NOSSCR Meeting With SSA Concerning Proposed Representation Regulations

Social Security has posted the following summary concerning a recent meeting about the proposed new regulations on representation of claimants:

Meeting Notes: Revisions to Rules on Representation of Parties NPRM

Location: Social Security Administration
6401 Security Boulevard
Woodlawn, Maryland 21235

Date: October 28, 2008, 3:00-4:30 PM

Participants from Social Security Administration (SSA): JoEllen Felice, Nancy Webb, Everett Jackson, Marg Handel, Zeenat Kolia, Vivi Maddox, Paul Kryglik, Amy Rigney, Joann Anderson, Diana Andrews, and Joshua Silverman

Participants from National Organization of Social Security Claimant Representatives (NOSSCR): Nancy Shor, Ethel Zelenske, Cynthia Berger, John Heard, and Marcia Margolis

Summary:

SSA presented an overview of the NPRM as described in the preamble

Access Registration

NOSSCR asked whether every employee in an entity would need to complete access registration. SSA responded that only an entity’s employees that want to access the electronic folder and employees that perform representational services would need to complete access registration. These would likely included attorneys and paralegals. SSA will consider revising the language in proposed §§404.1713(b) and 416.1513(b) to clarify this policy. NOSSCR requested clarification in other regulatory sections mentioning access registration.

Mandating Electronic Services

NOSSCR said they were excited and supportive of online access, and they appreciated the need for strict authentication procedures.

Use of Form SSA-1696 for Revocation of Representative

NOSSCR said that claimants should not need to file this specific form to revoke the appointment of a representative; rather, claimants should still be allowed to submit any writing revoking the appointment of a representative. They said that SSA should make it easy for a claimant to revoke the appointment of a representative.

Principal Representative Filing an Application for Benefits for a Claimant

NOSSCR supported SSA’s intention to allow applications to be filed online, but they asked SSA to clarify: 1) what protections claimants had from fraud if their principal representatives filed an application online for them, and 2) what protections did a claimant have to monitor a representative’s follow-up action through the appeals process. SSA answered that: 1) a representative will need to certify to the accuracy of the information in the application, 2) the representative will attest that he reviewed the application before filing it with SSA, and 3) SSA will send a copy of the application to the claimant and ask the claimant to review it for accuracy. Unlike the current electronic filing of an application in which SSA proactively contacts a claimant to verify the accuracy of the information, SSA will assume that an application is correct unless a claimant says otherwise. Click-and-sign will have a passive acknowledgement system when no third-party is involved in the filing of an application. Currently SSA asks whether third-parties assist in the completion of online applications.

NOSSCR asked whether SSA intended a different procedure for represented and unrepresented claims. SSA answered that there is no difference in the online application for represented or unrepresented claimants.

NOSSCR asked whether SSA will give information to claimants about fees when a third-party helps a claimant complete an application. NOSSCR was concerned that applicants may not know that they could file claims on their own for free. SSA said that they would consider this.

NOSSCR expressed concern that less-educated or those without English language fluency might not understand the significance of failing to contact SSA if they notice a mistake in an application filed by a representative.

Notices to Claimants

NOSSCR expressed concern that claimants would not received notices under proposed §§404.1715(b) and 416.1515(b). SSA said that claimants would receive notices, and that SSA would consider revising the regulatory language.

Professional Representatives

NOSSCR asked whether a claimant could file his own appeal if he is represented by a professional representative. SSA answered that a claimant could file. NOSSCR requested that this be made clearer in the final rules.

Paper Copies of Applications

NOSSCR asked whether a representative could print a paper copy of the electronic application before it is submitted to SSA. SSA said they would consider this suggestion.

Requiring Professional Representatives to Use Electronic Media

NOSSCR expressed reservations about requiring professional representatives to use electronic media. NOSSCR offered several examples of situations in which computer errors or unforeseen circumstances could affect the ability of a representative to file on time. NOSSCR noted that while the Federal court system contains the ability to have an affidavit in such circumstances, SSA did not propose any such ability. NOSSCR expressed concern that the proposed rules would create a new category of litigation about why a representative could not file timely, particularly because failure to use electronic services is a sanctionable action. NOSSCR suggested making the electronic services aspirational rather than mandatory or including provisions for waivers in certain instances.

NOSSCR also said that the NPRM’s use of “medical factors” in several proposed regulatory sections was inaccurate because initial disability claims involve more issues than that. NOSSCR expressed concern that the proposed rules would create separate procedures for medical and non-medical appeals.

