The Center for Retirement Research at Boston College has posted a "working paper" by Cody Tuttle and Riley Wilson on The Impact of Claimant Representation Fee Schedules on the Disability Applicant Process and Recipient Outcomes. Tuttle and Wilson seek to prove the hypothesis that after the maximum fee that can be charged by an attorney for representing a Social Security claimant was increased in 2002 and 2009 that attorneys delayed their clients' cases so that they could draw the now higher maximum attorney fee. The two had one big problem. While they had data showing that wait times had increased in general they didn't have data that distinguished represented from unrepresented claimants. They "solved" this problem by assuming that the overall increase in average wait times was solely due to a large increase in wait times just for unrepresented claimants with the unrepresented claimants suffering no such delays. I would call this a whopping leap of faith. The researchers noted that the country was in recession both in 2002 and 2009 and wondered whether that might have something to do with it. The possibility that things were going on specifically at Social Security that caused increased backlogs for represented and unrepresented claimants alike appears to have not occurred to them. Actually, things were going on at Social Security in both those years. You can take a look at a GAO study from 2002 and a New York Times piece from the same year on increasing backlog problems at the agency. Here are some stats from 2009 showing wild increases in backlogs in that year. You can understand why backlogs might have been increasing in those years by looking at the chart above. Click on it to view full size. Note that in 2002 and 2009 claims were increasing a lot faster than awards. Why would that be? Awards were trailing because of increased backlogs.
How did a "working paper" this shoddy get published? Was this nonsense peer reviewed by anyone?
23 comments:
This is an oversimplification of the paper. It uses two different methods to estimate the effect of increasing the maximum representative fee. The first one compares low benefit with high benefit applicants, on the assumption that high benefit applicants are more likely to be affected by the increase in the maximum fee. They do this in four different ways, looking at both fee increases, and find positive results in every model. You could argue that high benefit applications are more likely to be backlogged for some reason, but you can't say that this paper just assumes the increased backlog is a result of the maximum fee increasing.
The second method they use, with bunching, is more complex and I'm not going to pretend to fully understand it, but again, the summary you give is definitely an oversimplification.
Let's be honest- SSA needs to get OUT of the fee regulation business. This is an interference with the contract between a claimant and a representative. If they feel that people need to be protected from lawyers- then provide proof that they are a danger. Otherwise quit trying to parent SSD recipients and let them make their own bargains.
In addition- I've never - EVER - seen evidence of a widespread pattern of intentional delay by representatives. This is a strawman that some folks like to trot out every so often and flog to tout the evils of reps. Unproven, inaccurate and misleading at best.
Wow, those reps must have had a lot of foresight to start delaying cases in 2000 and 2008, prior to passage of the 2002 and 2009 fee cap raises.
Representation means quicker decisions, and if the representative is actually effective (most are), a better chance at an award in a given case.
This is absurd. I would rather have a quicker award, albeit a smaller fee, because that labor could be contributing to a different client. There is absolutely no point to delaying a decision.
Also, I'll not run the math, but I expect in 2010, until recently, the decisions were so delayed that the fee caps were reached relatively early in the life of the claim. Meaning any additional delay was not increasing the fee in any given case.
Very good post. Especially like the link to the old 2002 NY Times article. Very thorough.
It is unquestionably a belief within Social Security that attorneys delay cases to amplify fees, either by insuring cases are denied on initial or reconsideration to get to the hearing level, or be requesting postponements at hearings or by delaying submission of evidence to delay decision. We can tell people this would, one be economically stupid for the attorney to do for a variety of reasons, but nothing will convince the rep haters in the SSA that it isn't so.
This was in part the genesis of the five day rule for example.
There are even those that believe that attorneys deliberately sandbag cases at hearings to get to the Appeals Council or Federal Court to be able to seek uncapped fees under two tier agreements. Again, not true but truth seems to have little to do with it.
It is also true that in the period of the last year when the backlog of cases dropped suddenly, a combination of low receipts and backups at teh State Agencies, with hearings scheduled in less than a year. there was some talk that attorneys told ALJs to slow down because they were losing money. Again, the stories always were of the I know a guy pattern but there may have been reps stupid enough to make those comments. I don't know.
The reality is that the changes in the cap amount int he past were so small that delaying a case to take advantage of the change would have made no sense at all, even if it were possible.
The entire article is behind a pay wall so I can't read it beyond the abstract. But, frankly it seems like so many articles by economists, more in tune with abstract concepts rather than anything that exists in the real world. As Truman said, give me one armed economist.
