My Comments On Representation NPRM -- Part III, Confusing Definitions

Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants worries me, largely because it is so poorly drafted that I do not know what it means. I am laying out my concerns over several posts. Today's topic is the definitions included in the NPRM. Here are the ones that concern me:

Entity means any business, firm, or other association, including but not limited to partnerships, corporations, for-profit organizations, and not-for-profit organizations. ...

Principal representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements under § 404.1705(b), who has been appointed to represent you in dealings with us and who is responsible for disseminating information and requests from us to you and your other representatives, if any.

Professional representative means any attorney, any individual other than an attorney, or any entity that holds itself out to the public as providing representational services (see § 404.1735) before us, regardless of whether the representative charges or collects a fee for providing the representational services.

Representative means an attorney who meets all of the requirements of § 404.1705(a), an individual other than an attorney who meets all of the requirements of § 404.1705(b), or an entity that meets all of the requirements of § 404.1705(b), whom you appoint to represent you in dealings with us. For purposes of §§ 404.1740 through 404.1799, the term representative also includes an attorney or a non-attorney whom you have not appointed as your representative under the previous sentence but who works for or on behalf of an appointed representative and helps represent you in your claim before us.

If I understand this correctly, I am simultaneously a principal representative, a professional representative and a representative, while my law firm is simultaneously an entity, a principal representative, a professional representative and a representative! Was someone trying to write this in as confusing a way as possible? How can a corporation be any kind of representative? That takes a flesh and blood human being. What is the point of all these definitions and what is the difference between them? I have read the entire NPRM in the Federal Register and I do not comprehend what was intended. How did something so poorly drafted get through Social Security's vetting process?

And to repeat a concern that I have already written about, why is there no definition given for "representational services", a key term in the NPRM?

You may comment on this proposal online and I encourage you to do so.

SSA Sends Regulatory Proposal To OMB -- Apparent Intent To Cut Back Benefits

The Office of Management and Budget, which is part of the White House, must approve all proposed regulations before they go in the Federal Register. Social Security just sent over a package that would "... clarify the definition of 'good cause' and change the protective filing date for title II from 6 months to 60 days to mirror the policy in title XVI. " The change from six months to sixty days is obviously intended to cut benefits. Something tells me that the change in the definition of "good cause" is not designed to help claimants.

SSA Admits Scheduling Hearing Early Due To Pressure

Take a look at this report from WSAV in Savannah about Larry Kirkland, a Social Security disability claimant. The reporter asks a spokesperson for Social Security why Mr. Kirkland's hearing was scheduled almost immediately after the reporter became involved in the case. The response from the Social Security spokesperson, was, "Uh, well, from my understanding there was also some Congressional interest in the case."

I am happy for Mr. Kirkland, but what about all those other claimants who are not the subject of a television report? When Mr. Kirkland is allowed to jump ahead of them in line, they just get pushed back. That is just not fair.

My crystal ball is cloudy, but this looks like the sort of thing that a Social Security Commissioner would allow only if he were not planning to stay around much longer.

My New TV Ads

I may regret doing this but here are three new television ads that my firm has recently started running. They were produced by Gary Davis Media. Do not blame Gary for the spokesman's weaknesses!

Major 9th Circuit Decision On Attorney Fees

The Ninth Circuit Court of Appeals has issued an important opinion in Crawford v. Astrue, holding that:

We read Gisbrecht not to prohibit a district court from making lodestar-type calculations, but only from relying exclusively on such calculations and refusing to consider the contingent-fee agreement. Here, the district court noted that Gisbrecht controls, and considered the contingent-fee agreements. The district court, however, concluded that substantial reductions in the fees under those agreements were necessary for the fees to meet the statutory standard of reasonableness. Those rulings complied with the requirements of Gisbrecht.

Unlike the dissent, we do not read the Supreme Court’s Gisbrecht opinion as mandating any particular procedure or format that the district courts must follow in determining a reasonable attorney fee in social security cases. The Court did not, as the dissent apparently concludes, prescribe that in every case the district court mechanically must begin its analysis with the twenty-five percent contingent fee and then make any reduction in that amount that appears appropriate in the particular case.

As we have noted above, what Gisbrecht held was that “§ 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements.” 535 U.S. at 808. The methodology by which a district makes such reasonableness determinations is for that court to select in the exercise of its sound discretion. In making these determinations, it would be preferable for a district court to begin with the contingency-fee agreement and decrease from there, rather than increase from a lodestar calculation. It does not seem to be an abuse of discretion, however, to use the latter approach as long as the court takes the necessary factors into consideration.

I am not going to the trouble of explaining this. If you do not understand it, you probably would not care anyway.

Employment Levels At Social Security

The Office of Personnel Management has released figures showing the number of employees at federal agencies as of June 2008. Below is the June 2008 figure for Social Security with the numbers from earlier dates for comparison. Note that the number of employees at Social Security went up by 5.2% between March and June of this year and are back to the same level they were when Democrats became the majority party in Congress.

• June 2008 63,622
  
• March 2008 60,465
  
• December 2007 61,822
• September 2007 62,407
• June 2007 62,530
• March 2007 61,867
• December 2006 63,410
• September 2006 63,647
• September 2005 66,147
• September 2004 65,258
• September 2003 64,903
• September 2002 64,648
• September 2001 65,377
• September 2000 64,521
• September 1999 63,957
• September 1998 65,629

Continuing Funding Bill Passes House Of Representatives

The House of Representatives has passed a Continuing Resolution (CR) to keep the government operating until appropriations bills can be passed. This will allow government agencies to spend money at the same rate as under the 2008 appropriations acts, which expire on September 30. until March 6, 2009. There had been hope that Social Security would be allowed to spend money at a higher rate than that, but, as best I can tell, Social Security did not receive such a dispensation from the House of Representatives.

My Thoughts About NPRM On Representation -- Part II, Mandatory Direct Deposit

I am still wading through Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. I see many problems. Here is my second installment on this subject.

The proposal would make direct deposit of fees for representing claimants mandatory. Most attorneys I know would be delighted to receive their fees by direct deposit, except for one problem. How would they know which direct deposit goes with which client? The Department of the Treasury is not sending enough information with direct deposits to allow identification of the client involved. This is already a pain when we deal with payments under the Equal Access to Justice Act (EAJA), but we receive far fewer of those checks. The current maximum fee, after deduction of the user fee is $5,221. If I receive a direct deposit for $5,221 I have no idea what client the fee is for. Social Security's response to this question to this point seems to have been "Uh, uh, uh, why don't you ask Treasury?" I find that attitude unhelpful.

Treasury is not the one proposing this regulation. I am not sure how much clout Social Security will have in getting Treasury to resolve this problem, but I am pretty sure that it is more clout than I and others who represent Social Security claimants will have with Treasury. Social Security needs to get this resolved before they make direct deposit of fees for representing claimants mandatory.

You may comment on this proposal online and I encourage you to do so. This is a major proposal. Everyone who represents Social Security claimants needs to be studying it carefully and submitting comments.