Nov 30, 2015

Hey, Heritage Foundation, No Problem, As Long As You Treat Me Like Other Businesses

     The Heritage Foundation, a right wing advocacy group, has released an Issue Brief calling for an end to withholding of fees for representation of Social Security disability claimants. Here's an excerpt:
... Direct payment for SSDI [Social Security Disability Insurance] representatives establishes a dangerous standard. If increased access or guaranteed payment is sufficient reason for the government to intervene in private transactions, what will prevent all sorts of additional intrusions by the federal government into individuals’ lives? Should the government also provide direct payment to apartment building owners, car dealerships, and colleges?...
The fact that many service providers find it difficult to collect payment from their clients does not mean that the federal government should become the fee collector. State law provides avenues, such as small claims court, for individuals and businesses to obtain their just due.  ...
     I've got no problem with this, Heritage Foundation, as long as you afford me the same "avenue" afforded other businesses in similar situations -- a lien. Take your car to a car dealership to be repaired and the mechanic has a lien -- meaning the mechanic can hold onto your car until you pay for the repairs. Hire a contractor to make repairs on your house and then don't pay the bill -- the contractor has a lien on your house which can be collected with foreclosure if necessary. Finance purchase of a car and stop making payments on the car -- the lender can send out the repo man since the lender has a lien on the car. Hire an attorney to represent you on a personal injury claim after you're injured because some other driver runs a red light and you get a $25,000 settlement -- you can't just take the money and stiff the attorney because the attorney has a lien on the settlement. 
     The Social Security Act forbids most liens on Social Security payments, preventing the lien that an attorney would otherwise have on the back benefits of a client they represent. The law forbidding liens on Social Security benefits has a prominent exception for federal student loans so, yes, a lender associated with a college can get direct payment from Social Security. There's also an exception for debts owed the federal government and for child support. Want to end those exceptions while you're at it, Heritage?
     Liens are an essential part of our legal system and our whole economy. They date back centuries. They're part of our legal heritage. Without liens much of our modern economy would become impossible. While the Heritage agenda often has an anarchist flavor, I doubt that they want to abolish liens.
     If the anti-assignment provision in the Social Security Act had an exception allowing a lien on back Social Security benefits for claimants represented by an attorney, I've got no problem with doing away with the current attorney fee structure at Social Security. 
     How would an attorney lien on back Social Security benefits work? Social Security would issue a joint check for the back benefits made out to the attorney and client. They would each endorse the check and the attorney would be able to take out his or her part and pay the rest to the client. That's the way it works with personal injury settlements. It works that way because the attorney has a lien on the settlement. Why shouldn't attorneys who represent Social Security claimants have the same legal rights as other attorneys and other businesses generally?
     By the way, take a look at the chart that Heritage included in their piece. It looks like the business of representing Social Security claimants hasn't been too profitable lately anyway.
     Also, by the way, it's past time to adjust the cap on fees under the fee agreement process. It's now $6,000 but should be more than $7,000 if adjusted for inflation. Social Security can slowly achieve Heritage's goal of choking off attorney representation of claimants by leaving the cap at $6,000 indefinitely. In fact, it appears that's what's happening. It's time to lift the cap. The law is intended to allow claimants to have access to representation. Implement the law's intention.

25 comments:

Anonymous said...

Let the free market dictate attorney client relationships, please Heritage. I'd like to earn a better percentage than the statutory cap. I would have zero problem with a straight 1/3 attorney fee. I would waive direct payment if the government would get out of my attorney client relationship. But I doubt Heritage would want that for me. They want direct fee removed to lower representation rates and lower approval rates. Their libertarian focus should be on the contract angle of the program. I pay for insurance, I should have my claim paid if I become disabled. Or hit a car. Or get sick. Or ....

Anonymous said...

What about the user fee? I'd be curious to know how much Social Security recoups from that user feel they lop off each of my fee checks. With no automatic fee payment, SS loses this extra amount which would instead be paid out to the claimant.

Anonymous said...

The current system appears to be set up to benefit lawyers, doctors and beaurocrats at the expense of the disabled! Senators and Congressmen complain about alleged fraud ("I have this friend who knows someone who thinks someone else is on SSDI who shouldn't be...") while the time waiting for a hearing increases and denial percentages increase. We need to overhaul the system so those who are disabled get the benefits they need in a timely manner. It shouldn't be require more evidence to prove disability than to convict someone of murder!

