The Social Security Administration will publish proposed Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives in the Federal Register tomorrow. The summary provided by Social Security includes a sentence that seems to encapsulate their approach:
The changes to our rules are not meant to suggest that any specific conduct is permissible under our existing rules; instead, we seek to ensure that our rules of conduct and standards of responsibility are clearer as a whole and directly address a broader range of inappropriate conduct
Social Security thinks it's important to point out that there's no representative conduct that they find permissible but plenty they want to forbid because they believe it's inappropriate? That certainly suggests as attitude.
Here's a couple of excerpts from the proposal:
A representative should not withdraw after a hearing is scheduled unless the representative can show that a withdrawal is necessary due to extraordinary circumstances , as we determine on a case-by-case basis. ...
Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: ...
(ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of the individual providing opinion evidence.
As to the withdrawal provision, the agency insists on recognizing only individual lawyers as representing claimants, not law firms. Prohibiting the substitution of one attorney for another after a hearing is scheduled makes it difficult for a law firm to properly allocate its resources and makes it easy for individual attorneys employed by a firm to pick up and leave their firm with the files of their clients after the firm has spent large sums of money on the cases over the many months or years that the firm has represented the claimants. I don't know what the point of this is other than to harass law firms. Let me anticipate the response from a government employee. "Law firms don't spend much money on Social Security cases -- only a few dollars obtaining medical records -- so that's no big deal." Anyone who thinks this has never run a law firm. Law firms spend almost all of their money on salaries and other overhead. The problem is that a law firm may spend thousands of dollars on the office overhead associated with a case only to see an attorney waltz away at the last minute pocketing the entire fee. Is it unreasonable for a law firm to try to make this difficult? What exactly is the problem with a law firm substituting one attorney for another after a hearing is scheduled? It doesn't delay anything.
As to the requirement that attorneys notify Social Security if they suggest medical treatment, if I tell my client that he or she ought to get in psychiatric treatment, I'm supposed to disclose this to Social Security if the psychiatrist later offers an opinion? What if I tell my client to get back to the doctor he or she used to see? Am I supposed to carefully track the advice I give clients about medical treatment?
This is just overkill. I'm not Eric Conn or Charlie Binder. Don't treat me like them. I don't deserve it.
This is merely a proposal. The public can comment upon it. Social Security is supposed to consider those comments. A new administration and a new Commissioner will be in office before anything is adopted, if it ever is.
How hard is it to just go ahead and make yourself or the partner/principle the main rep and then add all other firm/practice group members as co-reps on a single 1696 and single fee agreement from the start? Then you'd only have to adjust or update your forms if someone came or left the firm, right?
ReplyDeletere: 10:01 AM
ReplyDeleteApparently you do not understand that this is type of contract (all names on) is exactly what is done and what Social Security screws up routinely. Social Security insists either that there can be no such thing as co-reps, or contradicts that by issuing multiple split fees. And, update forms??? really??? Good luck with that. That gets screwed up all the time. No matter what you do and how clear it is, someone at the pay center only looks at the first thing filed and for withdrawals. And really, if you file a case in 2013 that doesn't get to hearing until 2016, is it realistic to assume everyone will still be at the firm? No. The a real pain is that Social Security insists these days that if co-rep withdraws, that the remaining rep (or reps) fee is reduced in favor of the claimant. So, if one of three withdraws, then the other 2 only get 2/3ds. But this is an intermittent issue, and policy how fees are paid, irrespective of the written rules can change all the time based on the whim or training of the employees involved. Firms are disadvantaged, while solos have less difficulty.
I find the proposal to advise SSA if the rep referred the claimant for an examination or treatment that lead to an opinion offensive to both me as a rep and to medical providers who are willing to provide opinions. The proposal implies that there is something wrong with doing so or that how the exam and opinion came to be is something that should be considered when weighing the opinion.
ReplyDeleteI find it preposterous that SSA can write its own rules to say that their physicians and psychologists are "experts" and now attempt to minimize the opinion of a treating or examining source just because a representative may have referred the claimant there.
This is just further indication of the Agency's biased view of claimants and representatives.
