NPRM On Representation -- Part I

I keep trying to wade through Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. The proposal seem problematic in many respects. I will lay out the problems I see in several posts.

The most serious concerns I have relate to the following language in the proposed regulations (emphasis added):

Direct payment to entities. We will only make direct payment to an entity that provides the following attestations in its request for direct payment of fees:

(1) The entity must attest that it is in possession of a signed statement from each attorney or non-attorney who has performed any representational services for the claim in question that includes the following:

(i) The attorney or non-attorney has performed all representational services on behalf of the entity,

(ii) Any fees paid pursuant to the services the attorney or non-attorney have provided should be paid directly to the entity, and

(iii) The attorney or non-attorney representative receives compensation for the services provided directly from the entity.

(2) The entity must attest that all individuals who have provided representational services on the claim in question are individuals who qualify for direct payment under the Act or the direct payment demonstration project, as defined in § 404.1717.

First, this talks about a signed statement from "each attorney or non-attorney representative" and about "all individuals who have provided representational services" which I would take to mean that Social Security recognizes that at a law firm or other entity representing Social Security claimants more than one person may be working on a client's case. So how does one explain the part that says that there must be an attestation that "The attorney or non-attorney has performed all representational services on behalf of the entity"? This would mean that only one person at a firm must do all the "representational services" on the case or the firm would be ineligible for fee withholding. This is contradictory. I cannot figure out what Social Security means.

Second, what does this "representational services" language mean? The proposed regulations include a list of definitions of terms used. I will talk about those confusing definitions later but "representational services" was not given any kind of definition, even a confusing one. This is a key term. Without knowing what Social Security means by "representational services", I do not know what they mean by this proposal. If a legal assistant who works for me calls Social Security about a payment issue, is that a "representational service"? If so, my firm is not eligible for direct payment of a fee unless that legal assistant qualifies under the ongoing experiment in non-attorney withholding. What if I were to send that legal assistant to the hearing? (I would not do this, but others have.) Would that be a "representational service"? Where exactly is the dividing line here? I wonder if Social Security failed to define "representational service" because they did not know how.

Third, what does the "in possession of a signed statement" language mean if one of my firm's employees leaves to take a job with another firm and gives that firm a "signed statement"? Does the departure of an employee who has worked on a case automatically mean that my firm no longer has that person's signed statement. Can an employee withdraw his or her signed statement? Does each employee who has worked on a case have the ability to prevent my firm from receiving a fee after he or she leaves? Employees who quit or get fired can sometimes be spiteful. That sounds scary to me.

You may comment on this proposal online.

Last Week's Hearing -- E-Pulling Worries And Schieber Gets Religion

The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security management personnel has posted a summary of what transpired at last week's hearing before the House Social Security Subcommittee. Here are a couple of excerpts, with my comment in brackets and bolded:

Across the board, in response to this question, there seemed to be a real concern with ePulling, in that as of right now, it is adding work that is not allowing SSA to make any headway. ...

Mr. Schieber [Chairman of the Social Security Advisory Board (SSAB)] also added that the current outcome is a result of a cut in resources, and an increase in claims. He hinted that if some of the money that was put into special initiatives would have been funneled into budget resources, for possible hiring, we may have had a slightly different outcome when it comes to decreasing the disability hearings backlog. [But the SSAB was a big backer of the "special initiatives", such as former Commissioner Barnhart's Disability Service Improvement plan! It is good to see Schieber finally seeing the light. The current leading example of a "special initiative" is E-pulling.]

Regs Sent To OMB

All agencies must submit proposed new regulations to the Office of Management and Budget (OMB) for approval before publishing them in the Federal Register. Social Security has recently submitted the following proposal to OMB:

SSA proposes to amend our Supplemental Security Income (SSI) regulations by making technical revisions to our rules on income and resources. These revisions are based on the Consolidated Appropriations Act of 2001, Section 519, (Pub. L. 106-554), the Economic Growth and Tax Relief Reconciliation Act of 2001, section 203 (Pub. L. 107-16), the National Flood Insurance Act of 1968, section 1324 (Pub. L. 109-64), and the Energy Employees Occupational Illness Compensation Program Act of 2000, section 3646 (Pub.L. 106-398). We also plan to amend the SSI home exclusion rules to extend the home exclusion to individuals who leave a previously excluded home based on evidence of domestic abuse.

