Online Representative Availability Portal Coming

    An e-mail I received from Social Security:

The Office of Hearings Operations (OHO) is pleased to announce the release of the Representative Availability Portal (Portal) as part of the Enhanced Representative Availability Process (ERAP). The Portal is a dynamic, modern, and user-friendly website that allows representatives, through their Designated Scheduling Groups (DSGs), to provide us their availability for hearings. While you can still email your monthly availability to us if you choose, the Portal is a simpler and more convenient way to provide us your availability.   

We plan to register Portal users over the next several months as part of a phased national rollout, ultimately offering the Portal as an option for all representatives in 2025. If you are interested in registering individuals to submit availability through the Portal on behalf of your DSG, please send an email ... to ...

    Anything would be an improvement over the mess we've got now, both for attorneys and Social Security.

List Of Non-Attorney Reps

     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.

New Requirement For Those Representing Claimants

     Social Security has issued a newly amended section of its HALLEX Manual on Rules and Standards Governing The Conduct Of Representatives. By the way, HALLEX doesn't stand for anything. It's just the name of the agency's Hearings and Appeals Manual. This part of the section appears to be new:

 [A] representative must: ...

Disclose in writing, at the time a medical or vocational opinion is submitted to SSA or as soon as the representative is aware of the submission, if:

1. The representative's employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or

2. The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence.

NOTE 1:

The agency must report to the Office of Management and Budget (OMB) the number of disclosures received pursuant to 20 CFR 404.1740(b)(5)-(9) and 416.1540(b)(5)-(9). To assist with disclosure reporting requirements, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff will ensure that any disclosures described in this subsection (Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-1-40 A.5.) are filed into the electronic claim(s) file (eView) using the document type “Required Disclosure – Medical (3076)” or “Required Disclosure – Vocational (1088),” depending on the type of evidence submitted with the disclosure.

NOTE 2:

A representative must submit a separate disclosure each time they submit opinion evidence that meets the requirements in 20 CFR 404.1740(b)(5) and 416.1540(b)(5) and described in this subsection. A single disclosure for multiple opinions that meet those requirements is not sufficient. ...

    I question whether the agency can impose an affirmative duty such as this "Required Disclosure" in a footnote to a staff manual. How does a mere staff manual bind members of the public? Doesn't this require notice and comment under the Administrative Procedure Act? If nothing else, this appears to violate the Paperwork Reduction Act.

    It's unclear whether this provision applies to forms provided by attorneys to doctors to complete. Generally, attorneys place a legend on these forms saying where the form came from in order to satisfy the agency. Does this special reporting requirement apply to situations where the attorney merely provides a form but does not help with completing the form?

This Is Going To Be A Trip For Those Of You Who Have Never Watched John Oliver Before

I Don't Understand

     I recently received the message reproduced below. I'm sure that other attorneys who represent claimants have received the same message.

    It sounds as if I and my firm need to file new forms SSA-1694 (registration of law firm or other entity) and SSA-1699 (registration of individual attorney or representative) and need to start using a new form SSA-1696 (appointment of representative). The thing is that when I look online for these new forms, all I find are old versions of the forms. Does Social Security intend to issue new versions of these forms? Why would they send out a mass e-mail like this when they haven't completed the new forms yet?

    When I think about the "changes" that have been announced, I can't figure out why new forms would be required anyway since the "changes" seems to amount to little more than lip service to a federal court decision.

Changes to Rules for Claimant Representation and Provisions for Direct Payment to Entities On August 21, 2024, we published a final rule, Changes to the Administrative Rules for Claimant Representation and Provisions for Direct Payment to Entities, in the Federal Register. We’ve made changes to our regulations to allow representatives of Social Security claimants to assign direct payment of their authorized fees to an entity with which they are affiliated. We will implement this final rule in two phases. To learn more about both phases, including requirements for representatives and entities, please visit our webpage: https://www.ssa.gov/representation/2024NewRule.htm. Here are some key changes:   Starting September 30, 2024, anyone who has not previously registered with us and who wants to be appointed as a representative must register with us using Form SSA-1699 (Representative Registration) before we will recognize a new appointment request.    Starting December 9, 2024, representatives must use Form SSA-1696 (Claimant’s Appointment of a Representative) for new or updated appointments.    Starting December 9, 2024, consistent with Marasco & Nesselbush, LLP v. Collins, 6 F.4th 150 (1st Cir. 2021), we will directly pay authorized fees to a registered entity when a representative assigns direct payment of their fee to that entity.       Generally, for direct payment to an entity:    The entity must register with us using our revised Form SSA-1694 (Entity Registration and Taxpayer Information).     The representative must register with us and affiliate with the entity using Form SSA-1699 (Representative Registration).    The representative must assign direct payment of the fee to the entity using the revised Form SSA-1696 (Claimant’s Appointment of a Representative).     The representative and the entity must both be eligible for direct payment.    Please share this information with other interested parties. We appreciate your support.    Learn More

New Regs On Representation Of Claimants

     The new regulations on representation of claimants and payments to the entities that represent claimants will appear in the Federal Register tomorrow. They will be effective in 30 days. You can read them today. 

