Social Security has posted the following summary of a meeting about the proposed new regulations on representation of claimants (emphasis added):
Meeting Notes: Revisions to Rules on Representation of Parties NPRM
Location: Social Security Administration
6401 Security Boulevard
Woodlawn, Maryland 21235
Date: October 30, 2008, 2:00-2:45 PM
Participants from Social Security Administration (SSA): Nancy Webb, Everett Jackson, Marg Handel, Zeenat Kolia, Vivi Maddox, Paul Kryglik, Amy Rigney, Joann Anderson, Sarah Humphreys, Jeff Blair, and Joshua Silverman
Participants from National Association of Disability Representatives (NADR): Jeanne Morin, Art Kaufman, and Lou Enoff
Summary:
SSA presented an overview of the NPRM as described in the preamble
Revocation of Fee Agreement
NADR asked that under proposed §§404.1707(d) and 416.1507(d), what happens to the fee agreement if a claimant revokes the appointment well into the process, and then subsequently is determined eligible for benefits.
SSA answered that the proposed regulation will not change payment of fees. As under the current process outlined in subregulatory instructions (POMS GN 03940.003(B)(3)), this is an exception to the fee agreement process. The fee agreement will be denied and the representative will have to submit a petition and look to the claimant for payment of fees.
NADR asked whether a claimant, who already appointed a non-attorney eligible to participate in the demonstration project as his representative, and who appoints an attorney to represent him before a Federal court, needs to file a new Form SSA-1696 for the non-attorney representative on a court remand. SSA replied that this situation is not affected by the NPRM and that the claimant’s appointment of another representative did not revoke the appointment of the earlier representative.
Multiple Representatives and Fees
NADR asked how fees are divided if there is more than one representative, either consecutively or concurrently, with fee agreements.
SSA answered that the proposed regulation will not change the payment of fees in this situation. SSA will authorize to each appointed co-representative an equal share of the total fee amount calculated under the terms of the approved fee agreement. Because SSA does not consider individual services in authorizing fees under the fee agreement process, SSA considers each co-representative entitled to an equal share of the total fee amount authorized for all the representation work in the case. For example, if the claimant appointed two representatives, SSA would authorize to each half the total amount calculated under the terms of the fee agreement. This is contained in subregulatory instructions (POMS GN 03940.009).
End of Representation
NADR asked whether, under proposed §§404.1712(b)(4) and 416.1712(b)(4), a representative had authority to talk to SSA about a claim if he is paid incorrectly, or the claimant is paid but the representative is not. Will SSA refuse to discuss the case because the fee petition has been filed and the representation had ended?
SSA answered that the representative’s submission of a fee petition is just one of several events that may end a representative's appointment and his authority to act on a claimant's behalf. If the representative has concerns about incorrect payment to the claimant, the representative's services to the client have not ended and the representative should not submit his fee petition until all of those issues have been resolved. The current regulations at §§404.1725 and 416.1525 explain that the representative should not file his request for a fee until his services have been completed. Once the representative's appointment has ended, SSA will not discuss the claimant's case with the representative. However, if the representative has an issue in regard to his fee, such as non-receipt or an incorrect payment amount, SSA may discuss and resolve that issue with the representative.
Direct Payment of Fees
NADR asked what assurances SSA will make so that an electronic funds transfer (EFT) payment contains an identifier, such as a claimant’s name or social security number, so that the representative knows with which claimant the payment is associated.
SSA responded that when SSA decides to pay a claimant, SSA sends a payment file to the Department of the Treasury (Treasury) that contains the first four initials of a claimant’s first name, the first 13 initials of a claimant’s last name, the claimant’s social security number, and the payment amount. If a claimant is represented, Treasury sends all of this information to the representative’s financial institution when Treasury transfers a payment. The financial institution decides how much information to give to an account-holder. SSA encourages representatives to speak with their financial institution to get this information.
NADR replied that financial institutions usually only send out a statement monthly, and that representatives may not know about payments received for several weeks. NADR asked whether SSA can send emails to representatives notifying payment to Treasury about a claimant. SSA replied that they would consider this.
Definition of Representational Services
NADR asked what is the definition of representational services in §§404.1730(f)(2) and 416.1530(f)(2).
SSA replied that they will consider placing examples of representational services in subregulatory instructions and in a public desk guide because it might be difficult to say every example in the regulatory text, but that SSA means to include actions like: appearing at a hearing, giving legal guidance, signing legal arguments such as grid identification, and signing an application. SSA might not consider collecting or submitting evidence or asking for claims status to be representational services. NADR asked whether an individual working at the direction of the qualified representative who performs intake or requests records is performing representational services. SSA answered that these are not representational services and would not disqualify the entity for direct payment.
NADR asked whether a non-attorney, who is employed by an appointed firm but is not participating in the direct payment demonstration project, and who appears at the hearing on behalf of the claimant would make the firm ineligible for direct payment. SSA responded affirmatively and NADR indicated that they would submit in a comment.