McCain On Social Security

I recently posted an Obama ad criticizing John McCain on Social Security. I have not seen any corresponding McCain ad. Here are some McCain's statements on Social Security from On The Issues:

• John McCain supports supplementing the current Social Security system with personal accounts--but not as a substitute for addressing benefit promises that cannot be kept. John McCain will reach across the aisle, but if the Democrats do not act, he will. No problem is in more need of honesty than the looming financial challenges of entitlement programs. Americans have the right to know the truth and John McCain will not leave office without fixing the problems that threatens our future prosperity and power.
• Q: What about Social Security?

  A: Look, what Americans need is some straight talk. Every man, woman and child in America needs to know it's going broke, and we've got to do the hard things. We've got to fix it for the future generations of Americans. Don't we owe that to young Americans today? I say we do. It's got to be bipartisan. And you have to go to the American people and say we won't raise your taxes. We need personal savings accounts, but we got to fix this system.

• Q: Back in 2005, you said you could support an increase in Social Security taxes as part of a compromise. Do you stand by that?

  A: As part of a compromise, if you come up with a benefit, I can accept almost anything, but it's got to be part of a compromise. Am I for raising anybody's taxes? No, I am not. I am unalterably opposed to doing so. I will not support a tax increase; it's off the table, certainly, now.

I was unable to find anything about Social Security on the offical McCain website. It appears that Social Security is a subject that John McCain would rather not talk about.

Big COLA Coming

From SeniorJournal.com:

The consumer price index that is used to determine the cost-of-living adjustment senior citizens will receive from Social Security in 2009 was released today and the change for August 2008 over August 2009 is still looking like the COLA will be an increase in the range of 6 percent, the largest since 1982. The change for August is 5.9 percent.

Social Security Alumnus Involved In Bailouts

James Lockhart was Deputy Commissioner of Social Security earlier in the Bush Administration. Lockhart left Social Security to become head of OFHEO. Never heard of OFHEO? It regulated Fannie Mae and Freddie Mac. I think you have heard of them lately. Apparently, Lockhart is getting little blame in the recent debacle with those institutions. He is one of the people testifying before the Senate Banking Committee today on the President's proposed $700 bailout of Wall Street.

Congress Passes SSI Extension For Elderly And Disabled Refugees

From the Capitol Insider, put out by the Disability Policy Collaboration:

The SSI Extension for Elderly and Disabled Refugees Act, H.R. 2608, cleared the House on September 17 by a voice vote. The next step is signature by the President. The House had originally passed the bill in July 2007, but the Senate passed an amended bill August 1, 2008. The House acted last week to pass the Senate version, clearing it for final enactment. The bill would temporarily extend the 7-year SSI eligibility period for refugees, asylees, and certain other humanitarian immigrants (including victims of human trafficking) to 9 years for the period October 1, 2008 through September 30, 2011. In order to qualify for the extension, certain noncitizens would be required to sign a declaration indicating that they have made a good faith effort to pursue U. S. citizenship. The 2-year extension would also apply retroactively to those noncitizens whose SSI had previously ceased due to the expiration of the 7-year period. The legislation would be effective October 1, 2008, with the 9-year eligibility period reverting back to a 7-year period after September 30, 2011. A more detailed summary of the bill is available on the Social Security Administration’s website:

http://www.ssa.gov/legislation/legis_bulletin_080108.html

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Obama Plan For The Bureaucracy

Some excerpts from a blueprint for change in the bureaucracy issued by the Obama for President campaign:

• Move Workers from Bloated Bureaucracies to the Frontlines: In many areas of the federal government there is too much Washington bureaucracy – too many layers of managers, and too much paperwork that does not contribute directly to improving the lives of the American people. At the same time, there are too few workers on the front lines in local offices across the country. We need more resources and better tools for food inspectors at the Food and Drug Administration, for nurses at VA hospitals, for air traffic controllers and baggage screeners, and for immigration border control agents. Barack Obama will thin the ranks of Washington middle managers, freeing up resources both for deficit reduction and for increasing the number of frontline workers.
• Cut Federal Spending on Contractors by at Least 10 Percent: Barack Obama will reform federal contracting and reduce the number of contractors, saving $40 billion a year.
• End Abusive No-Bid Contracts and Minimize the Use of Cost-Plus Contracts: In 2006, the federal government spent $206.9 billion on contracts awarded without full and open competition, up from $67.5 billion in 2000. Barack Obama will require each federal agency to defend each of its noncompetitive contracts to the Office of Management and Budget. In addition, cost-plus contracts have increased more than 75 percent under the Bush administration. These contracts are vulnerable to waste because they provide no incentive to control costs. Obama will encourage the use of fixed-cost or incentive-based contracts and when cost-plus contracts are necessary, force agencies to use mitigating procedures like incentives tied to performance goals and cost savings.