Katz Comment On Proposed Representation Rules

Few comments have been posted so far on the proposed new representation rules published by the Social Security Administration. Perhaps the first substantial comment posted is from Ivan Katz of New Haven, CT.

Comments may be posted online. The deadline for comments is November 7, 2008.

Poll

Free Web poll for your Web site - freepolls.com

Big Rep Payee Fraud

I have largely stopped posting about Social Security criminal matters, but I could not ignore this one. From the Seattle Times:

A former Renton man accused of embezzling Social Security payments from hundreds of disabled clients will be returned to Seattle from San Antonio, where he was arrested last week, according to the U.S. Attorney's Office.

Maurice D. Brooks, 46, through his nonprofit company Professional Payee Services, is accused of stealing more than $300,000 from the accounts of more than 300 disabled Social Security beneficiaries while acting as their personal representative and being responsible for seeing that their daily needs are met, according to the U.S. Attorney's Office.

Brooks worked as an "organizational representative payee," the designated gatekeeper for Social Security payments going to his clients who don't have family or anyone else to help them with their finances. The Social Security Administration allows ORPs to deduct a fee of up to $68 a month for each beneficiary the ORP represents, said Assistant U.S. Attorney Johanna Vanderlee. In return, the ORP ensures that the payee has adequate funds for food, lodging and clothing.

Pay Raise But Problems For SSA

The continuing resolution recently passed by Congress contained a pay raise for federal employees, but no relief for the beleaguered Social Security Administration. Here is a little something on the situation from Brittany Ballenstedt at Federal Executive:

"I applaud Congress for approving a fair and adequate pay raise for federal employees in 2009," said Darryl Perkinson, president of the Federal Managers Association. "The 3.9 percent raise sends the message that the work they do for our nation is to be valued and rewarded."

Perkinson added, however, that the passage of the stopgap spending measure would force the Social Security Administration, which provides benefits to 60 million people, to operate on fiscal 2008 funding levels. With a backlog of more than 767,000 requests for disability hearings, he said, an increase in funding is necessary to hire additional staff and bring processing times to less than 500 days.

"The ongoing lack of adequate staffing levels and resources have directly contributed to the backlog," Perkinson said. "For the next six months, and possibly the remainder of fiscal year 2009, SSA will be forced to take a step backwards, instead of moving forward. Simply put, the American people deserve better service."

Social Security Gets Its Wish On Galveston Office

The Social Security Administration has wanted to move its office from Galveston to League City, Texas, but was restrained from doing so by political pressure. Even though the Galveston office suffered only minor damage from Hurricane Ike Social Security has decided to move the field office to League City, at least for now. One local is calling the move a "low blow" to a city battered by a hurricane.

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."