NPRM Part VI -- Ethics -- And Those Loaded Words "Fiduciary" And "Profession"

I am not through talking about Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants. My topic today is provisions in the proposal concerning ethics for those who represent claimants. Let me just copy here the parts that I am talking about today:

All persons acting on behalf of a party seeking a statutory right or benefit must, in their dealings with us, faithfully execute their duties as agents and fiduciaries of a party. ...

A representative must ... Conduct the representative’s dealings in a manner that furthers the efficient, fair, and orderly conduct of the administrative decision-making process, including duties to:

• This includes knowing the significant issue(s) in a claim and having a working knowledge of the applicable provisions of the Social Security Act, as amended, the regulations and the Rulings;
• This includes providing prompt and responsive answers to requests from the Agency for information pertinent to processing of the claim; ...

A representative must not:

• Through the representative’s own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see § 404.911(b)), the processing of a claim at any stage of the administrative decision-making process;
• Attempt to influence, directly or indirectly, the outcome of a decision, determination or other administrative action by offering or granting a loan, gift, entertainment or anything of value to a presiding official, Agency employee or witness who is or may reasonably be expected to be involved in the administrative decisionmaking process, except as reimbursement for legitimately incurred expenses or lawful compensation for the services of an expert witness retained on a noncontingency basis to provide evidence;
• Threatening or intimidating language, gestures or actions directed at a presiding official, witness or Agency employee which results in a disruption of the orderly presentation and reception of evidence;
• Violate any section of the Social Security Act for which a criminal or civil monetary penalty is prescribed;
• Refuse to comply with any of our rules or regulations;
• Suggest, assist, or direct another person to violate our rules or regulations;
• Advise any claimant or beneficiary not to comply with any of our rules and regulations;
• Assist another person whom we have suspended or disqualified; or
• Fail to comply with our decision regarding sanctions.

This talks about a representative acting as a fiduciary. It seems to me that this means that failing to failing to behave as a fiduciary on behalf of a claimant is a punishable offense. The term fiduciary implies many important duties. Those duties vary somewhat from jurisdiction to jurisdiction, but having a conflict of interest is always forbidden. In this context, one example of a conflict of interest would be trying to represent a Social Security disability claimant while also working as a contractor for the Social Security Administration. There are a few people who attempt to work as a vocational expert for the Social Security Administration,while also trying to represent claimants. That raises my eyebrows. Does this proposal mean to end that? I hope so. Maximus is a large Social Security contractor, but also represents Social Security claimants. That seems wrong to me. Another example would be trying to represent Social Security claimants at the behest of an insurance company which has an adversarial relationship with the claimant. Allsup is not only doing this big time, but is also serving as a debt collector for the insurance companies. I hope that Social Security meant to forbid these sorts of relationships. This is not the sort of thing that a fiduciary should be doing.

If we are going to start down this path of regulating non-attorney representative conduct in a way that has some similarity to the regulation of attorneys, as the use of the word fiduciary implies -- and I think we should -- there are other duties that I think ought to be incorporated into the regulations, such as:

• Communicate with the client
• Maintain confidentiality of information received from the client
• Avoid sexual relations with the client
• Keep advertisements truthful
• Maintain independence from the influence of individuals or entities who are not professional representatives
  

We now have a large and growing group of individuals who have what amounts to an officially recognized license to represent Social Security claimants, which makes this group a profession. However, this nascent profession is not now subject to the sort of disciplinary rules that apply to attorneys and other professionals. If this group is a profession, it is time for them to accept, even welcome, the ethical responsibilities that go along with being a profession. If they are not a profession, they should not be getting this sort of government license.

To move on, a lot of what is in the proposal is vague, almost to the point of being unconstitutionally vague. Prompt and responsive answers? Unreasonably delay? Threatening or intimidating language, gestures or actions? Fail to comply with ANY of our rules or regulations? And why does this talk of rules AND regulations unless it intends to draw a distinction between the two, but the distinction is somewhere between elusive and non-existent, unless you want to include something like POMS as rules but not regulations. I think it would be ridiculous to discipline someone for violating something hidden away in the vast recesses of POMS. I know it can be hard to define a lot of this. Much falls into the category of "I know it when I see it," but this proposal is still awfully vague. Without something more specific Social Security will never be able to make charges stick unless the representative's conduct is really, really bad.

I am glad that this forbids representatives from assisting those who have been suspended or disqualified. I think it should also forbid assisting disbarred attorneys who have not been suspended or disqualified by Social Security.

I also suggest that a provision be added to forbid professional representatives from serving as institutional representative payees. There have been a number of criminal cases arising from what this proposal would call professional representatives serving as institutional representative payees. These two roles do not seem to mix well. It would be best to forbid this combination.

You may comment on this proposal online and I encourage you to do so. This proposal has many implications. There should be many comments.

COLA Draws Attention

I find it amusing that this blog is getting a large number of hits from people searching for "Cost of Living Adjustment" or "COLA." Social Security recipients are very interested in what the COLA will be for this year.