Affirmative Duties for Representatives
NADR said that often, despite the representative's best efforts, doctors and medical facilities do not respond to requests for records. If SSA is going to obligate the representative to provide prompt answers to requests for information under proposed §§404.1740(b)(3)(ii) and 416.1540(b)(3)(ii), what tools will it provide to ensure compliance by third parties with requests for records that the representative needs to fulfill this requirement?
SSA answered that this duty is not new. SSA originally published this affirmative duty in 1998 in the Standards of Conduct for Claimant Representatives (63 FR 41,404). This duty remains substantively unchanged in this NPRM and does not impose any new or enhanced duties on representatives. The NPRM contains ministerial changes only. We understand that despite representatives' best efforts it may be difficult to obtain the requested information. The preamble to the 1998 final rules discusses three affirmative duties related to a representative's obligation to obtain and submit information and evidence to SSA (§§ 404.1740(b)(1-3) and 416.1540(b)(1-3)) and recognizes this real-world difficulty. In that preamble, we said that "the representative should make a reasonable effort to obtain and organize the available evidence and submit it to SSA . . . . For example, if a representative has made several attempts to obtain the requested information from the claimant or another source without receiving a response, we will likely determine that such efforts are in compliance with our rules." We also stated that in applying 20 C.F.R. §§ 404.1740(b)(3)(ii) and 416.1540(b)(3)(ii), "we will not expect the representative to . . . obtain information that is not readily available. Instead, the rule is intended to ensure that representatives are responsive to our inquiries so that the processing of the claim will not be delayed pending a response from the representative on the claimant's behalf."
In determining whether a representative has failed to comply with any of SSA’s rules of conduct, SSA also has said that "we intend to deal with each complaint on a case-by-case basis to determine whether under the attending circumstances, a representative engaged in actionable misconduct. In making this determination we will apply an objective test, that is, whether a reasonable person, in light of all the circumstances, would consider the act or omission violative of the rule in question." 62 FR 352 (1997).
This rule only requires "prompt and responsive answers to requests from the Agency for information." It does not require the representative to provide documents that the representative, despite diligent effort, has not been able to obtain. Under such circumstances, all a representative would have to do is promptly respond to SSA requester that the representative has made every effort to obtain the information, but that the effort has not been successful. For these reasons, SSA does not believe it is necessary to develop tools to ensure third-party compliance with representatives' requests for records.
NADR asked whether SSA could strengthen the enforcement power of ALJs’ subpoenas, as was proposed in Amendments to the Administrative Law Judge, Appeals Council, and Decision Review Board Appeals Levels NPRM, 72 FR 61218 (2007)? SSA responded that subpoenas are outside the scope of this NPRM.
NADR said that they could not track some preamble language to the proposed regulatory text. SSA requested NADR submit a comment. NADR asked what was the purpose and effect of preamble language in an NPRM. SSA responded that preamble language does not have the force and effect of regulatory language but that it is like legislative history because it explains SSA’s intent to the regulatory text.
Sanctions Hearing Against Representative
NADR asked whether SSA has a policy to ensure that the ALJ in a sanctions hearing under proposed §§404.1765(b) and 416.1565(b) will be from a different office, or even different department, that has no normal interaction with the representative, to ensure that it is a fair and impartial hearing?
SSA responded that it is a longstanding SSA policy to do so. In the preamble to SSA's 1991 Final Rules on the Suspension and Disqualification of Representatives (56 FR 24,129), SSA said: “ALJs are assigned to cases in rotation so far as practicable. In [representative sanction actions], however, it is not practicable to employ a strict rotation because of variable factors such as: the availability of the ALJ; office workload; individual docket considerations; and the practice of choosing an ALJ stationed outside the geographic area in which the charged representative resides, who does not normally adjudicate cases in which the representative has an interest." The Office of Disability Adjudication and Review, and its predecessor, the Office of Hearings and Appeals, have followed this practice since at least 1991.
Notifying Claimants about Sanctioned Representatives
NADR asked what happens to a claimant with whom a disqualified or suspended representative is currently working. Are there procedures for notifying the claimant and providing him with information on his options for obtaining new representation?
SSA replied that when the decision to suspend or disqualify a representative is final, SSA notifies the sanctioned representative's clients that SSA no longer recognizes the person as a representative because of his suspension or disqualification. In notifying these clients, SSA reassures them that the sanction is not the result of any wrongdoing by them, and tells them that SSA will work with them directly on their claim, including assisting in the development, until they appoint someone new. (See POMS GN 03970.060D and 03970.065). SSA’s regulations and policies require SSA to advise claimants about their right to representation, and this policy remains unchanged by the suspension or disqualification of their original representative. SSA also maintains a representation referral list that is available to the public. SSA’s rules (§§404.1706 and 416.1506; POMS GN 03910.030; and HALLEX I-1-1-3, I-2-0-20C, and I-2-0-92) discuss the policy on notifying unrepresented claimants about their representation options.
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