Proposed Representation Regulations -- Part IV Unanswered Questions About Changing Attorneys

You may have thought that I was through posting about Social Security's recently proposed changes to the rules on representation of claimants before the agency. Not even close. I keep trying to find the time to wade through the Notice of Proposed Rule-Making (NPRM). The proposal seem problematic to me in so many respects.

Today I am going to ask some questions about a subject that I think the proposal should address, but do not, claimants who change their attorney or representative:

1. What happens with the fee when a claimant decides to fire his or her attorney or representative and hire a different one?
   
2. What happens with the fee if an attorney or representative fires his or her Social Security client or is forced by circumstances to withdraw from a Social Security case?
   
3. What happens with the fee if a Social Security claimant moves to a different area of the country and needs to change to a different attorney or representative?
4. What happens with the fee if an attorney or representative dies and a Social Security claimant is forced to seek another attorney or representative?
   

These are actually long-standing issues at Social Security. Social Security's answer over the years has been that in any of these circumstances, the fee agreement process may not be used. unless the first attorney or representative waives any fee If that is the case, I think the regulations should say so, but I really think the regulations should say the opposite

I have clients who leave me and hire someone else and I pick up clients who have left other attorneys, so I see both sides of this. It is a pain to take a case almost to the end and have the client move far away, leaving me with the difficult task of obtaining a fee through the fee agreement process, when I will not even know when or if the claimant wins. I hate to give up on getting a fee in these cases when I have done most of the work, but I do most of the time. It is also a pain to take on a case near the end, do virtually all the work and have to do it quickly, and then have some other attorney who may or may not have done much work sticking his hand out demanding a good part of the fee. In either case, the fee agreement process is a pain for everyone including Social Security.

I think the interests of justice would be better served if claimants could change their attorney or representative freely and the attorney or representative who ends up with the case could just get the full fee under the fee agreement process. The current situation just makes it too difficult for a claimant to change to a different attorney or representative, because other attorneys or representatives do not want to get involved with the case because of the attorney fee issue. The emphasis should be on letting the claimant select who they want to represent them without being restrained artificially by Social Security's rules. If the change is made as I suggest, there will be times when I will think it terribly unfair to me. There will be other times when some might think I would receive a windfall, but on the whole I am confident that everything will come out in the wash.

Frequently, I talk with the clients of competent attorneys who are mad at them because of how long things take at Social Security and want to switch to me. I often tell them that my clients are probably calling their attorney because they are mad at me for the same reason. No one wants to encourage claimants to switch to a different attorney or representative because of something the attorney or representative cannot control, but there are some attorneys and representatives out there who do not do their jobs. Their clients are unhappy because they cannot get their calls returned and the attorney or representative does not know what they are doing and are not doing what needs to be done. At the moment, it is terribly difficult for claimants in this situation to change to a different attorney or representative because other attorneys and representatives do not want the fee hassles that come when a claimant switches to a different attorney or representative. This is wrong. I think it is more important to allow claimants to change their attorney or representative freely than to protect attorneys or representatives from clients who want to change to someone different.

Even if Social Security sticks to its current position, it needs to clarify one thing. What happens if the claimant switches to a different attorney or representative and the first attorney or representative agrees to waive the fee because he or she makes an agreement with the new attorney or representative on splitting the fee. There have been suggestions from Social Security that there is something unethical about doing this, that each attorney or representative must file a fee petition and that Social Security must settle how much goes to each attorney or representative. I find this preposterous. If the claimant knows what is going on and approves of it and the fee stays the same, what difference does it make to Social Security how the money is divided? There is nothing in the Social Security Act or regulations that requires such a result. It would be a ridiculous way of further impeding claimants who want or need to change their attorney or representative. The uncertainty that some attorneys or representatives now feel exists on this issue makes it difficult for claimants who need to switch to a different attorney or representative. I have plenty of respect for the attorneys who work for Social Security. I once worked as an attorney for Social Security. However, there are some realities of law practice that one cannot experience working for Social Security. We should not be placing an unnecessary roadblock in the way of a claimant who needs to switch to a different attorney or representative because of some theoretical concern of an attorney who has never been in private practice.