    Here's a key comment and response from the explanation of the new regulations:

Comment: Commenters asked how we will ensure that entities are paid for work performed by their salaried employees when that work was performed as a part of the representative’s employment. Commenters had concerns that the proposed rule allows a representative to rescind an assignment prior to the award of a claim, thus creating the possibility that the representative could “take with them the fees to which the firm was clearly entitled.”

Response: While we recognize entities’ concerns about receiving compensation for work done by their employees, representative and entity relationships can take many forms, and we are not in a position to know how those relationships are arranged. We respect the choices entities and representatives make with regard to their employment agreements and contractual terms, and we established a process that is flexible enough to accommodate a variety of relationships. Permitting an individual representative to rescind an assignment is important to that flexibility, as rescission might be appropriate in certain relationships. For example, an employment contract might permit a representative to leave a firm’s employ but continue their representation and collect associated fees. ...

Final Regs On Law Firms Representing Claimants Cleared For Publication

     The Office of Management and Budget (OMB) has cleared Social Security's proposed final rules on the recognition of law firms representing claimants. To this point, the agency has insisted that only individuals can represent claimants. In the real world, however, there are these things called law firms and they like to do things like shift responsibility for a case from one of the firm's attorneys to another, something that is now difficult both for the law firm and Social Security. There's also the problems that ensue when an attorney leaves a law firm. Who gets the fee? This is a nice step forward for everyone, including Social Security. Expect these final regulations to be published in the Federal Register before long.

Jingle Bells, Jingle Bells

     It's June 21. Social Security is today demanding that I tell them which days I'm available for hearings in December. That's more than six months off. They haven't started scheduling for October but if I delay giving them an answer, they'll just assume I've available the whole month and won't let me update it later. 

    Have you decided what days you're going to take off around Christmas? 

     Is it just me or does this seem bizarre, almost abusive? It's certainly unnecessary.

A Modest Idea On Getting Help To Claimants

     I wrote about the reach, and perhaps overreach, of Social Security's controls on fees for representation  before the agency in 2021. I still think what I suggested at that time would be a good idea:

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 offering contingent fee contracts 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 whomever 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?

It's Official

     It's official. The fee cap on the amount that attorneys can charge Social Security claimants is going up to $9,200 on November 30.

Two Important Sets Of Final Regs

     The Social Security Administration has asked the Office of Management and Budget (OMB) to approve two sets of proposed regulations.

     Here's a description of the first for which approval has been requested:

We propose to update our regulations to reflect that we may authorize direct payment of representative fees to an entity itself, not only to representatives working for an entity, as required by the decision of the Court of Appeals for the First Circuit in Marasco & Nesselbush v. SSA. In accordance with the Marasco ruling, we propose a process for paying an entity directly, which involves requiring registration for all entities who wish to receive direct payment of assigned fees. We also propose several measures to standardize registration, appointment, and payment processes for all representatives who wish to be appointed on a claim, matter, or issue with us. These proposed changes will enable us to pay fees directly to entities in a timely and efficient manner. In addition to helping us implement the Marasco decision, these provisions will increase appointed representatives’ access to our electronic services, reduce delays, and thus improve program efficiencies for all representatives.

    Here's a description of the second set of proposed regulations for which approval has been requested:

We propose to develop intermediate improvements to reduce the burden in our current disability adjudication process as a step towards longer-term reforms to ensure our disability program remains current and supports equitable outcomes. Actions could include decreasing the years of past work we consider when making a disability determination, as well as other potential regulatory changes.

The development of this regulation was informed by a listening session conducted by our Office of Communications with advocacy groups representing claimants and beneficiaries.

No Attorney Fee Numbers Released In A Year

     I used to post newly released numbers on payments of fees to attorneys and others for representing Social Security claimants. Something like a year ago I posted that the agency hadn't released any new numbers in months. In an apparent response, Social Security finally updated the numbers on their website. However, Social Security hasn't updated its numbers since then. No new numbers on fee payments have been posted since February 2023.

    There really is interest in these numbers. I'm sure the agency hasn't stopped collecting the data. It may well be posted on Social Security's intranet. Please release the data to the public.

Representation Of Claimants Way Down In 2023

     From Social Security's FOIA Reading Room:

Click on image to view full size

Sanctioned Representatives

     The Social Security Administration has posted an updated list of "Registered and Unregistered Sanctioned Representatives."

    The list has never seemed that interesting to me but it always draws a good deal of attention whenever I post about an update which isn't often, even though they release an update almost every month.

A Golden Oldie

      It’s a slow time in Social Security world so let me reprise a post from almost ten years ago. The themes coming from shills have changed but the problem hasn’t gone away. I’ve become quicker to delete comments that look phony to me. I do note comments now that appear to me to come from employee unions but it’s hard to tell since there are obvious reasons why many Social Security employees agree with union talking points.

