OMB Clears Proposed Rules On Setting Time And Place For ALJ Hearings

The Office of Management and Budget (OMB) has just cleared proposed regulations concerning setting the time and place for hearings before Administrative Law Judges (ALJs). Here is the brief summary given by OMB:

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.

Revised Rules On Overpayments

Social Security has published a final rule in the Federal Register. Here is Social Security's summary:

These rules amend our title II regulations to explicitly provide that we apply an underpayment due an individual to reduce an overpayment to that individual in certain cases. Our title XVI regulations already state this policy. Additionally, these rules reflect our procedures for collecting overpayments when a payment of more than the correct amount is made to a representative payee on behalf of a beneficiary after the beneficiary's death. These rules clarify that we collect overpayments in this situation from only the representative payee or his estate but not from the representative payee's spouse or from the spouse's estate.

Complaints About Dover Hearing Office

Wayne Gilchrest, who represents Delaware in the House of Representatives, has been complaining about service at Social Security's hearing office in Dover, specifically: requests for excessive and redundant medical evidence, unwarranted dismissals, improper handling of terminal illness, medically critical, and dire need claims and inappropriate comments at hearings.

Social Security's Office of Inspector General (OIG) was asked to investigate. OIG's report has been posted. They really did not investigate the Dover hearing office, instead concentrating upon Social Security's handling of the Congressman's complaints and agreed that the agency could handle the complaints better.

I am not familiar with the situation in Dover. I do know that the Social Security Administration has difficulty handling rogue (to use a term in the news) Administrative Law Judges (ALJs). They want to insure good public service but they do not want to interfere with ALJ independence.

SSI Stats Released

Social Security's Office of Policy has released its monthly compilation of statistics concerning the Supplemental Security Income (SSI) program.

There were 7,355,596 recipients of SSI in September 2007. This had risen to 7,509,397 in September 2008, an increase of 2.1% in a year. The number of recipients on account of age actually dropped over this time period, while the number of disability benefit recipients increased by 2.4%, undoubtedly due to the aging of the baby boomer generation.

Cert Petition Denied In Manning

The Supreme Court has denied the petition for a writ of certiorari in Manning v. Astrue, having to do with the issue of whether attorney’s fees awarded under the Equal Access to Justice Act must be paid to the plaintiff directly, where it may be attached by the government for outstanding debts, or to the plaintiff’s attorney. This means that the Supreme Court will not hear the case.

NOSSCR Meeting With SSA Concerning Proposed Representation Regulations

Social Security has posted the following summary concerning a recent meeting about the proposed new regulations on representation of claimants:

Meeting Notes: Revisions to Rules on Representation of Parties NPRM

Location: Social Security Administration
6401 Security Boulevard
Woodlawn, Maryland 21235

Date: October 28, 2008, 3:00-4:30 PM

Participants from Social Security Administration (SSA): JoEllen Felice, Nancy Webb, Everett Jackson, Marg Handel, Zeenat Kolia, Vivi Maddox, Paul Kryglik, Amy Rigney, Joann Anderson, Diana Andrews, and Joshua Silverman

Participants from National Organization of Social Security Claimant Representatives (NOSSCR): Nancy Shor, Ethel Zelenske, Cynthia Berger, John Heard, and Marcia Margolis

Summary:

SSA presented an overview of the NPRM as described in the preamble

Access Registration

NOSSCR asked whether every employee in an entity would need to complete access registration. SSA responded that only an entity’s employees that want to access the electronic folder and employees that perform representational services would need to complete access registration. These would likely included attorneys and paralegals. SSA will consider revising the language in proposed §§404.1713(b) and 416.1513(b) to clarify this policy. NOSSCR requested clarification in other regulatory sections mentioning access registration.

Mandating Electronic Services

NOSSCR said they were excited and supportive of online access, and they appreciated the need for strict authentication procedures.

Use of Form SSA-1696 for Revocation of Representative

NOSSCR said that claimants should not need to file this specific form to revoke the appointment of a representative; rather, claimants should still be allowed to submit any writing revoking the appointment of a representative. They said that SSA should make it easy for a claimant to revoke the appointment of a representative.