These proposed rules can be in direct conflict with state bar ethics rules! HYPOTHETICAL: After SSA schedules a hearing, I contact my client (who I've been representing for 3 years), and he tells me that he has been working "off the books." He claims client confidentiality and refuses to allow me to disclose this to SSA and says that he is going to lie to the ALJ. Since all state bar rules prohibit an attorney from putting a client on the stand as a witness if the attorney knows that the client will perjure himself, I'm required by state bar ethics to withdraw from representation. HOWEVER, in doing so, the ethics rules require that I am not supposed to act against the best interests of the client, so I am not to disclose the reason for the withdrawal, except to perhaps give "attorney-client disagreement" to the forum. Is SSA going to accept that? I think that some of the new ALJs who have never represented actual living clients will try to investigate further to get details, the disclosure of which will put me in jeopardy with the State Bar for violating client confidentiality or for acting against the best interests of the former client.
ReplyDeleteSSA should quit trying to trap representatives and just punish the offenders if the parachute firms and non-attorney reps are pulling truly unethical shenanigans.
ReplyDeleteNo wonder this clown house has a million cases pending at hearings. What picayune crap. The rep refers the claimant for an examination or treatment that leads to an opinion...How ridiculous. OK so when I file for the claimant I will also have a one paragraph statement (just as I did with the insipid video hearing denial) noting potential referral and names of sources. Next to names a check box. When I do - refer, will send it to SSA where vast amount of adjudicators will drop file it. There is no one running the shop up there. This will not weed out bad reps; it will just increase the effluvia SSA seems to be feeding on nowadays.
SSA needs to start policing ALJs and other ODAR staff who remove evidence from files that is supportive of claims instead of wasting time on these nonsense rules.
ReplyDeleteIt is becoming a not unfamiliar situation to find that there are beneficial records and reports in a claim file when it arrives at ODAR but by the time the case gets worked up for hearing these documents are mysteriously no longer anywhere in the claim file.
Proposed change in the regulation:
ReplyDelete"A representative should not withdraw after a hearing is
scheduled unless the representative can show that a withdrawal is necessary due to
extraordinary circumstances, as we determine on a case-by-case basis"
What does that mean? Does it mean that the representative has to obtain permission to withdraw by showing "extraordinary circumstances"? Who is going to make that determination? The ALJ who is assigned the case? And what kind of standard is "as we determine on a case-by-case basis"?? Clearly the person who wrote this does not have even a rudimentary understanding of procedural due process.
If they want to change the regulation to say that the rep cannot withdraw without prior approval, they should say so. But I suspect that they know that it would be completely impracticable to do things that way, so the writer chose to finesse the issue by saying "should not withdraw".
This is utter incompetence in drafting.
Sigh,
ReplyDeleteMore reps whining about rules that, when compared to the rules governing the same subject matter in literally every other area of law, are easy.
Y'all ever tried to withdraw from a PI case at the last minute? A criminal case? Judges tend to only allow that for "extraordinary circumstances," and being unlikely to win & get paid isn't considered an "extraordinary circumstance."
"after the firm has spent large sums of money on the cases over the many months or years that the firm has represented the claimants"
ReplyDeleteI almost fell off my chair I was laughing so hard.
@ 2:09 I do not believe the previous comment was "whining" about the rules but was simply pointing out how imprecisely that particular provision was drafted.
ReplyDeleteTwo things are safe to say about SSA when it comes to this issue. One, there is a clear anti-attorney bias in the Agency. Ask most SSA employees on how they view claimant representatives and you will get a variation on the theme that they are all useless, blood sucking leeches. Two, there is not a soul who writes this policy who has a clue about how to manage a modern legal practice.
ReplyDelete@1:30:
ReplyDeleteYOU NAILED IT! "UTTER INCOMPETENCE."
This is true not only in the writing of this regulation, but with those in the top management positions in SSA, especially the Disability components. This is the very reason the 1 million backlog of cases exists, and is not getting better, despite contrary assertions from management on this blog the backlog is improving. If there is one thing I know well from my decades with the Agency, it is that these managers are most adept at manipulating numbers and statistics to make things appear favorable to them, when that is not the case.
Just how low must this Agency sink before heads start turning, and certain top SSA, and Disability managers, in particular, are finally removed and held accountable?
Right now, as we all know, we have an Acting Commissioner who has demonstrated she is willing to go to great lengths to protect them, e.g., former ROCALJ Garmon who engaged in misconduct and wrongdoing for many years of the kind which destroyed people's lives for no reason other than to benefit his own self-interest, and yet able to gerrymander an ODAR Hearing Office near his home, which is not easily accessible by public transportation, in a wealthy suberb of Atlanta where few claimants reside, and pick out which office he wants, even though he is assigned to Falls Church and will not be holding hearings in said office thereby depriving an ALJ who will be holding hearings there of an office.
