On May 11, the Acting Commissioner of Social Security spoke to a Continuing Legal Education conference sponsored by the National Organization of Social Security Claimants Representatives (NOSSCR). She announced that the cap on the fees that attorneys and some others can charge for representing Social Security claimants under the fee agreement process would go up from $6,000 to $7,200 on November 30.
I have some questions. I imagine that some people reading this blog know the answers to most of these questions. I don't know whether they'll share anything with us but I'll ask the questions anyway.
- The increase in the fee cap isn't effective until November 30. Why such a long lead time? This length of time certainly isn't necessary in order to train staff. (I'll guess that there won't be any real training no matter how far in advance the agency announces this. There certainly wasn't in past years when the fee cap was raised.) When the fee cap was raised previously, the change wasn't announced this far in advance.
- There has been no notice in the Federal Register about the increase in the fee cap as there was in the past when the fee cap was hiked. Has the agency just not gotten around to the notice? Is this somehow still up in the air?
- Why $7,200? If adjusted for inflation, it should be more than a $1,000 higher. I can guess that there were proponents within the agency, and perhaps the Biden Administration, for a higher or lower increase. Who were the proponents on each side? What were their arguments? Did the Acting Commissioner make this call or was it the White House? (I don't know why the White House should have been involved but I also don't understand what took so long. I think it was last November when I first heard that an increase was coming.)
- Does the low increase reflect a desire on the part of some to change traditional representation patterns -- to force attorneys to be more amenable to a switch to all telephone/video hearings? A desire to generally reduce the effectiveness of representation? (I may be giving those involved too much credit. My impression has long been that, in general, government employees have little comprehension of the economics of Social Security law firms. It's a high overhead, low profit margin kind of business. Reduce gross fees even modestly and the profit margin is greatly diminished or eliminated. What I've just written is painfully obvious to people like me but must seem like Greek to many who receive a paycheck every two weeks regardless. Of course, I heard a rumor that the Chief Administrative Law Judge has talked about attorneys needing to "become more efficient." What did he have in mind? Whether or not there was a desire to manipulate attorneys to become less effective and to agree to dispense with in person hearings, I predict those will be the effects. Attorneys are struggling under the effects of incredibly poor performance across most parts of the Social Security Administration which delays adjudication and payment of benefits as well as payment of attorney fees at a time when attorney fees have been effectively cut in a dramatic way by inflation. There's nothing we can do to stay afloat but to cut service to our clients which may be "more efficient" in the eyes of some. Claimants don't get the service they're willing to pay for but the service that others who may not have their best interests at heart are willing for them to pay.)
34 comments:
"My impression has long been that, in general, government employees have
little comprehension of the economics of Social Security law firms."
Why should they have a knowledge of law firm economics? Like all people and all agencies, they are looking for the lowest payout. Even with costs, it must still be profitable or people would not be doing it, so the payout is enough.
I understand, everyone wants to make more money, but it isnt the job of the agency to ensure the viability of law firms.
Re: Fee Cap Increase
You are completely incorrect Charles. The Commissioner is limited to increasing the cap by the the COLAs given to primary insurance amounts, Section 206(a)(2)(A), not tied to inflation:
"The Commissioner of Social Security may from time to time increase the dollar amount under clause (ii)(II) to the extent that the rate of increase in such amount, as determined over the period since January 1, 1991, does not at any time exceed the rate of increase in primary insurance amounts under section 215(i) since such date."
Applying this, the highest amount possible since 2009 was just over $7,275. For simplicity of application, $7,200 was the best possible number to use. This also explains why they chose November 30th instead of December 1st -the date the usual assessment increases occur, since then a newer COLA would have probably allowed for the $7,300 cap.
I believe (but I cannot prove any longer) that OGC opined that once the prior cap of $6,000 was set, only COLAs since that date would be considered. They would not go back and retally all COLAs since 1991.
In sum, the cap exceeding $8,000 is not legally possible under the Act.
@ 9:55am - why does (or should) SSA care about "payout" in this situation? It's the claimant's money, and SSA is paying out the lump sum no matter what - the percentage of the attorney's fee is of no practical concern to SSA. Whether the attorney gets 10%, 25%, or 50%, capped at $6,000, $7,200, or $15,000, it's all the same money, just a different split. Increasing the fee cap to $10,000 or $15,000 (or, really, any other amount) wouldn't change the total amount that SSA is paying out. There are no savings to the gov't fisc one way or the other. Your comment simply makes no sense.
