The Social Security Administration is publishing final Rules of Conduct and Standards of Responsibility for Appointed Representatives in the Federal Register on Monday. You can read them today. The new rules will be effective 30 days after publication. Here are some excerpts:
... A representative should not withdraw after we set the time and place for the hearing ... 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:
(i) The representative’s employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or
(ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence. ...
Disclose to us immediately if the representative discovers that his or her services are or were used by the claimant to commit fraud against us....
16 comments:
Any guidance on how attorneys are supposed to protect the attorney-client privilege while complying with these rules?
How are other attorneys handling this? File a standard objection letter (in every case) in advance of the hearing objecting to any SSA rules which may impede or interfere with the attorney-client privilege
9:56 - Are you an attorney? Since when is crime-fraud protected by the attorney-client privilege?
@9:56
"Any guidance on how attorneys are supposed to protect the attorney-client privilege while complying with these rules?"
Supremacy Clause of the Constitution? This practice is governed by federal Law and regulations which, I assume, take precedence over any state statutes, regulations or disciplinary rules. If that were not the case, then every non-attorney representative could be charged with practicing law without a license. The same would apply to attorneys doing hearings outside of the state where they are licensed.
Got some real heartburn here.
Problem 1. Representatives are getting the ball kicked into their court uh office to give up on representation earlier. Claimants drop off radar and pop back up. Now the representative needs to give up on the disappearing claimant sooner. Not every representative does all their work with one office. Many are located in areas where claimants living a few miles apart are served by different offices so the representative has to know that if Joe Smith disappears to withdraw 180 days after filing request for hearing and if Mary Doe disappears to withdraw 240 days after filing.
Problem 2. It isn't the agency's business if a representative looking at the file thinks the claimant might want to visit a cardiologist to assess what has been provisionally diagnosed a seizure disorder nor suggest that maybe a person who worked the same job for 20 years and now cannot do that work and can no longer hunt fish might want to visit with a mental health professional.
Now a financial relationship with someone providing an opinion, that is logical and presumably almost scarce as hen's teeth. Disclosing an ongoing criminal action, that rules of conduct already cover that for lawyers.
Just drafted a form letter to use in cases where my clients drop off the face of the earth pre-hearing. I incorporated SSA's response to a comment in the NPRM:
The American Bar Association (ABA) Model Rules of Professional Conduct Rule (Model Rule) 1.16 includes requirements for withdrawal similar to this regulation. Some examples of “extraordinary circumstances” under which we may allow a withdrawal include 1) serious illness; 2) death or serious illness in the representative’s immediate family; or 3) failure to locate a claimant despite active and diligent attempts to contact the claimant.
[to a musical tune] federal laws, regs, etc. preempt State/local Bar rules...
I think the real issues here are
1:) dropping a client. Often times we obtain medical records after the hearing is scheduled as we update the file and get it ready. If we discover something in the med records or decide based on the med records that the claimants has a low chance of success, under the new rules we must now ask for permission to withdraw and disclose the reasons why in order to prove good cause. This obviously would impede on the attorney/client privilege.
2:) disclosing to the court when we give the client a form to have their treating physician complete. Often doctors will decline to fill forms out for a variety of reasons including they just don't want to because they are too busy. Judges will use the fact that the treating physician declined to complete a medical source statement as evidence that they do not believe the claimants impairments are severe. disclosing when we provide forms to the clients for their treating physicians clearly violates the attorney client privilege.
the second poster @9:56 clearly is not an attorney nor does he /she understand the issues. no one is claiming an attorney can be a ary to fraud. However, I believe the ABA rules require you withdraw and not disclose the reasons why you withdraw as to not cause prejudice. Routinely in criminal cases, where the attorney discovers information and the client chooses a course of action contrary to the facts of the case, the attorney will withdraw and claim a conflict has arisen without disclosing the conflict. These new rules fly in the face of the ABA model rules and would require attorney's to violate the attorney/client privilege.
I think the first poster was asking how to address them. Do you object up front in every case on a standard form letter? when an issue arises and you need to withdraw, how would you do this and show good cause? If you obtain medical evidence that demonstrates there is a low chance of success how do you withdraw after a hearing is scheduled? requiring firms to obtain medical records numerous times over the course of waiting for a hearing is way way overly burdensome and not practical.
(sorry in advance for any typos... typing this quickly on a Sunday morning)
@3:46 Federal Regs dont'necessarily preempt state laws. Fed Statutes do.
@8:07, where does the rule say that you have to disclose if you gave the client a form for the doctor to fill out, and the doctor refused to fill it out?