How much lower must this inept non-sense engaged by top SSA and Disability management go? Can it get more outrageous?
I was wondering how long it would take before this thread was taken over by Anonymous and all of the issues that end up getting discussed in every other thread on this page for the past month or two.
ReplyDelete@2:42
ReplyDeleteHere's a thought: When top Agency Officials and management appropriately and adequately address the issues they keep bringing up, which go to the very heart of the dysfunction in this Agency responsible for all of these things.
Hey 2:42 would you prefer the word "Publius" instead? It's about the ideas and not who says them.
ReplyDelete2:42 here. Actually, I would prefer that comments be on topic and not just about some clearly disgruntled former employee wanting to vent. This just doesn't seem to be the appropriate forum for that on a day to day basis.
ReplyDeleteI am not suggesting that Ananymous' grievances are not legitimate, but just not something we need to hear day in and day out in every thread.
@2:42 & 2:56
ReplyDeleteThe comments from Anonymous are not one person, or all disgruntled former employees. In case you had not noticed, many have or were employed by the Agency for many years and have meaningful contributions and ideas to present which TPTB obstinately refuse to engage and discuss. The flippant attitude which come across in the few comments they have made is clear - It's my/our way, or the highway. This is not the way to manage an Agency. The truth that this is not the way to manage an Agency is in the pudding, as in the disastrous state the Agency is in.
Moreover, I also know from many years of experience that the one thing TPTB in ODAR and SSA utterly disgust, hate and which gets under their skin more than anything is for their dirty laundry to be made public. Unless or until changes are made and employees and managers who engaged in misconduct and wrongdoing are held fully accountable, I will not rest.
Well...maybe your efforts would be better spent lobbying those who can make a difference for you, like your congressman, or even Sheriff Joe Arpaio, rather than boring the users of this board. Jus' sayin'.
Delete@4:39
DeleteWhen one reads your comment in contrast to those I have made, it's easy to see where the intelligence, and common sense lies and where it does not. It' a funny thing how the most exceptional and intelligent workers are illegally forced out of their jobs, while those with less qualifications with no intuitive thoughts or ideas constantly get promoted. Now we can all see where this has led - non-attorneys and obeyant idiots running trying to run a legal hearings entity full of judges and attorneys. FYI, I do not believe posting here is a list cause, anymore than already having gone to Congress and myriad media. Just saying..
Spoken like a true 100k fed working in the star chamber. ;)
ReplyDelete@2:32, stated, "Ask most SSA employees how they view claimant representatives and you get a variation on the theme they are all useless blood sucking leeches."
ReplyDeleteIf things have truly disintegrated to this, and I fear it may have thanks to current ODAR management and their misguided attitudes and focus on numbers, it is very sad.
I am legacy SA 27 who was illegally forced out of my job. Having been a SA since the start of the program in 1995, one of the things I prided myself on was having good communication with claimants representatives who routinely practiced in my office. They always knew they could contact me to discuss a new potential O-T-R, an existing case we had been working, and occasionally, questions about the law. We got along well, and respected one another. We liked and cared about one another. Before we had security guards and locked work areas, they knew my door was always open. It was not uncommon for them to drop by and say, hi. Even with modern telework, I always gave them my home phone number and permission to contact me. To this day, I have very high opinions of them. The SA program without all the restrictions placed on the program over the years must be reinstated, and this type of interactions with claimants representatives encouraged. Contrary to many assertions by management the SA program was not effective and simply paid down the backlog, none of this is true. The real unskewed statistics from the SA program reveal this.
Interesting to note. On pages 18 and 19, they add 43,600 + 50 + 50 + 10+ 10'and they come up with a total of 436,120. I guess this tells how much attention to detail and consequences was devoted to putting this together.
ReplyDeleteWE are doomed if something doesn't happen soon. As for that management person who keeps telling people not to post complaints about inept management, don't you just wish you could put that toothpaste back in the tube. More and more things are going to come out in this brave new world, so hold on to your hat, its going to be an even bumpier ride.
ReplyDeleteIf it wasn't so serious, this would be comical. Here are the top 5 reasons we w/draw from cases:
ReplyDelete1. The client disappears. Am I going to drive 75 miles to the hearing? Not a chance. Per my contract, this is grounds for withdrawal. Ciao.