Principal Representative Filing an Application for Benefits for a Claimant

NOSSCR supported SSA’s intention to allow applications to be filed online, but they asked SSA to clarify: 1) what protections claimants had from fraud if their principal representatives filed an application online for them, and 2) what protections did a claimant have to monitor a representative’s follow-up action through the appeals process. SSA answered that: 1) a representative will need to certify to the accuracy of the information in the application, 2) the representative will attest that he reviewed the application before filing it with SSA, and 3) SSA will send a copy of the application to the claimant and ask the claimant to review it for accuracy. Unlike the current electronic filing of an application in which SSA proactively contacts a claimant to verify the accuracy of the information, SSA will assume that an application is correct unless a claimant says otherwise. Click-and-sign will have a passive acknowledgement system when no third-party is involved in the filing of an application. Currently SSA asks whether third-parties assist in the completion of online applications.

NOSSCR asked whether SSA intended a different procedure for represented and unrepresented claims. SSA answered that there is no difference in the online application for represented or unrepresented claimants.

NOSSCR asked whether SSA will give information to claimants about fees when a third-party helps a claimant complete an application. NOSSCR was concerned that applicants may not know that they could file claims on their own for free. SSA said that they would consider this.

NOSSCR expressed concern that less-educated or those without English language fluency might not understand the significance of failing to contact SSA if they notice a mistake in an application filed by a representative.

Notices to Claimants

NOSSCR expressed concern that claimants would not received notices under proposed §§404.1715(b) and 416.1515(b). SSA said that claimants would receive notices, and that SSA would consider revising the regulatory language.

Professional Representatives

NOSSCR asked whether a claimant could file his own appeal if he is represented by a professional representative. SSA answered that a claimant could file. NOSSCR requested that this be made clearer in the final rules.

Paper Copies of Applications

NOSSCR asked whether a representative could print a paper copy of the electronic application before it is submitted to SSA. SSA said they would consider this suggestion.

Requiring Professional Representatives to Use Electronic Media

NOSSCR expressed reservations about requiring professional representatives to use electronic media. NOSSCR offered several examples of situations in which computer errors or unforeseen circumstances could affect the ability of a representative to file on time. NOSSCR noted that while the Federal court system contains the ability to have an affidavit in such circumstances, SSA did not propose any such ability. NOSSCR expressed concern that the proposed rules would create a new category of litigation about why a representative could not file timely, particularly because failure to use electronic services is a sanctionable action. NOSSCR suggested making the electronic services aspirational rather than mandatory or including provisions for waivers in certain instances.

NOSSCR also said that the NPRM’s use of “medical factors” in several proposed regulatory sections was inaccurate because initial disability claims involve more issues than that. NOSSCR expressed concern that the proposed rules would create separate procedures for medical and non-medical appeals.

Rules of Conduct

NOSSCR felt that some of the proposed language was vague. As an example, NOSSCR asked whether “assisting” in proposed §§404.1740(c)(12) and 416.1540(c)(12) included the situation when a disqualified a representative transfers his client files to another representative in good standing. NOSSCR suggested adding the word “knowingly” in those proposed sections. NOSSCR also asked whether disbarred attorneys were to be included in proposed §§404.1740(c)(12) and 416.1740(c)(12).

End of Appointment of a Representative

NOSSCR asked whether proposed §§404.1712(c)(7-8) and 416.1512(c)(7-8) meant to end the appointment of an entity representative if shareholder changes occur. NOSSCR also asked why representation should end if an entity reorganizes but there is continuity to for a claimant.

Fee Petitions

NOSSCR asked whether the proposed §§404.1720-.1732 and 416.1520-.1532 meant to only apply to fee petitions or also to fee agreements. SSA replied that the proposed rules only apply to fee petitions where mentioned in the text. NOSSCR asked whether these changes are significant changes to current business practice. SSA responded that these textual changes are not a significant change from the current business practice.

Representational Services

NOSSCR asked what is meant by the undefined phrase “representational services.” SSA replied that they will consider placing examples of representational services in subregulatory instructions. NOSSCR replied that the definition should appear in the regulatory text. SSA responded that it might be difficult to say every example in the text, but that SSA means to include actions like: appearing at a hearing, giving legal guidance, signing legal arguments, and signing an application. SSA might not consider collecting evidence or interacting with the electronic records folder to be representational services.