Rules of Conduct

NOSSCR felt that some of the proposed language was vague. As an example, NOSSCR asked whether “assisting” in proposed §§404.1740(c)(12) and 416.1540(c)(12) included the situation when a disqualified a representative transfers his client files to another representative in good standing. NOSSCR suggested adding the word “knowingly” in those proposed sections. NOSSCR also asked whether disbarred attorneys were to be included in proposed §§404.1740(c)(12) and 416.1740(c)(12).

End of Appointment of a Representative

NOSSCR asked whether proposed §§404.1712(c)(7-8) and 416.1512(c)(7-8) meant to end the appointment of an entity representative if shareholder changes occur. NOSSCR also asked why representation should end if an entity reorganizes but there is continuity to for a claimant.

Fee Petitions

NOSSCR asked whether the proposed §§404.1720-.1732 and 416.1520-.1532 meant to only apply to fee petitions or also to fee agreements. SSA replied that the proposed rules only apply to fee petitions where mentioned in the text. NOSSCR asked whether these changes are significant changes to current business practice. SSA responded that these textual changes are not a significant change from the current business practice.

Representational Services

NOSSCR asked what is meant by the undefined phrase “representational services.” SSA replied that they will consider placing examples of representational services in subregulatory instructions. NOSSCR replied that the definition should appear in the regulatory text. SSA responded that it might be difficult to say every example in the text, but that SSA means to include actions like: appearing at a hearing, giving legal guidance, signing legal arguments, and signing an application. SSA might not consider collecting evidence or interacting with the electronic records folder to be representational services.

Filing Fee Petition

NOSSCR asked for clarification about the use of “electronic media we prescribe or at one of our offices” in proposed §§404.1725(a) and 416.1525(a). SSA responded that they intend to develop new electronic services and will publish a notice in the Federal Register when representatives must use the electronic services. Until a service is available, SSA may consider allowing a paper business process.

End of Appointment of a Representative

NOSSCR asked whether the “final determination or decision” in proposed §§404.1712(b)(3) and 416.1512(b)(3) means the receipt of an award notice. NOSSCR asked whether a representative would need to submit a new Form SSA-1696 if an award notice contained a computation error. SSA responded that a new Form SSA-1696 would probably be needed. NOSSCR responded that the proposed process is inefficient to fix a payment amount because there are issues that commonly arise with Supplemental Security Income program, such as income and resources and living arrangements issues. NOSSCR suggested changing the regulatory text to specifically mention “60 days after receipt of award notice.” SSA said that they would consider this change.

Form SSA-1696

NOSSCR asked how long a representative would need to keep a paper copy of the Form SSA-1696 under proposed §§404.1740(b)(3)(iii) and 416.1540(b)(3)(iii). NOSSCR also asked whether a representative could keep a scanned copy. SSA replied that NOSSCR should provide written comment.

NOSSCR asked whether the Form SSA-1696 would be multiple pages. SSA confirmed this.

Contact Person

NOSSCR asked who was the “contact person” in 73 FR 51964? SSA explained that an entity needed a contact person with whom SSA could communicate. NOSSCR asked whether the contact person was the same as the principal representative. SSA replied that they are not the same. A principal representative can be an entity, and in such a case the entity would need to identify a contact person who works for the entity with whom SSA can communicate.

Direct Deposit Registration

NOSSCR suggested that SSA collect attorneys’ state bar association identification numbers when attorneys register to help save time. NOSSCR also suggested that SSA request letters of good standing from state bar associations for the states in which an attorney is licensed to practice to help alert SSA if there was an ethics or other problem. NOSSCR suggested dealing with the problem early rather than relying solely on the sanctions process after a problem occurs.

Direct Deposit

NOSSCR asked whether SSA would be able to remove an overpayment directly from a representative’s account. SSA said that a representative would be given notice and the opportunity to respond before SSA would collect money from a bank account.

NOSSCR noted that some representatives have commented on the NPRM that they cannot ascertain for which claimant a payment is made when SSA pays by direct deposit. NOSSCR reported that many banks don’t understand how to transfer the accounting information of a claimant’s payment to a representative. NOSSCR suggested that SSA prepare an official fact sheet to educate banks on how to transfer this information to representatives. SSA responded that this information is already available on www.ssa.gov, but that SSA would consider preparing a fact sheet.