Bombarding This Blog — From November 8, 2013

If you read the comments posted on this blog you might come to the impression that everyone knows that:

• Social Security employees do most of their "work" from at home but they don't really work because they're all lazy. The agency has way too many employees.
• Social Security's Administrative Law Judges are particularly lazy. They approve Social Security disability claims because they're lazy. A lot of the judges are crooks in cahoots with crooked disability claimants and their crooked attorneys.
• Most Social Security disability claimants are just crooks trying to scam the program.
• It's way too easy to get on Social Security disability benefits, especially for "mental illness." Anyone can get on Social Security disability benefits for "mental illness" just by pretending to be crazy.
• SSI child's benefits are the biggest scam. It's nothing but lazy, drug addicted mothers coaching their kids to act crazy. They get child after child on SSI child's benefits and then steal the money to support their drug habits.
• Attorneys who represent Social Security claimants are lazy. They're paid huge sums of money by Social Security but they do nothing for their clients. If anything, they're just crooks who assist their crooked clients in perpetrating fraud.
• There is no money in the Social Security trust funds. The money was all stolen by Democrats. The U.S. government bonds that are supposed to be in the trust funds are meaningless pieces of paper.
• Social Security is going bankrupt.You'll never get back the money you paid in. It's all a scam.

     Some of this comes from individuals legitimately expressing their opinions. However, it's long been apparent to me that most of this is coming from people who have been paid to post online comments about Social Security. Often, these people pretend to be Social Security employees, Social Security claimants or Social Security attorneys. Often, their comments just don't ring true because they're pretending to be someone they're not.

     Does it seem outlandish, even paranoid to think that someone would be paid to post slanted comments online? Take a look at this article from the Baltimore Sun. Officials at the University of Maryland had a problem. They wanted to shift the University's athletic programs from the Atlantic Coast Conference to the Big Ten. They knew that many of the University's alumni would be furious with this move. Here's what they did:

Brian Ullmann, the university's assistant vice president for marketing and communications ... wrote that the school planned to "engage professional assistance in helping to drop positive messages into the blogs, comments and message board sites. I will arrange for this service today." ...

Lee Zeidman, the corporate communications consultant who helped Maryland draft letters and talking points, said Wednesday that it is "standard operating procedure" in the business world to weigh in directly on message boards. "There are special PR agencies who work in the digital space who bombard blogs and newspaper sites where no one puts their name," Zeidman said.

     Who would pay online shills to post on Social Security issues? Pete Peterson and the Koch brothers are the prime candidates. They're tossing around tens of millions of dollars in their fight against Social Security. They certainly wouldn't be going after just this blog. It's quite unlikely they know anything about it. They would mostly be going after message boards at news media sites. However, I don't know that there's any other web site quite like this one where there's an ongoing discussion on Social Security issues. If you're doing an online campaign to malign Social Security both as a social program and as an agency, you're going to come here.
    I wonder how someone who works as an online shill would feel about their job. Would it make them proud? Would they tell their children about what they do for a living?

Why Do Attorneys Keep Submitting Appointment Paperwork Over And Over?

     For some time now attorneys like me who represent Social Security claimants have had a problem with field offices delaying processing paperwork we submit appointing us to represent claimants. At least where I am this has gradually gone from an occasional problem to a common problem. We may be on the way to this becoming a problem in every case.

    Until the field office processes the appointment paperwork we can't really represent the claimant. No one at Social Security will talk with us. We can't access the claimant's file online. We don't receive notification about actions the agency takes.

    Taken to an extreme, and I fear that's where we're headed, representation of claimants becomes an impossibility. 

    This isn't happening because anyone at Social Security decided that it should happen. It's local field offices overwhelmed with work putting off tasks they regard as of secondary importance. The problem is that the workloads aren't going to decrease. There's always going to be work you can't get to. I fear that we're approaching a "Not now. Not later. Not ever" situation.

    You frequently see comments on this board from agency employees bemoaning the fact that attorneys keep submitting their appointment paperwork over and over and keep calling to ask about unprocessed appointment paperwork. What the hell do you expect to happen if you don't process the paperwork? The attorney has no idea whether the problem is that the agency never received the paperwork. They're anxious to begin representing their clients. Of course, they're going to resubmit the paperwork. Of course, they're going to call. Quit blaming the victim of your inability to process all the work you've been given to do. If you want to stop the re-submission of appointment paperwork and pestering calls about it, assign processing appointment paperwork a higher priority. Get it done in a reasonable time and we'll stop pestering you. 

A Sad But Familiar Story

    A television station in Denver presents the now all too familiar story of a disabled person becoming homeless because of delays in processing their Social Security disability claim. Here's a quote from the claimant's attorney:

"We had to re-fax the same paperwork six times over a period of about six months," the attorney explained. "But it's not just the faxing. It's calling, 'Did you receive the fax? No, we haven't received the fax,' Even my staff, when they call into the field office, they will wait on hold for sometimes an hour — if the call is even answered at all."

    This isn't just happening in isolated cases. It happens all the time. How is this acceptable?