Filing Fee Petition

NOSSCR asked for clarification about the use of “electronic media we prescribe or at one of our offices” in proposed §§404.1725(a) and 416.1525(a). SSA responded that they intend to develop new electronic services and will publish a notice in the Federal Register when representatives must use the electronic services. Until a service is available, SSA may consider allowing a paper business process.

End of Appointment of a Representative

NOSSCR asked whether the “final determination or decision” in proposed §§404.1712(b)(3) and 416.1512(b)(3) means the receipt of an award notice. NOSSCR asked whether a representative would need to submit a new Form SSA-1696 if an award notice contained a computation error. SSA responded that a new Form SSA-1696 would probably be needed. NOSSCR responded that the proposed process is inefficient to fix a payment amount because there are issues that commonly arise with Supplemental Security Income program, such as income and resources and living arrangements issues. NOSSCR suggested changing the regulatory text to specifically mention “60 days after receipt of award notice.” SSA said that they would consider this change.

Form SSA-1696

NOSSCR asked how long a representative would need to keep a paper copy of the Form SSA-1696 under proposed §§404.1740(b)(3)(iii) and 416.1540(b)(3)(iii). NOSSCR also asked whether a representative could keep a scanned copy. SSA replied that NOSSCR should provide written comment.

NOSSCR asked whether the Form SSA-1696 would be multiple pages. SSA confirmed this.

Contact Person

NOSSCR asked who was the “contact person” in 73 FR 51964? SSA explained that an entity needed a contact person with whom SSA could communicate. NOSSCR asked whether the contact person was the same as the principal representative. SSA replied that they are not the same. A principal representative can be an entity, and in such a case the entity would need to identify a contact person who works for the entity with whom SSA can communicate.

Direct Deposit Registration

NOSSCR suggested that SSA collect attorneys’ state bar association identification numbers when attorneys register to help save time. NOSSCR also suggested that SSA request letters of good standing from state bar associations for the states in which an attorney is licensed to practice to help alert SSA if there was an ethics or other problem. NOSSCR suggested dealing with the problem early rather than relying solely on the sanctions process after a problem occurs.

Direct Deposit

NOSSCR asked whether SSA would be able to remove an overpayment directly from a representative’s account. SSA said that a representative would be given notice and the opportunity to respond before SSA would collect money from a bank account.

NOSSCR noted that some representatives have commented on the NPRM that they cannot ascertain for which claimant a payment is made when SSA pays by direct deposit. NOSSCR reported that many banks don’t understand how to transfer the accounting information of a claimant’s payment to a representative. NOSSCR suggested that SSA prepare an official fact sheet to educate banks on how to transfer this information to representatives. SSA responded that this information is already available on www.ssa.gov, but that SSA would consider preparing a fact sheet.

NADR Meeting With SSA Concerning Proposed Representation Regulations

Social Security has posted the following summary of a meeting about the proposed new regulations on representation of claimants (emphasis added):

Meeting Notes: Revisions to Rules on Representation of Parties NPRM

Location: Social Security Administration
6401 Security Boulevard
Woodlawn, Maryland 21235

Date: October 30, 2008, 2:00-2:45 PM

Participants from Social Security Administration (SSA): Nancy Webb, Everett Jackson, Marg Handel, Zeenat Kolia, Vivi Maddox, Paul Kryglik, Amy Rigney, Joann Anderson, Sarah Humphreys, Jeff Blair, and Joshua Silverman

Participants from National Association of Disability Representatives (NADR): Jeanne Morin, Art Kaufman, and Lou Enoff

Summary:

SSA presented an overview of the NPRM as described in the preamble

Revocation of Fee Agreement

NADR asked that under proposed §§404.1707(d) and 416.1507(d), what happens to the fee agreement if a claimant revokes the appointment well into the process, and then subsequently is determined eligible for benefits.

SSA answered that the proposed regulation will not change payment of fees. As under the current process outlined in subregulatory instructions (POMS GN 03940.003(B)(3)), this is an exception to the fee agreement process. The fee agreement will be denied and the representative will have to submit a petition and look to the claimant for payment of fees.

NADR asked whether a claimant, who already appointed a non-attorney eligible to participate in the demonstration project as his representative, and who appoints an attorney to represent him before a Federal court, needs to file a new Form SSA-1696 for the non-attorney representative on a court remand. SSA replied that this situation is not affected by the NPRM and that the claimant’s appointment of another representative did not revoke the appointment of the earlier representative.