Let's face it there is a financial incentive for attorney's to delay cases if the max fee is going to increase.
Similarly if a claimant receives a fully favorable ALJ decision where processing the award is delayed in the PSC, the attorney may get a larger fee (25% of past due benefits if this is less than $6000) if the processing of the award is delayed a month or two. Sometimes the PSC makes a mistake and processing is delayed until the attorney calls.
It is unrealistic to think that no attorney at least thinks of these factors when they are making decisions, and it may even have a subconscious effect on the way they handle the case and whether they push it to be processed quickly.
Easy solution here: create a minimum fee. Eliminate any incentive to drag the case out. If there's an adequate minimum fee, the incentive will be to get the case approved as quickly as possible. Of course this would require a major overhaul of how cases are handled at the initial and reconsideration levels. Give reps true access to ARS (like they have once the case reaches OHO) instead of the garbage, pretend access they currently have at these early levels of adjudication. If reps and SSA could work together to develop cases earlier on, the process could be so much more efficient.
That being said, I'm afraid that efficiency isn't SSA's goal. If that ever changes and the focus becomes getting as many truly disabled individuals on benefits as quickly as possible, there are a lot of options on how it could work. Reps would be able to help in a significant way, so long as they can be compensated for their work. (Remember, it's not our job to fund a broken system).
Let’s see how this works. SSA says each pay is worth the equivalent of $300,000 over the life of the claim. Most backpay awards are not full fee awards. Most average about $3,000. So a full fee is 2% of the award. An average fee is 1% of the award. Most attorneys only win 50% of their cases, if that. Do the math.
Personal injury attorney’s charge 25-33% of the full payout. Their cut would be $75,000 to $100,000.
So do you really think an attorney is going to delay a case for a few bucks when the ONLY way to survive is volume business. They don’t have the time and it would cost more in administrative staff expense to “work the system” as alleged IMHO.
@ 4:12 - I don't know if you and some of the other commenters on this thread just despise reps or if performing simple math has been lost on all of you. All this nonsense about reps intentionally delaying cases is absurd....let's do some simple math. I take an initial application (which most reps don't do BTW), and my client gets denied. I have 60 days to file an appeal. Client is denied again and we now have another 60 days to file the req for HRG. Sooo, that's 4 months TOTAL that we actually have control over. How much time it takes DDS to make a decision and then the hearing to be scheduled afterwards is out of our hands. I'm going to assume that any reasonable person would not count getting these appeals filed in half the time (30 days to file recon and 30 days to file req for HRG) as being unethical or anywhere close to delaying, right? (remember, I said "reasonable" person) Now, let's say we're trying to make payments on that 3rd yacht that everyone seems to think we have and we try to "delay" the case....just how much can we even do that if we wanted?? We wait until the 59th day to file both appeals (recon and req for HRG) we've "delayed" the case an extra 2 months total...2 months!! Ave PIA is say around $1,100, so backpay goes up $2,200 due to our "delay". We get 25% of that or $550 for our misconduct. Of course, because of that delay we have more staff time and medical records/expenses in the case, so you're probably looking at MAYBE $400ish or so extra. I don't know about you, but my reputation and morals are worth a lot more than that, and I suspect others are the same.
Frankly, we don't have the time to sit down and figure out what each case is going to pay and when. We want to get decisions because that means money. if I can get a small fee on a case at the initial level, I'm happy because then I can spend my time working on more cases instead of taking that one to a hearing. I'd actually rather win more cases at the initial level and spend less time preparing for hearings. From what I've seen, its not the reps who are delaying claims. We send paperwork to SSA just to sit on someone's desk for weeks or months. We send information to DDS that is just ignored. It recently took us months to get a mistake corrected where a request for hearing had been processed by the local office as a request for recon and was denied because it had already been decided at that level. It not only took months but a call to a Congressman's office. There are many good employees at SSA but there are also some who don't seem to care if these things ever get processed. The agency also seems to like delay. Many of the policies cause unnecessary delays. I've come to believe, as I know others have, that the agency wants the process to be long and difficult so that many claimants will get discouraged and give up. In fact, I believe that is the primary reason why the process is so long and difficult. If the agency wanted to speed up this process, we'd see some effort to do that. I don't think I've seen any effort. In fact, it seems like they are continuing to make the process more difficult and lengthy every chance they get.
No question there are some attorneys that engage in this practice regularly ( a firm in my local area delays for 60 days by default), but its ridiculous to claim this is primary cause for approval wait times.