If I knew, I would tell you. I can say that inflation has been relatively high this year, so the COLA should be relatively high as well, probably about 6%. Keep checking back.

Once the COLA figure is released, it will be posted here promptly. Last year, the COLA numbers were released on October 25.

Effects Of Continuing Resolution

From the Federal Times, which is not afraid of using a lot of paragraphs:

Agencies may have extra difficulty replacing departing employees and training existing ones during the next five months [while most of the government is operating under a continuing resolution that funds operations at the same rate as the last fiscal year]. ...

Richard Warsinskey, at the Social Security Administration office in Cleveland, is one manager who’s frustrated by the extended delay of his agency’s 2009 appropriation. During a CR, hiring slows down considerably, he said.

“We spend a lot of money recruiting, but we’re only able to hire in these short windows when we’re not under a CR. We should be able to hire when we have an opening and the right person,” he said.

The CR will frustrate the agency’s ability to catch up on a 750,000-case backlog for benefits claims, Warsinskey said. Cases wait more than 18 months on average to be heard by administrative law judges because not enough staff members are on hand to prepare the cases for review.

Congress appropriated $150 million more than the president requested in 2008 in order to reduce that backlog, said Jessica Klement, government affairs director for the Federal Managers Association.

“Constituents were calling because they weren’t getting their benefits, and they were dying while they waited,” she said.

The extra money in 2008 allowed SSA to hire nearly 200 administrative law judges and make a dent in the backlog, although that progress may be lost after five months under a CR.

For now, SSA will cut back on spending for needs such as replacing aging computers and software. It will also order fewer office supplies, keeping a bare minimum on hand, said Warsinskey, who until recently served as president of National Council of Social Security Management Associations.

There also will be more training by satellite and less travel, he said.

Proposed Representation Rules -- Part V -- Slow Down On Requiring Dealings Electronically

Social Security's Notice of Proposed Rule-Making (NPRM) on the representation of claimants troubles me in many ways. My topic today is the requirement in the proposed regulations that those who represent claimants deal with the agency electronically.

Let me start by saying that my firm is already scanning virtually everything that comes into our office. We regularly upload records using Electronic Records Express (ERE) and we file almost all of our appeals electronically. I am not afraid of technology. My firm is already doing what the proposed regulation would demand of other Social Security attorneys.

My biggest concern with this proposal is that Social Security is not ready for it. The agency has consistently and badly underestimated how long it takes for it to roll out new technology. While there are those at Social Security who would claim that the agency has already rolled out the electronic file, my experience is that Social Security is a long way from finishing working out the bugs in the electronic file. Let me give an example of the problems that Social Security has that are already impacting those who cooperate with the agency. At the moment, there are many complaints in North Carolina from attorneys who are unable to fax records into electronic files because they constantly get a busy signal. My fear is that Social Security will adopt this regulation and then find that its systems are overwhelmed by volume for which it is unprepared. While ERE is working OK for now, my guess is that it is susceptible to being overwhelmed once more people start to use it, just like the fax lines. I have no confidence that the bandwidth is there now or that it will be there any time soon.

Since the beginning of the Bush Administration, the Social Security Administration has been on a crash program to convert to digital. The reason has been simple. Social Security's management can see that its workloads are getting larger and larger every year, yet it has been made clear to agency management, if not to the public, that staffing increases are absolutely out of the question. It does not matter how bad things get at Social Security, the agency is not getting more personnel. Social Security's staff must ratchet downwards regardless. That has been the polar star for Social Security upper management. Agency management has been forced to seek other means for dealing with its workload. The only option was to believe, or at least hope, that a digital conversion would result in massive productivity gains. This has not worked so far. There is scant reason to hope that it will work.

It may take quite some time for high level management to wrap their minds around it, but there is a lot of reason to believe that Social Security will be able to increase its staffing levels considerably in coming years. George W. Bush will be out of the White House in less than four months. Unless there is a political earthquake Democrats will have much more certain control of Congress come January. Even if John McCain is elected President, which now seems unlikely, the political equation for Social Security's operating budget is going to change radically in the very near future.

Productivity gains from going digital are non-existent so far. You might ask how I know that there have been no productivity gains from going digital. There have been no studies released showing the effects of going digital on productivity at Social Security. The fact that Social Security has released no studies showing the effects of electronic files on productivity tells me all I need to know. Social Security would not be shy about telling the world if it had studies showing that the electronic file was helping productivity. No studies being released means that whatever studies have been done have shown results that would embarrass Social Security or that Social Security is afraid to even do studies because they do not want them leaking out.

My message to Social Security is, slow down on this digital conversion. Being overhasty has caused the agency nothing but problems. There is scant evidence that going digital is ever going to solve the Social Security's workload problem. It is too late to stop making the conversion, but there is no more reason to rush it, especially since additional staff is likely to be coming,by the 2010 fiscal year, at the latest.