SSA should have at least some concern for the viability of law practices in this area of the law. Without representatives to assist in developing files at the hearing level, SSA would likely need to hire additional staff to do it. An ALJ has a duty to ensure that the administrative record is fully and fairly developed.
In the cases of unrepresented individuals that I review for AC or USDC appeal, the level of development that is done by OHO staff is very subpar if nonexistent. This varies by OHO.
@10:42
I am not sure I understand the distinction between tying attorney fees to COLAs vs. inflation. Aren't COLAs tied to inflation? How did you come with $7,275?
And if your second point about the timing is correct, SSA intentionally screwed attorneys by not accounting for the record COLA that will likely occur in December. Because if they had delayed the increase a month later, they would need to account for the 2023 COLA.
Yeah, I am sure all the law firms are paying 8% COLAs to the staff they have.
The last fee cap increase to $6,000 was announced 2/4/09 and effective 6/22/09 (74 FR 6080). Call that 4.5 months compared to the current 6.5 months, give or take, if the FR notice issued right now. I see no way of tracking down whether Astrue made similar announcements to interest groups prior to the FR notice or how far in advance. I would say it is safe to say FR notice is forthcoming and not quite ready for publication. I hardly see that as constituting a problem.
Attorneys act like they are some kind of gift to SSA. From an FO perspective, they are not. Most claims from attorneys offices come in the form of a small stack of paper, which has to be wholly keyed into all the different systems. Not to mention the quality of the information especially for SSI claims, is half assed at best. These have to be redeveloped to prevent unnecessary claims.
Couple this with the constant flow of refaxed documents and phone followups, it is a net negative for FOs to get attorney claims. The agency invests additional programming resources, staff time and processing steps to process fee cases. I seriously doubt the user fee covers those costs.
In my experience, the best quality third party claims are from non-attorney advocates, who don't get paid a fee. They give good quality information and save time for the claimant and the agency. Notsomuch from attorneys.
The net effect for me will be that I will only take cases where approvals are highly likely (i.e., claimants over age 55 with positive MRIs or other objective tests). Claimants in their 30's and 40's will find it almost impossible to obtain representation. I hope that ALJs enjoy seeing pro se claimants because there will be a lot more. This fee increase is an slap in the face and insulting. I am just a few years away from being done with all of this and while I will miss working with my clients and colleagues, SSA as an agency can go to hell.
@11:39 - Take the $6,000 in 2009, start with the next COLA for 2012 (12/2011) and continue adding to the present. COLAs can be found in POMS RS 00601.120 C.
And yes, it seems November 30th was specifically selected to avoid the issue of the next COLA possibly being large enough to further raise the fee cap. Of course, since they have to publish this in the Federal Register, who knows if they will make it in time.
I also need to note that tying the fee agreement cap to COLAs applied to the primary insurance amount overlooks the fact that the average national wages has increased by more than the sum of COLAs since 2009. However, NOSSCR or other lobbying groups will need to convince Congress to change the law, not belittle Social Security.
@ 1:11 Thanks for the explanation. Similar to how EAJA fee hourly rate is adjusted in federal court cases. I would have preferred if they took into account the historically abnormal inflation we are experiencing this year, especially if it will take another 13 years before we see another increase.
@12:45 While I will not dispute there is significant variation in skill/competency of SSD attorneys, SSA's own data on approval rates proves you wrong--especially at the hearing level. And the primary field office our firm deals with has been an absolute mess during the pandemic (way worse than FOs further upstate). Apart from not being able to properly process attorney forms, they simply stopped mailing out denial notices to attorneys and claimants last year. The legal aide office handles many SSI claims through that same FO reported an even worse experience. They had to put a spreadsheet together of 40+ claims months ago, and they are still working through the list.
Also what firms are still routinely mailing in paper applications? Anytime we are forced to do this (usually due to errors from the FO) they almost always "misplace" the paper forms.
I think this gets to another problem--not only does attorney representation vary widely by region/firm, FO quality is also highly variable. The degree of variation at the FO level is much more fixable issue.
Who working now got an 8% COLA last year? Anyone?
Bueller? Bueller? Bueller?
@3:00 PM - what sort of denial notice? Initial and recon medical denials come from DDS, not the FO. Can you share the FO code? Interested if they are one of my offices.
@12:45 incredible guts to say anything negative about attorneys given the relentless errors being made by field offices. The level of service at the FO’s can basically be described as barely conscious. Perhaps you should get off this blog and back to work; you have plenty of it.