Also, this is classic case study in failing to see the forest for the trees. How is .4 month increase in wait times even a worthy subject of investigation? Seriously, what is the concrete social harm of a .4 month delay in benefits, especially when the claimant still receives a retroactive benefits. There are probably 10 other more impactful obstacles to claimant's being awarded SSD benefits, namely lack of representation. I have encountered dozens of claimant's who have their awards delayed for this very reason! Seriously, many ALJ's will also postpone hearings to allow claimant's to find representation. Did the authors of this study account for whether this practice was just as prevalent in 2000 compared to 2020? Did this study control for the pilot state program that began in 1999? Did these authors speak to a single claimant attorney before publishing this "research" on attorney fee schedules.
The author's next proposed subject of study demonstrates how little they know about disability law and attorney work product:
"With data on representation and application and appeal details, we could explore how the likelihood of obtaining an earlier onset date changes when the wait time pushes representative fee payments over the maximum fee threshold."
Do the author's seriously not know it takes almost zero effort for a semi-competent attorney to establish an earlier onset date? Missing earlier medical records would be the primary barrier. If an attorney has all the records, requesting an amended onset requires maybe 2 minutes of additional file review/analysis. The author's hypothesis only makes sense in a world where disability attorneys are intentionally committing easily avoidable malpractice on a truly staggering scale--is this in our rational self-interest?
Why is SSA funding biased research that is clearly aimed at smearing attorney representatives? If SSA actually cared about program efficiency and claimant interests, attorney representatives should not be primary subject of investigation.
@6:03
Yeah your basic math makes the author's conclusions seem erroneous on their face. 4 months is the absolute cap for delays caused by the appeal timeline (operating under authors assumption that this is primary cuase for increase in approval wait times overall). Keeping in mind this 4 month cap, how can attorney representation increase AVERAGE wait times by 2-3.5 months. For this to be true, not only would the VAST MAJORITY of attorneys need to engage in this practice, but it would also mean most unrepresented claimant's appeal on their own much more quickly (within 1-3 weeks).
Another sham paper, based upon the authors' preconceived notions. Not science. Using pseudo science to make a political point. Kind of like the pain killers piece from a month ago. That one tried to portray claimants as druggies...not people in great psin trying to relieve the pain. The real issue here is that SSA controls the hearing schedules, the initial decision and reconsideration phases. How many claimants wait until then to even hire an attorney? The reason the backlogs increased is obvious to everyone but supposed "intellectuals"... The agency couldn't keep up with the increase in applications. That will probably happen again, soon after all the unemployment is turned off...
To answer Charles' last question, "no," I don't see any evidence that this has been peer reviewed, because it is not in a journal, but is a working paper on CRR's website. The authors are assistant professors, so I would think getting peer-reviewed publications is important to them. So maybe they tried to get it published in a peer-reviewed journal and failed, or maybe they have submitted it to a journal and are awaiting a decision. (In the sciences, quite a few people post their articles on one of the ArXiv websites after they submit it to a journal, and sometimes before. This would be better than that, because presumably someone at CRR thought it was worthwhile.)
It's always obvious to me that people who say attorneys do this have no concept of how to make it in this field of law. Firms need cash flow to operate. At the initial and recon cases, most of the work is handled by paralegals. For our firm, the hearing level is the most labor intensive and expensive area of work. 1) We dedicate a ton of staff time to preparing the case for hearing; 2) we have to assign an attorney to prepare the case for hearing and appear at the hearing; and 3) we have clients calling in for updates, etc. the entire time. All this work is to get paid in 40-60% of cases.
If anyone in this process drags things out, it is the agency, particularly at the AC level.
Legal aid here, not even getting a fee, addressing delays in processing times:
1. We can't access the ERE at lower level until the FO processes the rep forms. We can't send in rep forms with initial app because there is not a way to upload documents at the initial app level like there is with the appeals. FO does not match our rep forms from the faxes. We call the FO and now they have round robin answering the phone with people from different field offices taking calls who say they can't see the file and they can't give you any information, refax your forms, or transfer to extension of someone who never returns your call (as you are not the rep on the file so they can't talk to you) even as you refax your forms multiple times. We have sporadically been given an email for the office, but have also received phone calls from office managers telling us that is an internal email and we can't send documents on it unless specifically requested to do so on a particular case by a field office employee, or who gave us that and they are going to tell that employee not to give out that email address anymore. In the meantime, the FO closes out the SSI app because they couldn't contact the claimant directly for the SSI interview, when we could have helped connect the two parties for the conversation. We don't even know it was closed out as we don't get a notice. Suggestion: allow us to upload rep docs with the initial application online.
