Social Security makes periodic general voluntary releases of materials for which Freedom Of Information Act requests have been made. They have recently released what they describe as "CY 2021 Non-Attys Eligible for Direct Fee Payment (Redacted under b6)."
I don't understand this list. It purports to show 44,134 non-attorney reps eligible for direct payment of fees. That can't possibly be right, can it? The list contains at least 40 times more names than what I would have expected.
We are adopting, with two revisions, our interim final rules that implemented amendments to the Social Security Act (Act) made by the Social Security Disability Applicants' Access to Professional Representation Act of 2010 (PRA). The interim final rules made permanent the direct fee payment rules for eligible non-attorney representatives under titles II and XVI of the Act and for attorney representatives under title XVI of the Act. They also revised some of our eligibility policies for non-attorney representatives under titles II and XVI of the Act. Based on public comment and subsequent inquiries, we are revising our rules to clarify that an eligible non- attorney representative's liability insurance policy must include malpractice coverage. We are also reaffirming that a business entity legally permitted to provide the required insurance in the States in which the non-attorney representative conducts business must underwrite the policies.
Nonattorney representatives who have met the eligibility requirements for fee withholding under the demonstration project have more experience representing disability claimants and are more likely to specialize in disability representation than attorneys or ineligible nonattorneys. According to our surveys, we estimate that nonattorneys eligible for fee withholding have represented on average over 240 disability claimants in a 2-year period, whereas other representatives have represented on average fewer than 90. Nearly all eligible nonattorneys specialize in disability representation, a fact that may explain why they have substantially more experience representing disability claimants. Although both eligible and ineligible nonattorneys lack advanced legal training, many had relevant work experience before becoming disability representatives, such as having worked at SSA. In terms of current employment, attorneys and eligible nonattorneys predominantly work in the private sector, but many ineligible nonattorneys work at nonprofit organizations and government agencies, which may not charge claimants fees. Results in Brief Judges rated attorneys and eligible nonattorneys about equally well overall, and more highly than ineligible nonattorneys, while claimants did not distinguish substantially among the three groups. In overall performance, judges at the 10 sites we surveyed during January and February 2007 viewed attorneys and eligible nonattorneys as comparable, although they rated attorneys more highly in a few specific areas of disability representation. Judges rated about 55 percent of overall performances by both attorneys and eligible nonattorneys as above average or among the best, and only about 6 percent as below average or poor. Many judges also told us they believe that experience in the field rather than legal training is the key to effective representation of disability claimants. However, judges did rate attorneys somewhat more highly than the eligible nonattorneys in certain facets of disability representation, such as in questioning of vocational and medical experts. By contrast, judges viewed nonattorneys who are ineligible for fee withholding as less capable than both attorneys and eligible nonattorneys, both in overall performance and in every facet of disability representation. Ratings by the limited number of claimants we interviewed, on the other hand, did not distinguish substantially among the various representatives in their overall performance. Judges and eligible nonattorneys were generally satisfied with the overall implementation of fee withholding for nonattorneys, but they expressed some concern about the experience standard for nonattorney eligibility. Almost all eligible nonattorney representatives were satisfied with SSA’s overall management of the program. Eligible nonattorneys also report that eligibility for fee withholding has benefited them by, for example, allowing them to take on more cases because they spend less time trying to collect fees from claimants. We found that judges and eligible nonattorneys considered most of the eligibility requirements for participation in the demonstration project to be reasonable. However, both groups, in addition to advocacy groups we spoke with, questioned the adequacy of the experience standard, which calls for nonattorneys to have represented at least five claimants before SSA over a 2-year period. Most of the judges we interviewed and more than half of the eligible nonattorneys considered this to be insufficient experience. Judges, and also advocacy groups we spoke with, said that the standard would not ensure that eligible nonattorneys are well qualified in disability representation. Fee withholding has succeeded in encouraging some attorneys to represent more SSI claimants, but it has also complicated payments to representatives and claimants in certain SSI cases. Attorneys reported that before fee withholding was extended to SSI, the possibility of not collecting their fees affected their decision to represent SSI claimants. Because of the availability of fee withholding, approximately one-third of attorneys with disability practices report that they are now representing more SSI claimants than in the past. Fee withholding, however, has also complicated payments to attorney and nonattorney representatives, as well as to claimants. In some cases, representatives may inappropriately receive both SSA and state payments that may total more than the SSA-authorized fee. Most states provide cash assistance to SSI claimants during the application process. At least 10 of these states pay fees to representatives of successful SSI claimants to encourage representatives to take SSI cases, and therefore increase the number of state residents receiving federal rather than state assistance benefits. Because SSA does not coordinate with these states to prevent overpayments, representatives can collect more than the authorized fee through payments from both SSA and the state—something that under the Social Security Act, representatives are not allowed to do. In addition, fee withholding in the SSI program has delayed benefit payments to claimants. In cases where claimants receive benefits from both the SSI and DI programs at the same time, SSA performs a calculation to determine the total benefits and the amount of the representative’s fee. With the extension of fee withholding to the SSI program, SSA cannot pay benefits until after it has performed this calculation. According to SSA and two disability representative associations, this change has led to delays in claimants receiving their payments, although SSA has not determined the extent of these delays. SSA is tentatively planning to make changes that would address this issue. We are recommending that the Commissioner of SSA monitor the nonattorney eligibility criteria to help ensure that only well-qualified representatives receive access to fee withholding, and if necessary adjust these criteria; assess the extent of overpayments to representatives in cases involving state fees, and if necessary take steps to prevent these overpayments; and continue to explore options to address benefit payment delays for recipients receiving both SSI and DI benefits. In its comments on a draft of this report, SSA agreed with our findings and recommendations, and noted actions it plans to take to address our recommendations.
In prior notices published in the Federal Register, we provided guidance on the requirements for participation in the Non- Attorney Direct Payment Demonstration Project mandated by Section 303 of the Social Security Protection Act of 2004 (SSPA). In this notice, we are announcing that we are revising our earlier guidance in two respects. First, we have decided to replace the requirement that insurance policies must be underwritten by a firm that is licensed to provide insurance in the State where the individual practices with a requirement that the underwriting firm be legally permitted to provide insurance in that State. This change will allow us to accept insurance policies offered by ``surplus lines carriers.'' pppIn our January 13, 2005 notice, we also announced that we would provide each applicant eligible to sit for the examination required by SSPA section 303(b)(4) a copy of the Compilation of Social Security Laws, Volume 1 (Compilation), to use as an open-book reference during the examination. Based on experience we have gained in the first four examinations, we have decided that providing a limited number of copies of the Compilation at each testing site for test-takers to consult during the examination is sufficient. Therefore, instead of giving each test-taker a copy of the Compilation, we will make available at each testing site sufficient copies of the Compilation for use by test-takers during the examination.