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

Backlogs Are A Little Worse Than Stats Show

A recent report from Social Security's Office of Inspector General (OIG) shows that the statistics that Social Security is reporting on processing times at the Office of Disability Adjudication and Review (ODAR), which is where the Administrative Law Judges (ALJs) work, include cases remanded for a new hearing. Who cares? This inclusion partially masks just how bad the backlogs really are at ODAR. The remands are supposed to be given priority in scheduling. Including cases that are scheduled six months after a remand with cases that are routinely scheduled two years after a new request for hearing makes the backlogs look less bad than they really are. Since remands are 15% of dispositions in some offices, this is not insignificant. Nationally, the difference in 2007 was about 2.5%. OIG recommended that Social Security keep the remand stats separate from the stats for new requests for hearing.

Database Shutdown Remains Controversial

From WFSB in Hartford, CT:

The Social Security Administration’s plan to just down its online systems could hinder 40 states in verifying voter registrations, Secretary of State Susan Bysiewicz said Thursday."

I urge Social Security Administration Commissioner Michael J. Astrue to reconsider the timing of the National Computer Center Annual Building Shutdown from Oct. 11 to 13, 2008," said Bysiewicz. "The shutdown will result in the inaccessibility of online system services just weeks before the Nov. 4 elections. More than 40 states across the country have voter registration deadlines in October, and where state law requires a match against the SSA database, thousands of citizens could be disenfranchised with the system down at such a critical time."

SSNs Off Medicare Cards?

Below is a legislative bulletin from Social Security, but please notice the footnote.

On September 29, 2008, the House suspended the rules and passed H.R. 6600, the “Medicare Identity Theft Prevention Act of 2008,” by voice vote. The bill now goes to the Senate. 1

Provisions of interest to the Social Security Administration are described below.

• Would require the Secretary of Health and Human Services, in consultation with the Commissioner, to establish cost-effective procedures to ensure that Social Security numbers (SSNs) or derivatives thereof would not be displayed on or embedded in Medicare cards.

• Would be effective with respect to Medicare cards issued on or after the effective date determined by the Secretary but in no case would such a date be later than 24 months after the date adequate funding is provided (see penultimate bullet below).

• Would provide that all Medicare cards with SSNs be reissued under the new requirements no later that 3 years after effective date specified above.

• Would allow individuals to apply for reissuance of Medicare cards before the general reissuance effective date under exceptional circumstances as the Secretary would specify.

• Would require the Secretary, in consultation with the Commissioner, to develop an outreach program about the new Medicare cards.

• Would require the Secretary, in consultation with the Commissioner, to submit a report to Congress with options for implementation of the requirements, including costs estimates and justifications of the costs associated with each option. The report would be required no later than 1 year after enactment.

• Would provide that the requirements would not take effect until adequate funding is provided.

• Would authorize, after the report is submitted, appropriations to the Secretary and Commissioner for administrative expenses for each of the 5 fiscal years related to implementation of the bill.

1 It is unclear as of the date of this Bulletin whether the Senate will take action on the bill before the 110th Congress adjourns.

Social Security Denies That Computer Shutdown Will Affect Voter Registration

A press release from Social Security:

For over fifteen years the Social Security Administration has scheduled a shutdown of its National Computer Center on Columbus Day weekend for repairs and maintenance; it has only been postponed once and that was due to special workloads created by Hurricane Katrina. The repair and maintenance is a major production for the agency's system and facility experts that involves scheduling of overtime for key staff, committing contractors to extremely tight turnaround times for the work, and other complexities. As the antiquated National Computer Center has frayed over the years, the importance of timely repairs and maintenance has increased significantly.

Among the many new responsibilities that Congress has added to Social Security's workloads is verifying a small percentage of voter registrations. This year there has been unwarranted concern that the annual shutdown will somehow interfere with voter registration. The system will be up and running until midnight Friday night, so there is plenty of time for voters registering Friday, October 10 to be verified. Voters registered on Saturday, October 11 or Sunday, October 12 can be verified starting Monday, October 13 at 5 a.m. EDT, more than three weeks before the election. When state and local election registrars are working on Columbus Day, Social Security systems will be available to verify registrations, and the agency will be providing its usual same-day service. The expected increased volume of transactions on Monday does not present a problem for prompt response.