Multiple Representatives and Fees

NADR asked how fees are divided if there is more than one representative, either consecutively or concurrently, with fee agreements.

SSA answered that the proposed regulation will not change the payment of fees in this situation. SSA will authorize to each appointed co-representative an equal share of the total fee amount calculated under the terms of the approved fee agreement. Because SSA does not consider individual services in authorizing fees under the fee agreement process, SSA considers each co-representative entitled to an equal share of the total fee amount authorized for all the representation work in the case. For example, if the claimant appointed two representatives, SSA would authorize to each half the total amount calculated under the terms of the fee agreement. This is contained in subregulatory instructions (POMS GN 03940.009).

End of Representation

NADR asked whether, under proposed §§404.1712(b)(4) and 416.1712(b)(4), a representative had authority to talk to SSA about a claim if he is paid incorrectly, or the claimant is paid but the representative is not. Will SSA refuse to discuss the case because the fee petition has been filed and the representation had ended?

SSA answered that the representative’s submission of a fee petition is just one of several events that may end a representative's appointment and his authority to act on a claimant's behalf. If the representative has concerns about incorrect payment to the claimant, the representative's services to the client have not ended and the representative should not submit his fee petition until all of those issues have been resolved. The current regulations at §§404.1725 and 416.1525 explain that the representative should not file his request for a fee until his services have been completed. Once the representative's appointment has ended, SSA will not discuss the claimant's case with the representative. However, if the representative has an issue in regard to his fee, such as non-receipt or an incorrect payment amount, SSA may discuss and resolve that issue with the representative.

Direct Payment of Fees

NADR asked what assurances SSA will make so that an electronic funds transfer (EFT) payment contains an identifier, such as a claimant’s name or social security number, so that the representative knows with which claimant the payment is associated.

SSA responded that when SSA decides to pay a claimant, SSA sends a payment file to the Department of the Treasury (Treasury) that contains the first four initials of a claimant’s first name, the first 13 initials of a claimant’s last name, the claimant’s social security number, and the payment amount. If a claimant is represented, Treasury sends all of this information to the representative’s financial institution when Treasury transfers a payment. The financial institution decides how much information to give to an account-holder. SSA encourages representatives to speak with their financial institution to get this information.

NADR replied that financial institutions usually only send out a statement monthly, and that representatives may not know about payments received for several weeks. NADR asked whether SSA can send emails to representatives notifying payment to Treasury about a claimant. SSA replied that they would consider this.

Definition of Representational Services

NADR asked what is the definition of representational services in §§404.1730(f)(2) and 416.1530(f)(2).

SSA replied that they will consider placing examples of representational services in subregulatory instructions and in a public desk guide because it might be difficult to say every example in the regulatory text, but that SSA means to include actions like: appearing at a hearing, giving legal guidance, signing legal arguments such as grid identification, and signing an application. SSA might not consider collecting or submitting evidence or asking for claims status to be representational services. NADR asked whether an individual working at the direction of the qualified representative who performs intake or requests records is performing representational services. SSA answered that these are not representational services and would not disqualify the entity for direct payment.

NADR asked whether a non-attorney, who is employed by an appointed firm but is not participating in the direct payment demonstration project, and who appears at the hearing on behalf of the claimant would make the firm ineligible for direct payment. SSA responded affirmatively and NADR indicated that they would submit in a comment.

Affirmative Duties for Representatives

NADR said that often, despite the representative's best efforts, doctors and medical facilities do not respond to requests for records. If SSA is going to obligate the representative to provide prompt answers to requests for information under proposed §§404.1740(b)(3)(ii) and 416.1540(b)(3)(ii), what tools will it provide to ensure compliance by third parties with requests for records that the representative needs to fulfill this requirement?