2. We can't talk to DDS because rep forms haven't been processed. We used to be able to fax the rep forms to DDS and work on the file with them and they updated the representation and sent the forms back to the FO to be processed. Now we see the whole file being sent back to the FO if there is a hint of representation to have the representation issue resolved before continuing.
3. Calling for status at FO: multiple calls over now several days for one live conversation, wait for 17 minutes, then system hangs up on you, now using my cell phone for this as it ties up our office lines and our other office staff that work in different areas complained - if you get a live person (8th or 9th call), they are from a different FO and can't see the file, or they don't answer anything and just transfer you to the same extension. You still don't get a call back even though you are the rep and request status in your phone message.
Suggestion: Is there a way the FO and reps can message each other on files? Maybe through the ERE system? Maybe include DDS in that process?
Suggestion: Allow reps to access the status of the case (but the real status, not a decision has been made) like the claimants get with mySSA account. Just accessing the medical records in ERE doesn't tell or what DDS or FO needs. And it would cut down on the number of phone calls to the overwhelmed system.
4. DDS has mailing problem with sending forms to claimants and reps. They were sending the 3369 and 3373, then a 10 day letter. We now get the 10 day letter with 3 days left and before we get the forms and have to call DDS to fax the forms and deal with claimant who also never got forms and is upset that someone (they think it is us) dropped the ball. Some of these have resulted in failure to cooperate closeouts and recon and hearing requests because some DDS examiners send file back to FO very quickly. We are told we have to fill out that set of forms because it has a unique barcode on it.
Suggestion: Why can't we fill out the 3369 and 3373 .pdf's and upload them into the ERE at the DDS level? Wouldn't that move the case along?
I am trying to be helpful - I know everyone is overwhelmed because of the pandemic and appreciate the hard work the SSA employees at all levels are doing. Please know that we are working hard too and maybe some of these things would help all of us.
Why didn't they just study the time elapsed between denial/appeal (i.e. how much time elapsed between initial denial/recon appeal and recon denial/hearing appeal)?
I'd wager they'd find unrepresented claimant took longer to file an appeal than represented claimants. We file the appeal the same day an initial or recon appeal is received.
Agree with 1:10. Our offices files as soon as we can. I get calls from unrepresented claimants on the 59th day wanting help with appeals.
And our office files claims as soon as we can and try to work them quickly, better for the client and better for us if the case is decided on the initial level then if it is decided at hearing when we have put in way more hours! I would much rather be paid $2000 for filing the app and recon then be paid 5902 2 years later after taking a case to trial.
I file my appeals as soon as I get the denial notice. Extending a case is the last thing in my mind and in nobody's best interest. If I can get an earlier approval, great.
I have a hearing this month On Oct 14th that we got the Sept 7th Notice of Reconsideration worked through scanning on Sept 20th. By that time we had it appealed based on client's phone call. The Request for Hearing was filed Sept 13th. Hearing is now set for October 14th as dire need. The 60 days didn't even run until Nov 6th. My hearing date is BEFORE the 60 days expired. And my law firm will be ready. I am past-chair of AAJ's SS section. Lawyers, true lawyers, not claims reps, view this as a profession with all that word entails. I agree with the last two comments, we act in our client's best interest. Period. SSA thinking we are dragging it out for nominal fee increase is fantasy and urban/agency myth not based in reality. It is also not economics. The law firms still in business know cash flow is essential to survival, so the myth doesn't even make mathematical sense.
I work in a payment center. Sometimes an ACR for a favorable ALJ decision gets accidentally sent to files and sits there until someone complains and a new ACR is created.
I have noticed that it is usually the claimant themselves who eventually complains that their award has not been processed, the representative rarely complains. I would think the representative would be right on top of that and call after the 60 day limit has expired, the time period that SSA has for processing an ALJ award.
Now I don't know that the reason the rep doesn't call is to get a couple of extra months of 25 percent past due benefit due to the delay. . But when there is a financial incentive, is it realistic to think that 100 percent of reps would not take it?
So you're saying SSA's screwups are reps' fault for not complain ing sooner? Seriously?
I understand that the authors of the study have also undertaken research that has shown conclusively that roosters crowing and the sun rising has a causal relationship in that the first invariably precedes the second. The statistical correlation is almost 100%.
To be published in Economics by Dummies
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