2. Client goes to jail! See #1
3. Client decides crack is a better pain reliever than his TENS unit. Probably is...but see #1
4. Client goes back to work (or never stopped). Glad you've improved...buh-bye; and
5. Client fired me. (what the...why that so and so...)
Frankly, I don't give a rats ass about some ALJs analysis of Special Circumstances. We advise the client of the criteria. We are in keeping with our state's ethics requitrements. that's it.
ReplyDeleteHey Legacy SA#27:
We've read you positions for months (years?) ---- for those of us who don't remember or are new.........what happened to you, why and do you still work for SSA - and in what capacity?
Heh. Reps are getting a taste of what rank-and-file ODAR employees deal with daily. It's a dreary culture of mistrust. Management assumes no one can be trusted- not employees, not claimants, not reps. They see potential dishonesty and fraud around every shady corner.
ReplyDeleteTry and be an ALJ who shows up for the day of hearings and the firm that has represented the claimants for 2 years withdraws the week of the hearings - no reason, sometimes does not even the clients (usually because the claim is worthless). The taxpayer has footed the bill for the ALJ's time, the VE, and hearing reporter, only to have the claimant ask for a postponement to get a new rep. Instead of explaining to the client the benefits of dismissing the claim instead of getting an eventual unfavorable decision, the client waits more months, and gets their case put back into the "backlog". When you have multiple days like this, the money adds up. Just like in real court, they should have to get permission to quit unless their client fires them or withdraws the claim.
ReplyDeleteIronic. "....we seek to ensure that our rules of conduct and standards of responsibility are clearer as a whole."
ReplyDeleteThen they propose standards that are so vague they will undoubtedly result in inconsistent adjudication. I will save it for the comments.
@7:14
ReplyDeleteI see your point but I don't think the proposed solution will work as well as other options. Attorneys already have legal duties to properly advise and competently represent their clients. There is a large body of advisory opinions and jurisprudence on what that entails regarding disengagement. The bar and SSA can sanction them for violating those duties. Enforcing violations of those existing rules could discourage the undesirable conduct without placing reps in untenable ethical positions that I can imagine cropping up under the proposed rules.
@12:40AM:
ReplyDeleteSA 27's situation has been explained in detail. If you truly read this blog regularly, you would know that.
I think that the ALJ (Aug 16, 2016 @ 7:14 am) hit the nail on the head. Representatives that unsuccessfully attempt to contact their client 2 days before the hearing then withdraw with no explanation are wasting hearing slots that could be held by a truly disabled individual. The message to representatives is shortcuts are not acceptable and the U.S. taxpayer will not foot the bill for your incompetency any longer. Suggestion: require your case managers to have bare minimum monthly contact with client acquiring new medical sources to obtain records from and updating an address change, potential address change or 3rd party contact then three weeks before hearing start the weekly contact. Notify ODAR if unable to contact claimant possibly they may have a lead.
ReplyDeleteAs to the 5 reasons 1. The client disappears.
Notify ODAR ASAP for Postponement till the client can be found.
2. Client goes to jail!
Jail hearings are done every day.
3. Client decides crack is a better pain reliever than his TENS unit. Probably is...but
This issue is for the ALJ to determine.
4. Client goes back to work (or never stopped).
If the claimant no longer wants a hearings - submit a withdrawal of hearing request otherwise at a hearing a ALJ will address these issues.
5. Client fired me. (what the...why that so and so...)
Notify the ODAR ASAP with a narrative if you so desire then the client can get a Postponement to obtain a new representative.
ReplyDelete"Frankly, I don't give a rats ass about some ALJs analysis of Special Circumstances. We advise the client of the criteria. We are in keeping with our state's ethics requitrements. that's it."
You should brush up on Federal preemption and how it deals with, say, a Federal Regulation from the CFR and a conflicting State Bar provision ;)
@12:41PM
ReplyDeleteNot sure what world you live in with your suggestion of such frequent contact and requesting of records. Clearly you have unlimited resources for staff and medical records costs.
As for withdrawing with no explanation, from my experience, the most frequent reason for withdrawal AFTER a hearing has been scheduled, is because evidence comes to light that the client had to disclose to you, i.e. has been working, has been abusing drugs and dishonest with rep about it, or has been malingering and will perjure themselves when they testify. These are all valid reasons for a rep to withdraw but none are reasons we could disclose as a basis for our withdrawal. How would you suggest we deal with any of those situations.