Social Security ought to get its plan to allow attorneys and representatives to access their clients' files online and working well before it goes ahead with these proposed regulations. To my mind, it is basic fairness for this to be in place before Social Security starts making additional demands on those who represent claimants. If the Social Security Administration wants this degree of cooperation from those who represent claimants, it ought to be offering something in return. As a practical matter, by the time online access to claimants' files is working well, the bandwidth should be there to make ERE work efficiently and the fax machine and other issues with the electronic file should be worked out.

Social Security should get back to implementing new technology in a slow steady way. Knock off the crash plans. They have not worked and they are no longer necessary.

You may comment on this proposal online.

First Meeting Of Future Systems Technology Advisory Panel -- Who Is On It?

Commissioner Astrue has set up a Future Systems Advisory Panel for Social Security. Today's Federal Register contains a notice that this body will hold its first meeting on October 23. I cannot seem to find a list of who was appointed to this body. Can anyone help me.

SSA Now Involved In Voter Suppression Effort?

First, Social Security was unwilling to keep its database open over the Columbus Day weekend to help voter registration efforts. Now this press release from Social Security:

Michael J. Astrue, Commissioner of Social Security, on Friday contacted the Secretaries of State for Alabama, Georgia, Indiana, Nevada, North Carolina and Ohio and asked them, based on extraordinarily high levels of requests to SSA, to review their procedures to ensure that they are fully complying with applicable federal laws relating to the registration of voters. Under the Help America Vote Act of 2002, most States are required to verify the last four digits of the Social Security number of only those new people seeking to register to vote who do not possess a valid State driver’s license.

“It is absolutely essential that people entitled to register to vote are allowed to do so,” Commissioner Astrue stated. “While there may well be legitimate explanations for the high levels of requests, I am confident that the States we have contacted will review their procedures promptly to ensure that they are in full compliance with federal law.”

There have been many complaints from Democrats that the Republican party has been attempting to use the levers of government to make it more difficult to register new voters and to suppress Democratic turnout at the polls. Whether fair or not, this press release will be perceived to be part of that campaign. I think that issuing the press release was an extremely unwise move, especially if Michael Astrue has any ambition to continue serving as Social Security Commissioner if Banack Obama is elected President.

Update: A number of people are telling me that I am misreading this press release, that Social Security's only intent is to help voter registration personnel who may be unnecessarily verifying Social Security numbers. Yes, one can read this press release in that way and that is probably what was intended, but someone who really wanted to help voter registration officials might not have sent out a press release at all and certainly would not have sent out a press release which basically says "Why are you registering so many new voters? Are you doing something illegal?" Voter registration laws are not Social Security's area of expertise. Telling people whose area of expertise is voter registration that they do not know their jobs is arrogant. This is especially obnoxious when it is combined with a strong insinuation of illegal behavior. I think anyone reading the press release would have to think that whoever wrote it was dismayed by all the voter registration going on. This press release happened when Michael Astrue was confronted by criticism in a politically charged environment. Very few people were even aware of the criticism, but Astrue went ballistic in a press release. Now think what happens when Astrue is forced to work with a President, a Congress, a Deputy Commissioner and an Inspector General who are all members of the Democratic party. That is what happens if Barack Obama is elected and Astrue elects to serve out his term as Commissioner. Michael Astrue's personality is not suited to working with others who disagree with him and who distrust him. Throughtout his career he has been quick to acuse others of impropriety when they disagreed with him.

NCSSMA Issues Newsletter With Astrue Interview

The National Council of Social Security Management Associations (NCSSMA) has released the October 2008 issue of Frontline, its newsletter. This issue features an interview with Commissioner Astrue.

The Commissioner said that his agency may be faced with operating under a year long continuing resolution (CR) for the 2009 fiscal year (FY), which would freeze the agency's budget at the . He promised a 1-1 replacement ratio for departing employees of the Office of Disability Adjudication and Review (ODAR), which is where the Administrative Law Judges (ALJs) work, but only a 1-3 replacement ratio for the rest of Social Security. It is not clear from the article, but Astrue must have been talking about the staffing replacement ratios under a year long CR. I suppose the Commissioner and his staff need to prepare for the worst, but I cannot imagine that the Commissioner expects a year long CR if Barack Obama is elected.

The Commissioner talked of opening five new hearing offices in areas of highest backlogs, but did not say where those would go.

Astrue told NCSSMA that he would like to see his agency go from its current 61,000 employees to 65,000 employees, but did not say when he would propose a budget that would accomplish this.

The newsletter also says that Linda McMahon, Social Security's Deputy Commissioner for Operations, told the group that the agency had suffered "unexpected contract increases" of $450 million! No explanation was given. $450 million might even be enough to pay for those extra 4,000 employees that Commissioner Astrue talked about.

An article in the newsletter talks of a serious shortage of computer workstations at Social Security field offices. A survey showed that 44% of NCSSMA members were reporting problems and 24% reported this to be having a somewhat to very significant impact on waiting times. The San Francisco region is having the most problems.

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.