Jun 2, 2011

Can Social Security Improve Its Regulations?

From a notice posted by Social Security in the Federal Register:
On January 18, 2011, the President issued E.O. 13563, "Improving Regulation and Regulatory Review,'' which requires Federal agencies to develop a preliminary plan to
``periodically review its existing significant regulations" ...
We have posted the preliminary plan on our Open Government Web site, http://www.socialsecurity.gov/open/regsreview, and are now requesting public comments on the plan.
Social Security's "plan" is, essentially, to do nothing they were not already planning to do since they believe that their "regulations do not generally address economic competitiveness or job creation." In general, I agree with that but the Social Security Administration does regulate a billion dollar industry and I happen to be part of it -- representing Social Security claimants. Social Security's regulation of this group is pathetically haphazard and unpredictable. Take a look at Social Security's regulations on attorney fees. They are virtually non-existent. Social Security's operating manual on attorney fees contains absurdities. Those who represent Social Security claimants have a hard time figuring out what Social Security's policies are on fees for representing Social Security claimants. The agency seems incapable on comprehending that most attorneys are employed by entities called law firms and tries to pretend that they do not exist. Social Security's refusal to deal with these issues is causing me and others like me unnecessary headaches and money. This unnecessary burden could be lifted with intelligently crafted regulations.

You can comment on Social Security's "plan" by e-mailing: RegsReview@ssa.gov.

9 comments:

Anonymous said...

I couldn't agree more, Charles, re attorney fees. I generally find myself spending twice as long CHASING my fee as I do actually EARNING it, and that's not exactly a great business model. You can submit your 1695, 1696, and fee agreement to every branch of SSA via certified mail in a timely manner and you STILL wind up having your fee released to the claimant, or not released at all, or not even withheld, or some other nonsense. And that's just on standard ALJ-level fee agreements, don't even get me started on post-ALJ or FC fee petitions. Yikes!

Anonymous said...

"Intelligently crafted regulations" may be an oxymoron.

That SSA "regulations do not generally address economic competitiveness or job creation" is a fatal admission, that may well apply to the whole Social Security Act -- especially beyond the original "old age", "survivor", and _short_term_ unemployment provisions. In fact, some economist contend that the impact is to keep individuals out the the employment market and from employers hiring the maximum number of individuals.
My contention is that - say half - of adult disability claimants would like to work and have productive lives, IF there was an economic demand in the US economy and suitable jobs (as there were in 1942-1944) for their labor.

Now back to the important topic of ATTORNEY FEES (and possibly the animus of some non-attorneys inside SSA to lawyers having bread on their family table to eat). ...

Anonymous said...

Representatives have no business whining about their fees, considering that they can expect to win more than half of their cases and considering that they will likely get the maximum fee or close to the maximum fee on most successful cases and the value of the work they put into the case will generally be far below the compensation received. If you billed $150 an hour for your work, you would have to put in forty hours of work to earn the $6000 maximum fee. I doubt more than ten hours are legitimately spent on most cases that reach the hearing level.

When getting disability benefits for a client was actually difficult, a generous contigency fee made sense because representatives needed an incentive to take on marginal cases, but now that the pay rate is so high at the hearing level (where many representatives first get involved), it is no longer really necessary.

Representatives should be glad that the Social Security Administration withholds fees from past due benefits and pays them directly to the representatives as often as they do. If representatives had to collect directly from their clients every time, they would have to make due with less money because many clients would balk at paying $6000 to a representative who has done little to advance the case (especially now that senior attorneys at ODAR can pay cases on the record, resulting in claimants receiving favorable decisions only days or weeks after requesting a hearing -- at which the representative has likely done little more than just submit the request for hearing and possibly submit some new medical records provided by the claimant).

Anonymous said...

"I doubt more than ten hours are legitimately spent on most cases that reach the hearing level."

I estimate the number is closer to 3 hours, including the travel time to and from the hearing. In my office, most attorneys are meeting their "clients" for the first time approximately 5 minutes before the scheduled hearing.

Anonymous said...

Wow, anons 3 and 4 (2:08 and 2:28), you guys sure are sour on attorneys and fees, eh? Maybe that's how some firms operate, especially the big, national ones (you know who I mean). Some of us, however, actually spend quite a bit of time calling the clients ourselves, developing the records ourselves, following up with doctors/hospitals/and the SSA ourselves, and put A LOT of prep time into our cases....some of us also takes cases at IA and work on them OURSELVES until we get to a favorable decision, whenever that may be....for those of us, it's especially unnerving when you have such difficulty getting a fee that you worked rather hard for. You two need to lighten up and work for some competent representation.

Anonymous said...

#3 is an ODAR attorney, so I have plenty of experience with the various representatives who work in my part of the country. There are some representatives who are very hard working and do the things that you mention #5, but there are plenty of others (both big national firms and small local firms) that do very little.

But even people like you, #5, who are doing a lot of prep work (which is greatly appreciated by the ODAR staff -- it makes our job easier when the representatives are actually prepared) are not putting in thirty or forty hours on a case typically. SSA has chosen not to adapt its fee structure to the changing nature of the disability system (i.e, laxer standards resulting in a high pay rate at the hearing level, reducing the need for a contigency fee structure to ensure an adequate supply of representatives) and if SSA wants to pay a successful representative up to $6000, that is fine.

My issue is with claimant's representatives who whine about the fees considering that an attorney with any sizeable volume of cases has a sweet deal going.

I agree that it would be annoying to wait weeks or months to collect your fee after you know you have a favorable decision and that trying to collect from your client directly would be difficult, but difficulty collecting fees from clients is hardly a problem unique to disability cases. Instead of people like Mr. Hall whining about having difficulty getting SSA to release the fees at times, representatives should be happy they do not have to chase after every client to get a fee, as would be the case in other areas of the law. SSA has a lot of problems and payment of fees is certainly an area that could be handled better, but is there any other area of the law where the government collects your fee for you and then sends it to you?

Anonymous said...

All good points, anon 5:14, but remember - we're not asking for any special treatment. These are the SSA's rules that they developed, and for better or worse, they are the rules that we have to play by. I'm not going to dispute whether or not any lawyer/rep has a right to complain about their fees not being paid considering the work/time that was put in or whether the system is sound. My main complaint is, these are SSA's rules and standards that us lawyers/reps expect the system to play by, but more often than not, we have to beat the payment center's heads against the wall to get our fees. When I receive a fee without having to call payment center and follow up on it, I almost have to shout for joy. I guess I should be happy that once in a while I get my fee delivered to me, but the rules state that I should ALWAYS have it delivered to me if I've done my due diligence in submitting my paperwork. So when I do everything right....I still get hosed....and I should be happy about it?

Anonymous said...

The reason the payment of fees is so problem-ridden is because SSA does not have an adequate computer system to handle it. Most of the actions required to adjudicate cases and pay representative fees have not (and probably should be) automated, leading to lots of room for errors and delays. Due to the nature of budgets and government in general, the chances of creating a modern system for handling this, or any workload, is slim.

Anonymous said...

Wow way to lump everyone in the same group. I guess lawyers/reps could same the same thing about SSA employees. I couldnt even being to count how many times a new client has come to our office right before their hearing date, only to review their exhibits and see that ODAR has not requested one single piece of evidence. And maybe we could talk about the horrible service claimants receive at their field offices.

And if claimants dont need us, and all we do is file a request for hearing which a senior attorney pays right away, why was the claimant denied in the first place?

Also want to point out that reps now PAY the administration to have our fee withheld. USER FEE

Those that live in glass houses.....