I can understand setting a reasonable time limit on withdrawing (say 1 month or 6 weeks prior to hearing). A rule prohibiting withdrawal after the hearing is scheduled is just a way to stick it to claimant's reps. It's basically forced labor legal aid. SSA doesn't want claimants showing up to hearing unrepped, and simply wants to stick law firms with bad cases (and all costs involved for the firms) so they can get easy, hassle free denials out.
ReplyDelete@2:24
ReplyDeleteSSA doesn't want claimants showing up to a hearing unrepped?
@2:31, no, they don't.
ReplyDeleteIf a claimant shows up to the hearing unrepped, one of two things happens. 1) The claimant can request PP to request time to get new counsel, which ODAR has to grant even if the attorney withdrew a month or two prior to the hearing; or 2) They can go forward with the hearing, but the hearing will take longer b/c of extra due process the ALJ needs to ensure with an unrepped claimant. Having an attorney present with a claimant allows them to quickly go through hearings and issue their denial. This proposed game of hot potato is SSA's way of forcing law firms to hold onto cases to make it easier on them to issue decisions (denials) on the merits.
@3:41 PM. You nailed it!
ReplyDeleteI haven't seen a new or proposed rule come out of SSA in the past year or so that has had anything to do with due process or with making fair and appropriate decisions, every thing is about efficiency and moving cases.
The powers that be at SSA really want decisions on the merits. Even when a client with a crap case no-shows, most ALJs will not allow me to withdraw at the hearing so they can issue a dismissal. They want to make a decision on the merits, even though dismissing the case is easier.
ReplyDeleteIf SSA is concerned about unethical behavior then they should get rid of non-atty reps. Attys are bound by the cannon of ethics and can be subject to discipline or lose their license if they act unethically.
ReplyDelete@7:46,
ReplyDeleteAmen! How being a non-attorney rep is not considered "unauthorized practice of law" is beyond me.
@5:50 wake up and smell the coffee. PTBs won't let you withdraw because it slows down case processing.if you withdraw, claimant can postpone and that results in one less widget completed for the month's tally.
ReplyDelete@9:00 PM,
ReplyDeleteBecause representing claimants in front of SSA is not practicing law. There is no opposing counsel to cross-examine claimants or challenge the rep's arguments. ALJs can serve those functions on SSA's behalf, but how many areas of law can you think of where the "opponent" is legally obligated to help you make your case?
7:42 AM If that is so, please help me! If I can't get a doctor to document my limitations, are statements by doctors about "polyarthritic pain" in the back, both hands, both shoulders, knees, etc. due to ankylosing spondylitis, oesteoarthritis and fibromyalgia along with my testimony enough to convince an ALJ based upon "merits." I do have other, non-exertional limitations as well. DDS determined I could do sedentary work. I don't know about doctors in other areas, but those in mine aren't the best record keepers. The rheumatogist who diagnosed me with fibromyalgia said, when I asked her to elaborate in her notes a defendable diagnosis, "I make my records for medical purposes, not for Social Security!" I have asked my primary doctor, two other rheumatalogists and my neurologist to help me, all of which fallen on deaf ears. I believe they are afraid to help, not just not wanting to be bothered. The rheumatology clinic (the only one in the area) has an official policy that prohibits it. So, what is someone supposed to do? Should the "merits" of a case be decided only upon the quality of records a doctor keeps? How do you find doctors that are better record keepers?
ReplyDelete"Because representing claimants in front of SSA is not practicing law. There is no opposing counsel to cross-examine claimants or challenge the rep's arguments."
ReplyDeleteAh, this fallacious argument again. If you have practiced SSA law in the past 5 years, many ALJs can and do challenge claimants and reps vigorously.
Gentlemen and Ladies, as I have said before, this is the largest law firm in the world, managed by non-attorneys. Why would expect less than idiocy?
ReplyDelete@8:45 AM,
ReplyDeleteThat was covered in the second part of the post. Read the whole thing, and then name another area of law where the other side can be compelled to do your discovery for you if you are terrible at your job. Try telling an insurance defense attorney that he/she has a duty to develop your claim for you.
SSA representation doesn't begin to resemble legal practice until a federal court appeal is filed. Even then, the parties are held to very different standards of conduct.
@ 9:32,
ReplyDeleteIn civil court (State and Federal), a judge can and will subpoena evidence from uncooperative sources. Try getting an administrative subpoena enforced. It's an apples and oranges comparison. Can you name another area of law where the fee is capped at $6,000, no matter how much work you put into a claim?
