New Regulations

     From the new regulations published today in the Federal Register:
Sec. 404.903 Administrative actions that are not initial determinations. ...
(g) Refusing to recognize, disqualifying, or suspending a person from acting as your representative in a proceeding before us  ...


Sec. 404.1740 Rules of conduct and standards of responsibility for representatives.
All attorneys or other 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 provide competent assistance to the claimant and recognize our authority to lawfully administer the process. The following provisions set forth certain affirmative duties and prohibited actions that will govern the relationship between the representative and us, including matters involving our administrative procedures and fee collections.
(2) All representatives must be forthright in their dealings with us and with the claimant and must comport themselves with due regard for the nonadversarial nature of the proceedings by complying with our rules and standards, which are intended to ensure orderly and fair presentation of evidence and argument.
     I have only conducted a cursory review of these regulations. I note a harsh, peremptory tone to the responses to the public comments. About the only reassuring thing it says is that "We are not asking anyone to disclose information protected by the attorney-client privilege or the attorney work-product doctrine." I have not seen in these regulations any explicit requirement that a representative must submit all medical evidence that comes their way. 
     They do not define the word "fiduciary." The normal meaning of this word would prevent the practice of helping insurance companies collect money owed to them by Social Security claimants. I will be surprised if Social Security is willing to enforce this.

9 comments:

Eric Schnaufer said...

There is of course no requirement to submit "all" evidence. That would be irrational. The regulations change the rule because they rescind the Agency's longstanding practice to recognize that an attorney representative may rely on a state-bar rule not to submit certain kinds of evidence. Prior to today's regulations, an attorney representative could rely on a state-bar rule not to submit certain kinds of evidence. The Agency has always had the authority to take away that defense. It took it away today.

Anonymous said...

I was wondering about this ^ as well. But where in the updated regs are you seeing this change (rescinding the reliance on state bar submission rules)? Thanks.

Eric Schnaufer said...

Search the 12/23/11 final regulations for the words "State bar." And the Agency did not rescind any regulation in that respect. The prior policy was not found in a regulation. The 12/23/11 final regulations -- or more accurately the comments thereto -- change that policy. The Agency always had the authority to override State-bar rules. It did so today.

Anonymous said...

Not a lawyer here, so forgive my ignorance. But if state bar rules did not require submitting all evidence, and if those rules prevailed in SSA hearings (up until today at least), then what exactly is Binder being investigated for? Why is failure to submit all evidence even an issue here?

Anonymous said...

How about getting rid of non attorney reps who have little to nothing to lose? As much as I like to say my personal ethics guide me, any risk to my law license keeps me on the straight and narrow. Perhaps too straight and narrow for my own good.

Anonymous said...

"..must comport themselves with due regard for the nonadversarial nature of the proceedings "

Does this apply to ALJ's as well? Sure it does. SSA doesn't want to hear those stories though..

Eric Schnaufer said...

The WSJ article about B & B is not a legal analysis. The article does not take any position regarding the law. The law is irrelevant. The point or implication of the article is that claimants who are not disabled are being found disabled because evidence of non-disability was not submitted. No legal analysis is provided because none is needed or even relevant. Of course the implication is wholly unsupported and obviously untrue to any honest person familiar with mass disability adjudication. Looking for that one claimant who should not have been found disabled based on withheld evidence is like looking for instances of voter fraud in a state seeking to suppress voting by the poor and minorities. When that one guy is found who voted twice, it becomes obvious that voting fraud is not even an insignificant problem. This is not to say that if the Agency gave forty employees one year to review all of B & B's cases that no non-disabled beneficiaries would be found. They would be because the expenditure of such resources would never be conceded to have been a fiasco. And the Agency can always find reasons to disagree with any allowance in at least a small minority of claims. That is why ALJ hearings are held -- to make fact-specific judgments, not identify some metaphysical truth of disability.

Anonymous said...

I always love the cases where a treating physician indicates in treatment notes that he filled out rfc forms for a patient yet those forms never seem to make it into evidence. Hmmmmmm....i wonder why.....

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