SSA answered that this duty is not new. SSA originally published this affirmative duty in 1998 in the Standards of Conduct for Claimant Representatives (63 FR 41,404). This duty remains substantively unchanged in this NPRM and does not impose any new or enhanced duties on representatives. The NPRM contains ministerial changes only. We understand that despite representatives' best efforts it may be difficult to obtain the requested information. The preamble to the 1998 final rules discusses three affirmative duties related to a representative's obligation to obtain and submit information and evidence to SSA (§§ 404.1740(b)(1-3) and 416.1540(b)(1-3)) and recognizes this real-world difficulty. In that preamble, we said that "the representative should make a reasonable effort to obtain and organize the available evidence and submit it to SSA . . . . For example, if a representative has made several attempts to obtain the requested information from the claimant or another source without receiving a response, we will likely determine that such efforts are in compliance with our rules." We also stated that in applying 20 C.F.R. §§ 404.1740(b)(3)(ii) and 416.1540(b)(3)(ii), "we will not expect the representative to . . . obtain information that is not readily available. Instead, the rule is intended to ensure that representatives are responsive to our inquiries so that the processing of the claim will not be delayed pending a response from the representative on the claimant's behalf."

In determining whether a representative has failed to comply with any of SSA’s rules of conduct, SSA also has said that "we intend to deal with each complaint on a case-by-case basis to determine whether under the attending circumstances, a representative engaged in actionable misconduct. In making this determination we will apply an objective test, that is, whether a reasonable person, in light of all the circumstances, would consider the act or omission violative of the rule in question." 62 FR 352 (1997).

This rule only requires "prompt and responsive answers to requests from the Agency for information." It does not require the representative to provide documents that the representative, despite diligent effort, has not been able to obtain. Under such circumstances, all a representative would have to do is promptly respond to SSA requester that the representative has made every effort to obtain the information, but that the effort has not been successful. For these reasons, SSA does not believe it is necessary to develop tools to ensure third-party compliance with representatives' requests for records.

NADR asked whether SSA could strengthen the enforcement power of ALJs’ subpoenas, as was proposed in Amendments to the Administrative Law Judge, Appeals Council, and Decision Review Board Appeals Levels NPRM, 72 FR 61218 (2007)? SSA responded that subpoenas are outside the scope of this NPRM.

NADR said that they could not track some preamble language to the proposed regulatory text. SSA requested NADR submit a comment. NADR asked what was the purpose and effect of preamble language in an NPRM. SSA responded that preamble language does not have the force and effect of regulatory language but that it is like legislative history because it explains SSA’s intent to the regulatory text.

Sanctions Hearing Against Representative

NADR asked whether SSA has a policy to ensure that the ALJ in a sanctions hearing under proposed §§404.1765(b) and 416.1565(b) will be from a different office, or even different department, that has no normal interaction with the representative, to ensure that it is a fair and impartial hearing?

SSA responded that it is a longstanding SSA policy to do so. In the preamble to SSA's 1991 Final Rules on the Suspension and Disqualification of Representatives (56 FR 24,129), SSA said: “ALJs are assigned to cases in rotation so far as practicable. In [representative sanction actions], however, it is not practicable to employ a strict rotation because of variable factors such as: the availability of the ALJ; office workload; individual docket considerations; and the practice of choosing an ALJ stationed outside the geographic area in which the charged representative resides, who does not normally adjudicate cases in which the representative has an interest." The Office of Disability Adjudication and Review, and its predecessor, the Office of Hearings and Appeals, have followed this practice since at least 1991.

Notifying Claimants about Sanctioned Representatives

NADR asked what happens to a claimant with whom a disqualified or suspended representative is currently working. Are there procedures for notifying the claimant and providing him with information on his options for obtaining new representation?

SSA replied that when the decision to suspend or disqualify a representative is final, SSA notifies the sanctioned representative's clients that SSA no longer recognizes the person as a representative because of his suspension or disqualification. In notifying these clients, SSA reassures them that the sanction is not the result of any wrongdoing by them, and tells them that SSA will work with them directly on their claim, including assisting in the development, until they appoint someone new. (See POMS GN 03970.060D and 03970.065). SSA’s regulations and policies require SSA to advise claimants about their right to representation, and this policy remains unchanged by the suspension or disqualification of their original representative. SSA also maintains a representation referral list that is available to the public. SSA’s rules (§§404.1706 and 416.1506; POMS GN 03910.030; and HALLEX I-1-1-3, I-2-0-20C, and I-2-0-92) discuss the policy on notifying unrepresented claimants about their representation options.

Congressional Pressure Brings About A Shift In Florida

The Social Security Disability Benefits Blog reports that workload is being diverted from the Social Security's hearing office in Tampa to the hearing office in Fort Lauderdale, apparently in response to pressure from Congresswoman Kathy Castor.