@10:19
ReplyDeleteNot 9:32, but I could name VA disability representation and it being capped at $10 last I checked. I agree with your point though.
It appears from the outside looking in that there is a culture of mistrust and suspicion within the agency towards claimants and claimants reps. All reps seem to have been tarred with the Conn brush. It seems that we have many people within the agency doing everything they can to make Disability practice as onerous and non-remunerative as possible. What these short sighted people fail to realize is that, in a country with Due Process, the system cannot work without claimant's representatives. A hearing often takes twice as long with an unrepped claimant.
ReplyDeleteTo folks at the agency: you can still do your jobs and not be giving away benefits to undeserving applicants while being cooperative, easy to work with, and behave in a polite/professional manner towards claimants and claimants representatives.
"Can you name another area of law where the fee is capped at $6,000, no matter how much work you put into a claim?"
ReplyDeleteLol, can you name another area of law where you are directly sent guaranteed payment? Where your burdens of production, persuasion, etc. are all as easy as here? A previous commenter did a pretty slick job at trying to equate an ALJ's duty to a court subpoenaing a hostile witness or party for evidence, but that is not hardly the burden SSA has. SSA has the complete and total burden to make sure all relevant evidence is in the file EVEN IF AN ATTORNEY IS REPPING THE CLAIMANT! Not just to extract evidence being secreted away by unwilling parties--an affirmative duty to seek out and get all relevant evidence even if an attorney is on the case. Be honest, there is no other system like that.
I don't even have a problem with SSA reps, the local bar around me is full of good attorneys and even nonattorneys. But please. No attorney in their right mind can deny this area of law is not nearly as demanding as far as your professional obligations, timelines, scheduling cases, getting paid, etc. than pretty much every other area of law. Yours and every other Bar association in the US doesn't even consider repping claimant's at ODAR the practice of law, so...
@3:28,
ReplyDeleteSome argue ALJs aren't real judges. They can't issue enforceable orders, hold people in contempt, preside over one limited area of law, and don't preside over matters involving formal rules of evidence or civil procedure. That knife cuts both ways. SSD is a volume practice. There is no other way to make money when each case only pays a max of $6,000, and the average (at least our average case) pays $2400. In today's environment, there is 0 guarantee of even rock solid cases being paid. In the last year, I've had a claimant with 3 back surgeries in 2 years and a good work history denied by both the ALJ and AC. In today's environment, you will lose a large portion of cases you take on, and since most claimants are civilly judgment proof, you will not collect fees on many of these cases. Our firms largest expense after employment of staff is unreimbursed medical record bills. It's a way tougher business than you think. If it was as easy as you say, you would see people clamoring to enter the marketplace and business booming (like 2009, 2010). Today, the largest Disability firm in the country went bankrupt, many solo practitioners have retired, and many small firms have shifted their practice away from disability.
I put "firms" when I meant to put "firm's". I wish there was an edit button!
ReplyDeleteI'm tired of the knocks on non-attorney reps. Like attorneys, the quality of representation provided varies. Attorneys fly in and call their client in the waiting room hoping they are there and meeting them for the first time right before the hearing. Since representing ss/ssi claimants is all I do, I have an interest in developing the case early in the process and working with the claimant to make a good case. Once I have submitted the representation forms, I only withdraw from a case if the claimant fires me (in writing). If the claimant is not disabled or the disability can't be distinguished from drug and alcohol use, I don't take the case in the first place.
ReplyDeleteI do see problems with SSA only acknowledging individual reps and not law firms. I got a case that had been in a law firm but 3 different reps had worked on the case, left the firm, and the claimant went to the first hearing with no rep present. The firm kept the case and messed it up, but the successive individuals who worked on the case did what they could when they had each had the case (which wasn't long).
To get back to the original topic of the proposed changes, I am surprised no one has brought up this proposed change:
ReplyDelete"we propose adding an affirmative duty in § 404.1740(b)(3) requiring
representatives to provide to us, on our request, a specified number of dates and times the representative is available for a hearing."
I cannot conceive how this is workable and who would administer it. I go to 9 different hearing locations presently, each one is a different distance of travel. What happens if 2 ODARs want me in the same place at the same time.
Even in a situation of dealing with just a single ODAR, the time we allot for a hearing varies based on who the ALJ is as some do 30 min hearings and other take 1:30. How would this be handled?