Anonymous said...

I like how it says "12.8 billion pocketed by SSDI representatives." They are trying to evoke a visceral response to the misleading idea that the representative pay someone increases the money coming out of the program.

Anonymous said...

This author Rachel Greszler, is a joke. And this is typical greszlereese. Google her. Since January 2015, she's penned over a dozen of attacks on SSA and espouses dumping disability into the private market with "flat rate" coverage. Her work is biased and agenda driven. In my opinion, the woman has no credibility or compassion for the disabled.

Anonymous said...

Anon 3:12

I suppose somebody has to be Misinformer-in-Chief on disability issues for the Heritage Foundation. If not her, I'm sure the Koch brothers would just get someone else to be a shill for their agenda to slash help for people with disabilities.

Anonymous said...

Doesn't the government provide direct payment to colleges when disbursing Pell grants and federal educational loans? The government certainly doesn't issue a full check to the student and trust that the student will pay the college.

Anonymous said...

heritage foundation....another reason most of my Republican friends will be voting "the other direction".

Arizona Jim said...

I'd like to see Windfall set aside for paying of fee's. That would be fair because many are forced to collect SSI during the long delays in obtaining SSDI benefits.

Dan Smith said...

So the Heritage Foundation's argument is obviously just a pretext for taking a shot at reps.
I can't say i agree with increasing the max fee considering the sorry state of representation provided by the big time players in this game.

What's everyone's thoughts on the ALJ having more (or any) control over what would be an acceptable fee on a case by case basis? I know a judge who used to reduce the rep's fee if documents were missing at the hearing. I understand he got a lot of pushback from management for this policy. Does anyone know the history here? I'm wondering why alj's never exercise any authority when it coems to fees.

Anonymous said...

Dan Smith, the agency is overburdened as is. The ALJ's don't need to be wasting time reviewing fees on a case by case basis. Do you really want them to review your fees on a case by cases basis? You post a lot of nonsense.

Anonymous said...

A representation/fee agreement is simple: between the attorney and client. Do not really see how SSA needs to be involved. Now if reps were charging outrageous contingency fees (50 percent or more) then the courts could step in.

Personal injury is usually around 33-50 percent. Why can't SSD lawyers charge this? Smh.

Anonymous said...

Personal Injury lawyers do a lot more than Social Security lawyers, that is why they get more money. They are REAL Lawyers... Non-attorneys can't do their work. Think about it.. A high school graduate can and sometimes does your work.

Dan Smith said...

@11:47

i'd be fine with my fees being reviewed. then again, i perform actual advocacy on behalf of my clients. methinks you doth protest too much.

Anonymous said...

Even the ALJs that are more...active, shall we say...with fees, let us not forget that Regions, specifically RCALJs, are very much involved with all things fee-related and are surely not interested in going through a whole rigmarole for each and every case with a fee.

Anonymous said...

@1:05 You seem to have an unusually high opinion of PI attorneys. And an unusually low opinion of SSDI attorneys (or high school grads, not quite sure which from your rather insulting comment).

Anonymous said...

"What's everyone's thoughts on the ALJ having more (or any) control over what would be an acceptable fee on a case by case basis?"

I'm not everyone, but I have been before ALJs for many years. They already have a say in approving the fee agreement. Providing them more control is a non linear proposition. Most ALJs work hard and do a good job. However, there are a significant number of denial prone outlier ALJs in every ODAR who have no qualms when denying listing level claimants. Why in the world would they need more control?

This is just another cheap shot from the heritage foundation, by an agenda driven shill.

Anonymous said...

While I would like to see an arrangement where fee petitions were more common so representatives who do little work do not receive windfalls (because most successful claimants are not going to take the time to protest a fee even if their representative was lousy), the current system works well for the representatives who actually do put forth time and effort to be strong advocates. The current system is also probably the most practical.

As for raising the fee cap, NO. If you assumed an hourly rate of $200 (which is more than the going rate for EAJA fees in the 7th Circuit), it would take thirty hours of work to earn the current maximum fee of $6000. There are few representatives, if any, that put in anywhere near that much work on a case paid at the ALJ level. If it was hard to find representatives, a higher max fee might make sense to encourage people to represent claimants, but right now, there is over-saturation of representatives.

Anonymous said...