@ 5:13 Initial and Recon. My understanding is the FOs are still responsible for mailing the denials, and they are postmarked from the local FOs--not DDS. Maybe this differs state to state, but I am in upstate New York. I believe it is partly connected to work from home and difficulties with printing remotely. What is really bizarre, is it happens more commonly with Recon denials even where our office was copied on the initial denial.
Lately they have also been screwing up with attorney assignment and fee witholding (i.e. putting the wrong atty office on record.) I called this FO last week on a claim where we received the attorney acknolwedgment letter, and the FO staffer told me that the attorney from 2 claims prior was the attorney on record. On another case we spoke to 2 different FO staffers on the same day, one being a manager. They gave us totally different answers about our attorney status, which was different from what we were told a month earlier from a 3rd staffer. I called back again this week with relevant POMS to explain the error--the FO staffer I spoke to seemed to agree but then told me she was putting me on hold, and instead disconnected (likely accidental but very frustrating).
And this FO could not care less about attorney fee witholding. I do not know how they are managing this, but there have been 4-5 cases the last 6 months where we receive the attorney acknowledgment letter well before the approval, and not only are we not copied on the Award Notice, but no attorney fee is withheld. In two of these claims the clients didn't tell us thee were paid.
The attorney assignment process needs to be dramatically simplified. It creates more work for all involved--and to what end? If it is about claimant protection, why not implement heavy sanctions against attorneys that send in fraudulent attorney documents? The amount of time wasted by attorneys and FO staff on this issue is astounding. Endless faxes, phone calls and time spent fixing screwups caused by antiquated computer systems that require manual entry of atty information in multiple programs.
DDS normally mails denial notices and has for decades. In the days of paper folders, they'd mail one and put a copy in the folder.
Not insured T2 disability claim denials are not mailed by local FO. SGA denials and denials for failure to submit 3368 and or 827 are also FO produced and sent.
637 - Yep, I will be first to admit that SSA does crap work. Lots of crap work. I have spent lots of time on the phone fixing lousy CR work for attorneys.
My point is that attorneys make it worse, not better. On a sinking ship, attorneys sit on the gunwales and bitch about how badly the ship is taking on water.
You want me to get back to work? Sorry, that ship sailed. I had my fill of furious bailing on the listing frigate and swam for shore.
No offense to the many great attorneys that take cases seriously and that represent clients well. My observation is that over the past several years is that many of the large firms just play numbers game. The product that is submitted by these folks is horrible. Often leading to further recontacts at a time when the water is well above our heads. We simply cannot keep up with repetitive paper work and sub par products. Representative paperwork easily used 2-3 full time employees in my office per day. Of course we are to blame for our own sub par work and inability to keep up forcing reps to become increasingly frustrated. From a field office perspective we think raising the amount is criminal. My honest assessment is this will continue to degrade and we get out of the representative business. We can’t keep up and reps can’t survive on the lackluster product we can produce with the limited resources. Something has to give …
@11:48
There is fairly simple solution to this problem that plagues both FO staff and attorneys alike--SSA needs to revise their attorney assignment process. It is far too complicated and requires manual entry of attorney info into bifurcated systems. The FO staff do not even seem know whether our attorney forms are properly processed, because we are often given misinformation--they just look to see if atty forms are received, not whether the info on those forms were inputted in the right places.
There could be an elegant IT solution that automates this process. Both Attorneys and FO staff need to communicate this to SSA management. The current system creates way too much medial work for all involved. Law offices repeatedly fax in representative paperwork because they get screwed out of fees if they win and are not on record--and then spend months trying to claw back the fee. Meanwhile FO staff are inundated by repeat forms, or when they are called by attorney offices about rep status, they have to dig into the claim file to confirm (correct me if I am wrong on this point, but this is my impression)
And the electronic 1696 system is a total joke. This could be converted into an actual automated process, but my understanding is these e1696 still require the same manual inputs by FO staff. What is the point of this? Also when we called our local FO to ask about it months after it was released, they claimed to have never heard of it.
@11:48
You’re dreaming way too big. Trust me, we in the FO continue to voice our concerns with how processes in the field work. But news flash…no one cares. If and when they do develop new processes or adopt new software to do a specific task, it normally just adds to the already cumbersome workflow.
Specifically, the new attorney system. A couple of years ago they updated it to a web based process that automated the mailing of the notice of appointment letter since that was an issue. So now we have that…in addition to having to manually still go into both the T2 and T16 systems (separately of course) and bring that into the record.