The limitation on withdrawals is an absurd rule. No rep is going to withdraw from a legitimate case that can win, anyway. A rep will only withdraw if client disappears, client is not cooperating (won't return calls, acts disrespectfully towards the lawyer, etc.), or the case is meritless. Case can't progress anyway if client disappears. A lawyer shouldn't be forced to work with a non-cooperative client (and ultimately won't be able to anyway). If case is meritless, forcing the lawyer to proceed is only a waste of the lawyer's time and benefits nobody. Moreover, forcing the lawyer to proceed forces the lawyer to violate the bar rules prohibiting maintaining a meritless action. Furthermore, forcing the lawyer to proceed in a contingency matter that, has little to no chance of success (and pay), is also a violation of the involuntary servitude prohibition in the 13th amendemnt. Lastly, forcing the lawyer to disclose case has no merit, as a condition to being able to withdraw, is a violation of attorney/client confidentiality rule. No matter how you look at it, the prohbition against withdrawing after case is scheduled is a useless and absurd prohibition, that benefits noone, and serves no purpose.
Your analysis regarding the withdrawal notice rule is absolutely correct.
In regards to the disclosure of opinion evidence. I may have been reading too much into it. However, this excerpt below is taken from the Administration's response to a public comment. As I read this, I still beleive they want us to disclose when we send a form or something similar to be completed by a medical provider.
"When a representative submits a medical or vocational opinion to us, he or
she has an affirmative duty to disclose to us in writing if the representative or one of the representative’s employees or contractors participated in drafting, preparing, or issuing the opinion. For clarity, we consider providing guidance or providing a questionnaire, template or
format to fall within the parameters of this rule when the guidance, questionnaire, template or format is used to draft a medical or vocational opinion submitted to us. In response to the concern that the term “prepared” is vague, unless the context indicates otherwise, we intend the ordinary meaning of words used in our regulations. We intend the word “prepared” here to have its ordinary meaning. Representatives also have an affirmative duty to disclose to us in writing if the representative referred or suggested that the claimant be examined, treated, or assisted by the
individual who provided the opinion evidence. However, we are not seeking privileged or confidential communications concerning legal advice between an attorney and client, nor are we requiring disclosure of detailed communications. We are only requiring that representatives disclose the fact that they made a referral or participated in drafting, preparing, or issuing an opinion."
@ 8:48, the issue, as I see it, is whether or not we are required to declare in writting that the BLANK form the doctor completed was provided to the doctor by us. It's obvious the doctor is filling out the form and not creating the questions, which were created by someone else. My main concern is that stating the obvious in writing could lead to some confusion by Social Security, who may misinterpret what we are stating. Clearly, it is only the comment and not the actual regulation that raises this as maybe being required (depending upon how you interpret the comment). Anyone else want to weigh in?
I agree - whether we are required to inform the ALJ that we provided a blank form to the TS def falls in the grey area. To be safe, I plan on drafting a boilerplate letter to send in with the MSS/PRFC/MRFCs we obtain from a TS. Just inform the ALJ that a blank form was given to the TS to obtain his/her option. The attached form was completed entirely by the TS. I'll attach my boilerplate lr to the MSS/PRFC/MRFC and submit to the ERE. That way, there should not be any confusion as to how I obtain the statement from anyone reviewing the file - whether at A/C or District Ct.
What if you refer to a business rather than an individual? Obviousky, I am excluding a one person business. If i refer to the local mental health center then I have no idea who they will see!
It seems SSA has decided to make its rules more complex and difficult to comply with, while at the same time inviting a new flood of required letters into it’s already bloated claims files. I just can’t wait to see how high denial rate ALJs are going to abuse the information generated by this rule. Represtative provided a blank questionnaire to the doctor? No weight to any opinion of serious limitations. Rep helps a mentally challenged client find a doctor who accepts their insurance? Not only will they not give weight to their opinions, they might ask for investigation. Just lovely.
Who knows how to interpret this absurd rule?. Irony is that good reps, who they needn't worry about anyway, are struggling to understand what this means, and the bad reps will never even bother reading the rule, much less complying with it. It's like putting a sign in a store telling people not to shoplift. The honest people don't need the sign, and the shoplifters won't follow the sign anyway
Interesting point I noticed in the new rule. As we all know, an executive order was signed to limit new regulations that might needlessly put additional burdens on businesses. Interestingly, the new rule gets around having to address this issue by stating:
"We certify that these final rules will not have a significant economic impact on a
substantial number of small entities because they affect individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended."
How exactly is a rule that only applies to representatives and lawyers a rule that "only affects individuals" and no businesses? How come no one has addressed this obviously inaccurate certification?
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