Delaying the shutdown into 2009 would pose a small, but not insignificant, risk of a major interruption of service for the hundreds of millions of Americans who rely on our computer systems to provide retirement, disability and survivors benefits, Medicare benefits, employment verification and other services. We have recently indicated in our new strategic plan that Congress needs to support a new National Computer Center, which would help us provide services without interruption.

"As many Americans are enjoying Columbus Day weekend, the hardworking men and women of the Social Security Administration will be working intensely to satisfy every reasonable expectation of service, including voter registration verifications," Commissioner Astrue stated. "I regret that people unfamiliar with the facts of this situation have sought to create a partisan issue where there is none."

What I do not know is whether real time access is needed to verify voter registration. If real time access is not needed, I do not know why anyone ever made an issue of this. If real time access is needed, I do not know why Social Security sent out this press release. Update: I guess I can think of a reason why this would be worth making an issue over even if real time access is unnecessary. Elections offices may be receiving so many new voter registrations that they need to work a lot of overtime to get everyone on the books before election day. Being unable to work that weekend could be a real problem for them. By the way, notice the somewhat truculent tone of the press release. It sounds like Michael Astrue wrote it himself. Can someone with this attitude work with a Democrat in the White House, Democrats in stronger control of Congress, a Democrat as the #2 man at Social Security and a Democrat as his Inspector General? That is what Michael Astrue may face next year if the political trend we see now continues.

Voter Registration Questions Persist And Social Security Not Responding

Roll Call is reporting on the voter registration problems that may be caused by Social Security's scheduled computer shutdown over the Columbus Day weekend. The states are required tunder the feheral Help America Vote Act to crosscheck new voter registrations with Social Security's database. The maintenance is routine, but can still cause problems for election officials. Democrats, in particular, are making a concerted effort to register new voters for the upcoming election. Social Security did not respond to Roll Call's request to discuss the matter.

I hope that no one at Social Security has called the White House to ask what to do about this.

New Administrative Waiver Limit

Social Security typically waives Supplemental Security Income (SSI) overpayments when the claimant requests waiver and the amount of the overpayment is below a certain amount. These are called "administrative" waivers since Social Security believes that the cost of pursuing the overpayment is more than the amount of money involved. The limit had been $500. It was just raised to $1,000 on September 27, 2008.

There are a couple of caveats. The claimant must request waiver. The Social Security field office can decide not to give an administrative waiver if they really think the claimant is a bad actor. What Social Security calls "double check negotiation" (DCN) overpayments are never supposed to be waived. A DCN happens when the claimant reports that his or her monthly check never arrived. Social Security tells the Treasury to issue a replacement check. The claimant then cashes the original check plus the replacement check. That can happen by accident because the claimant is confused, but there are plenty of cases where the same claimant does this repeatedly or where a rash of DCNs happen in one area.

Proposed Procedural Regs

The Social Security Administration just filed this set of proposed amendments to its regulations with the Office of Management and Budget:

We propose to amend several regulations and provide new regulatory language to address inefficiencies in the hearings process. The amendments include provisions clarifying that claims denied by state Disability Determination Services and other adjudicators for “failure to cooperate” are technical denials rather than medical determinations, and providing flexibility in setting the time and place of hearings. We also intend to propose new regulatory provisions that will allow ALJs to dismiss a request for a hearing where a claimant has abandoned his or her claim and to specify regulatory standards that require ALJs to clearly articulate their rationale when issuing decisions on remanded claims.

OMB must approve the proposed regulations before Social Security can publish them in the Federal Register. Probably, this proposal would allow an ALJ to dismiss a request for hearing if the attorney shows up but not the claimant. Would this proposal mean that "failure to cooperate" denials could not be appealed? What does "flexibility in setting the time and place of hearings" mean? Also, I thought Administrative Law Judges (ALJs) were already supposed to "clearly articulate" their rationales. How does adopting a regulation saying that change the situation?