My Take On Encouraging Representation

     I had posted a link earlier to Social Security's request for opinions about how to increase equity in Social Security's programs and services. One question they asked specifically is "Are there incentives or other changes you suggest for encouraging attorney and non-attorney representation for claimants of color and other underserved communities?" I addressed myself primarily to this issue since it's the one I know best. Below is a somewhat edited version of what I posted. Post your own opinions on Social Security's website.

I represent Social Security claimants so I have some knowledge of this subject as well as a self-interest which I acknowledge.

I suggest that the agency admit it lacks manpower to provide effective assistance to claimants. Since that is the case, it should enable third parties to make money providing those services. This may be a bitter pill for the agency to swallow but it is time to be honest about the situation.

The Social Security Act says that fees for representing claimants must be approved by the agency. 42 U.S.C. §406(a)(1). The agency has interpreted this provision broadly. Its position is that charging a fee just to help a claimant file a claim or an appeal must be approved by the agency. As a result no one is providing these services for a fee apart from those seeking contingent fees for much broader representation. This leaves a large number of people to seek services that the Social Security Administration is unable to supply. Social Security should announce that that merely helping a claimant file a claim or an appeal is not the sort of representation for which fee approval is required. This would allow attorneys and H.&R. Block and whoever else to provide these services for modest fees. As an alternative, if the agency still wants to control these fees, the Social Security Act provides authority for the Commissioner to simply approve a maximum fee. ("The Commissioner of Social Security may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim ...) The Commissioner could announce that the maximum fee to help file a claim is, let's say, $250 and the maximum fee for helping to file an appeal is $100. Those providing these services would not have to submit a fee petition. I will concede that this suggestion helps those with some money more than it helps the destitute but one would hope that even the poor could come up with the modest fees I'm talking about. It would also free up agency personnel to provide more help for poor claimants. If Social Security cannot itself provide these services to all who need them, why stand in the way of others providing these services for modest fees?

We also need to have more disability claimants represented throughout the process.

When it's hard to make a living as a Social Security attorney, as it is now, the first thing you do is to be more careful about the cases you take on. This leaves more claimants with marginal cases without representation. This has the effect of discouraging them from pursuing claims. I'm sure that hearing offices notice that a significant percent of claimants never appear for their hearings. Do they notice that almost all of the no shows are unrepresented? Probably the biggest reason for the no shows is that the claimants have tried to find an attorney but became discouraged when they were turned down several times. Less obviously, potential claimants never file a claim to begin with because they couldn't find an attorney. However, cases that may appear weak when an attorney makes a quick decision on whether to take on a client may actually be much stronger than they appear.

How do we encourage attorneys to take on more cases? The incentives must be economic so, yes, my recommendations will be self-serving. Raising the fee cap and indexing it for inflation is the obvious start but that only gets us so far. Notice that SSI claimants are represented at a lower rate than Title II claimants. There are many reasons for this, including the fact that SSI claimants have less access to medical care, but the lower benefit rate for SSI claimants is a major factor, since that means a lower average fee. It would take legislation but the attorney fee in SSI cases could be changed to 1/3 of back benefits or there could be a minimum fee for SSI cases. 

 If you really want to encourage representation, extend the Equal Access to Justice Act (EAJA) to Social Security. EAJA shifts the fee burden to the agency when it loses. EAJA covers most adjudication at other agencies. Why except Social Security?

It would also be great if Legal Services had much higher funding so that its affiliates could once again represent claimants in a big way. That hasn't happened since the 1980s!