Its all fine and good to specify a proposed change, but when it doesn't come with any details, how can we even truly understand or comment on it.
You can comment on it based on your real-world experiences. If you happen to be attending hearings based on the scheduling of others outside of your control, you simply state that. However, if you are a sole, or small firm, practitioner,you comment based on who has control of your scheduling. If someone else is controlling your scheduling, and you can't find a way to meet those scheduling demands, your issue is not with the proposed regulations, but with the people that you work with. That's all there is to it.
DeleteWell said. So quit your bellyaching!
Delete@ 5:52
ReplyDeleteMaybe you should talk to some of your attorney brethren who practice in State courts and find out how they manage to attend scheduled hearings/trials/etc. when they aren't involved in the scheduling process at all (save for small windows of secured leave) and have ZERO idea how long it will take to have the motion/trial/etc. heard (most courts give you "AM" or "PM" only, and even that isn't accurate a lot of the time). Somehow they make it work...
@ 12:11PM We make it work in State courts with repetitive continuances and court staff who are accommodating to attorneys when its needed.
ReplyDeleteexcept in real law land, the only acceptable reasons to ask for a continuance due to your availability are: 1) I am on secured leave; 2) I am scheduled already before another tribunal; 3) I'm kidnapped; 4) I'm dead. Also, all parties have to accept the continuance. How many of you let your client know you are going to ask for a postponement when you do or that their hearing was delayed because of your availability? I have a sneaking suspicion that if we automatically fired off a letter to the claimant noting the specifics of the postponement, this practice would slow down greatly.
ReplyDeleteLook, I get that life happens and I don't even mind (within reason) working with reps on the front end while scheduling, but our postponement rate for reasons involving the rep's availability is way too high considering this front end effort. I always want to ask reps to their faces "does the claimant know that you asked for the postponement because of your availability?" "Do you feel even remotely bad that you are delaying the resolution of the most important issue of your client's life for your own reasons?" "Do you even care that your postponement will delay your client being paid if issued a favorable decision by a few months?" "If you don't have an open slot to attend a hearing over the next four months, are you capable of zealously representing all of your clients?"
But, of course, I can't ask such things.
You do not need to ask such things of the representative. You should be asking those things of the judge involved. Does your judge allow for every possible reason thst the Rep is unavailable? Or does your judge only allow for postponement for the benefit of the claimant? Those are the questions that matter.
DeleteThe Mettaire, LA ODAR schedules hearings, sometimes less than a month out, without even calling attorney offices to confirm availability of a rep. They then refuse to entertain postponements.
ReplyDeleteand the local bar is not up in arms en masse over this, because?
ReplyDelete@4:14 PM. "I am scheduled before another tribunal" is precisely what I was suggesting with my original post at 5:52. I have 9 different places I may need to be between 5 different ODARS. Will I give each one my availability or will I give it to some central scheduler in Baltimore? I'm just trying to fathom how this system may work. It's not to say that it can't but I don't currently see scheduling as a major problem from the rep side. The bigger problem is that if you go to most ODARS on a Friday or Monday you will likely find that most of the hearing rooms are not being used.
ReplyDelete"The bigger problem is that if you go to most ODARS on a Friday or Monday you will likely find that most of the hearing rooms are not being used." I believe you can file that one under judicial independence - ALJ's tell the scheduler what days they will do hearings. The present mandate from above is that ALJ's may only hold 60 hearings a month presumably so they will have the time to actually utilize the tools given to them (EBB) to review cases. Most of these ALJ's are incapable of utilizing two monitors at the same time!
ReplyDeleteYou have no idea what you're talking about.
Delete
ReplyDeletehmmmmmm.......Monday and Friday empty hearing rooms........sounds like the experience of telework across SSA........Telework allows staff to "start" an early weekend on Friday and extend it into Monday late starts........
the ALJ scheduling problem will slowly be fixed. As we keep hiring ALJs but shrink (or at least, don't grow) offices, there is more and more hearing room scarcity. Couple that with mandates that ALJs must consistently schedule a certain number of cases to keep telework and to get to their 500 dispo goal, you're going to start seeing more and more Monday and Friday hearings.
ReplyDeleteWith the way things are going in this regard, not every ALJ will be able to telework Monday and Wednesday, hold hearings Tuesday and Thursday, and take credit hours on Friday using the eight hours of credit ALJs recently have been allowed to earn over the course of a weekend while teleworking. But a lot still will ;)