Nothing insulting about it. One does not have to be an attorney or even have a high school diploma to be a representative in front of an ODAR Judge. Evidently the job does not require the same skill set that a Personal Injury Attorney requires, now does it?? After all, the disability process is non-adversarial is it?? Why don't you hire expert witnesses to testify for your claimant? Want to argue with the VE, bring in your own VE. Want to play lawyer, how about submitting a prehearing brief? How about knowing the case better than the ALJ you are in front of? I would say less than 10% of the Reps appearing in front of me are truly prepared for the hearing.

Anonymous said...

Ah, 10:26, you're an ALJ. That explains it. I bet your pay rate is similar to the percentage of prepared reps you say appear in front of you. Do you even perceive that the same derogatory comparisons you make between a PI attorney and an SSD rep can be made between you (a federal administrative law judge) and a "real" district or circuit court judge? Do you "play" judge or are you a judge? Give it a rest.

Johnny Cash said...

Bravo @4:56 PM!

Anonymous said...

Hey look ALJ 10:26 is down for holding half day hearings! Good luck making 500 dispos a year. ALJ 10:26, go ask your colleagues how eager they to have a litany of experts and lay witnesses testifying at hearing. Of course ALJ 10:26 knows it would be dumb bring in a 1000/hour expert in (which the disabled person waiting 2 years for a hearing could totally afford) when the regs state clearly that a treating source is presumptively entitled to more weight anyway right? Also I have seen lots of reps submit VE assessments (usually when there is also another case - PI/WC). Guess how many times I have seen a judge give that any weight at all?

Here is why people don't bring in witnesses, medical or otherwise: ALJS routinely refuse to even allow their testimony. Shocking that you have missed this. The reality is that the name of the ALJ is basically determinative of whether the case is worth trying to win, or simply set up for appeal. Indeed, one reason to have an attorney is so that they can set the record for appeal, appeal to USDC (where the atty can make twice as much money as winning the case), and get an order pointing out what an idiot the ALJ is (it's really fun!).

Also, I've got some bad news for you: you are a glorified hearing officer. Come to think of it, a DMV hearing officer has harder job than you (some, gasp, not even attorneys!) You have the job because of a byzantine selection process that regularly returns at least 10-15% incompetents or raging personality disorders (or both!) Not to put down ALJs, most are hardworking and not full of themselves or self-hating people like 10:26 Oh, and posting at 1:05 and 10:26 am on workdays? Yet it's the reps that should work harder, got it.

Not to say that there are not worthless reps, there are, and lots of them, but the current system does nothing to reward those who put in effort vs. those who don't. So we should not be surprised when the quality is low.

I am an now an insider. I do not agree with even half the opinions posited by Mr. Hall (and even less the paranoid conspiracy theories of some commenters). However, on behalf of everyone at ODAR, I apologize for this ALJ (assuming he just not a troll), who displays very, very poor professional judgment identifying himself/herself here in the fashion she/he has, which only undermines public confidence and trust in the impartiality of the system/ALJs.

As to the issue raised by Mr. Smith, trust me you really do not want ALJs determining your fee (you think ALJ 10:26 is going to pay you more than minimum wage - you are no more than a fast food worker to him/her!). Just trust me, you would regret this, and your fees would take forever to get approved (ever file a fee petition? Got a couple years before you need to get paid? Oh good!) Mr. Smith - you seem like a competent and professional rep, I'm sure you do good work. But sometimes your faith in well, humanity, betrays a lack of real world experience and the requisite degree of cynicism such experience usually results in. Not taking a shot, just letting you know that older hands have been at this a long time, and there is a lot of space between the rules and reality.

Lastly to 8:15, counting the hours spent on any one case is not reflective of the amount of work a rep does in contingency fee settings. Reps make 0/hour on a case they lose, regardless of how much effort they put in. They have to make that up somewhere. The point of CFAs is to induce people to take cases they could not get paid on otherwise. Sometimes that just results in disproportionate hourly fee on a given case, but that's the way it is.

Anonymous said...

Would this stop LTD companies from getting automatic payment when past due benefits are awarded? They would have to collect directly from the Claimant. Met Life and Liberty sure would love that wouldnt they!

Anonymous said...

Agree that SSA ALJs are merely hearing examiners. Raising their status to ALJ, dressing them up in robes, etc., in non adversarial disability proceedings was a mistake. It is an unsustainable system that's going to collapse if something doesn't change.

Anonymous said...

@Anon 11:28

Some would say the system is already collapsing or has collapsed.