I like the new web based system but it still requires someone to actually go through all the steps. Something that doesn’t happen regularly in our FO unfortunately.
11:24, glad you're gone. You were clearly part of the problem and not part of the solution. We hear you..."If only all these customers will go away, I can get my work done..."
You get too many calls? How many would you get if attorneys did not intercept thousands of them? You complain about attorneys sending duplicates of following up repeatedly? How are we to know you actually have the first request? EVERYDAY we finally get a response to a third or fourth request where the SSA rep says, "we do not have any of that paperwork, please fax.." How do we know what you have in queue waiting its turn? You do not answer.
We are CUSTOMERS TOO. We are entitled to and should expect prompt, courteous and respectful treatment. Instead we are treated like the enemy. We follow-up with you because we have clients who expect us to, and rightly so. They do not understand why SSA takes so long and then does things that defy explanation. How do we explain that to them? We blame Congress, of course because the agency is underfunded and understaffed. But then I read in here, comments like yours blaming the attorneys. Good riddance.
The atty forms have to be scanned into the electronic file that FO and DDS can see.
An input has to be done to add the attorney to the non-medical part of the claim. This has to be done in order for attorney to be paid.
Claims specialist has to update the EDCS/3368 online, just page through it and okay updated info, for DDS or OHO to know there is an attorney. If this isn't done, the attorney forms are still in file but DDS won't know they are there unless they go looking for them.
So if an attorney office calls to ask about representation, someone could look in the electronic file and see the forms and say yes but they may not be anywhere else in system. Or they could say no because the forms are faxed in but no input done. Even if both of those are done, DDS may not know if they weren't alerted via EDCS/3368.
Not to excuse the offices for poor work but it's easy to see how different answers are given.
Not 11:24 but the comments on this blog generally disparage the employees at SSA trying to do the best they can given the circumstances.
It seems like the disdain is equal from both sides. Very unfortunate and all too indicative of our society today.
Hope it gets better for everyone at some point. Until then, we can only do what we can when we have time. No matter how much work I do in a day at the FO, someone is always getting shortchanged. It’s the reality of the situation.
I’ll continue to do the best I can but it’s hard when all you want to do is give up. Each new day is opportunity to do better.
Well sounds like at a certain point higher ups at SSA will be forced to pay attention. The service declines since 2018 are apparent to anyone interacting with SSA on regular basis, and this will further bleed over to the public perception of the agency. These are not impossible problems to solve. FO staff should be spending the vast majority of their time helping the public, not processing attorney forms.
SSA needs to integrate more systems. Privacy and security can still be maintained--but the current system heavily prioritizes these concerns over providing acceptable service and simplified work processes that are easier to train for and less tedious to complete.
12:36
"We are CUSTOMERS TOO. We are entitled to and should expect prompt"
And there it is right there, we are entitled, boy, couldnt have said that any better, insert the single largest audible eyeroll in the history of primates.
@2:39 pm
The higher ups at SSA could care less
3:57 PM
Thanks for proving my point. Audible eyerolls instead of service. BS instead of answers. Even when you do send notices in response they do not answer the question asked and are usually self contradictory and incomprehensible.
If you received the quality of service you give at a store or restaurant, you'd never go back. It's not like we can go to the Social Security Store across the street. It folks like you that make me embarrassed to say I once worked at that once great agency. Put some soy sauce on that eyeroll, friend.
You do realize the notices we send out are pre-written by the agency and it’s legal team right?
We can fill in some pieces of information, but 95% of every notice issued is not controlled by the person sending it.
6:27 they are written at a 6th grade level, perhaps the notice isnt the problem but the reader is.
Maybe SSA can learn something from the federal court systems. I never have a problem with the court failing to recognize me as my client's attorney or failing to send me proper notice in a case. I realize its a different scale.
@11:03
A more comparable system would be State Workers Compensation, where attorney fees are witheld and paid directly in a similar manner to SSA. This is how it works for NY Workers Compensation--though a most of the larger attorney fees require a fee petition (which are processed much quicker). I know less about VA Disability representation, but believe their attorney assignment process works better than SSA.
Bruh, Aint no SS attorney dishing out raises for COLA. Win rates, pandemic etc have punished this field of law for 10 years straight.
Major agreeage on that response. That post was offensive. In the game over 20 years. Used to make decent $, but stay in the game because I know these people need the help. Don’t get me started on out of the blue 5+ year cessation notices with $70k overpayment charges.
Post a Comment