I keep trying to wade through Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. The proposal seem problematic in many respects. I will lay out the problems I see in several posts.
The most serious concerns I have relate to the following language in the proposed regulations (emphasis added):
The most serious concerns I have relate to the following language in the proposed regulations (emphasis added):
Direct payment to entities. We will only make direct payment to an entity that provides the following attestations in its request for direct payment of fees:
(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:
(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.
First, this talks about a signed statement from "each attorney or non-attorney representative" and about "all individuals who have provided representational services" which I would take to mean that Social Security recognizes that at a law firm or other entity representing Social Security claimants more than one person may be working on a client's case. So how does one explain the part that says that there must be an attestation that "The attorney or non-attorney has performed all representational services on behalf of the entity"? This would mean that only one person at a firm must do all the "representational services" on the case or the firm would be ineligible for fee withholding. This is contradictory. I cannot figure out what Social Security means.
Second, what does this "representational services" language mean? The proposed regulations include a list of definitions of terms used. I will talk about those confusing definitions later but "representational services" was not given any kind of definition, even a confusing one. This is a key term. Without knowing what Social Security means by "representational services", I do not know what they mean by this proposal. If a legal assistant who works for me calls Social Security about a payment issue, is that a "representational service"? If so, my firm is not eligible for direct payment of a fee unless that legal assistant qualifies under the ongoing experiment in non-attorney withholding. What if I were to send that legal assistant to the hearing? (I would not do this, but others have.) Would that be a "representational service"? Where exactly is the dividing line here? I wonder if Social Security failed to define "representational service" because they did not know how.
Third, what does the "in possession of a signed statement" language mean if one of my firm's employees leaves to take a job with another firm and gives that firm a "signed statement"? Does the departure of an employee who has worked on a case automatically mean that my firm no longer has that person's signed statement. Can an employee withdraw his or her signed statement? Does each employee who has worked on a case have the ability to prevent my firm from receiving a fee after he or she leaves? Employees who quit or get fired can sometimes be spiteful. That sounds scary to me.
You may comment on this proposal online.
Second, what does this "representational services" language mean? The proposed regulations include a list of definitions of terms used. I will talk about those confusing definitions later but "representational services" was not given any kind of definition, even a confusing one. This is a key term. Without knowing what Social Security means by "representational services", I do not know what they mean by this proposal. If a legal assistant who works for me calls Social Security about a payment issue, is that a "representational service"? If so, my firm is not eligible for direct payment of a fee unless that legal assistant qualifies under the ongoing experiment in non-attorney withholding. What if I were to send that legal assistant to the hearing? (I would not do this, but others have.) Would that be a "representational service"? Where exactly is the dividing line here? I wonder if Social Security failed to define "representational service" because they did not know how.
Third, what does the "in possession of a signed statement" language mean if one of my firm's employees leaves to take a job with another firm and gives that firm a "signed statement"? Does the departure of an employee who has worked on a case automatically mean that my firm no longer has that person's signed statement. Can an employee withdraw his or her signed statement? Does each employee who has worked on a case have the ability to prevent my firm from receiving a fee after he or she leaves? Employees who quit or get fired can sometimes be spiteful. That sounds scary to me.
You may comment on this proposal online.
I don't think it means that one person performed ALL the services, rather that each person who worked on the case performed all such services FOR the entity rather than as an independent contractor or for another entity. This would avoid individuals who worked on the case from billing separately from the entity.
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