Final Rules On Non-Attorney Representation

     From today's Federal Register:

We are adopting, with two revisions, our interim final rules that implemented amendments to the Social Security Act (Act) made by the Social Security Disability Applicants' Access to Professional Representation Act of 2010 (PRA). The interim final rules made permanent the direct fee payment rules for eligible non-attorney representatives under titles II and XVI of the Act and for attorney representatives under title XVI of the Act. They also revised some of our eligibility policies for non-attorney representatives under titles II and XVI of the Act. Based on public comment and subsequent inquiries, we are revising our rules to clarify that an eligible non- attorney representative's liability insurance policy must include malpractice coverage. We are also reaffirming that a business entity legally permitted to provide the required insurance in the States in which the non-attorney representative conducts business must underwrite the policies.

GAO Report On Representation Paid For By States And Localities

     From a report by the Government Accountability Office (GAO):

Little is known about the extent to which states are contracting with private organizations to help individuals who receive state or county assistance apply for federal disability programs. Representatives from these private organizations help individuals apply for Supplemental Security Income (SSI) and Disability Insurance (DI) from the Social Security Administration (SSA). Available evidence suggests that this practice — known as SSI/DI advocacy — accounts for a small proportion of federal disability claims. Using a variety of methods, including interviewing stakeholders, GAO identified 16 states with some type of SSI/DI advocacy contract in 2014. In addition, GAO analyzed a sample of 2010 claims nationwide and estimated that such contracts accounted for about 5 percent of initial disability claims with nonattorney representatives, or about 1 percent of all initial disability claims. Representatives working under contract to other third parties, such as private insurers and hospitals, accounted for an estimated 30 percent of initial disability claims with nonattorney representatives . 

Three selected sites represented different approaches to SSI/DI advocacy, but were similar in many respects. For example , Minnesota contracted with 55 nonprofit and for - profit organizations, while Hawaii and Westchester County, New York , each had a single contractor: a legal aid organization, and a for-profit company, respectively. At the same time, all three sites targeted recipients of similar state and county programs, such as General Assistance, and generally paid contractors only for approved disability claims, among other similarities.

SSA has controls to ensure representatives follow program rules and regulations, but these controls are not specific to those working under contract to states or other third parties and may not be sufficient to assess risks and prevent overpayments — known by SSA as fee violations. Specifically:

• Despite the growing involvement of different types of representatives in the initial disability determination process, SSA does not have readily available data on representatives, particularly those it does not pay directly. This hinders SSA’s ability to identify trends and assess risks, a key internal control. SSA’s existing data are limited and are not used to provide staff with routine information, such as the number of claims associated with a given representative. SSA has plans to combine data on representatives across systems, but these plans are still in development.

• SSA does not coordinate its direct payments to representatives with states or other third parties that might also pay representatives, a risk GAO identified in 2007. In cases involving SSI/DI advocacy contracts, a representative may be able to collect payments from both the state and from SSA, potentially resulting in an overpayment — a violation of SSA’s regulations.

     Why would states or localities pay people to represent Social Security or Supplemental Security Income (SSI) disability claimants? Because receipt of those benefits paid for by the federal government would reduce or eliminate the liability of those states or localities for various forms of benefits they are responsible for. The states and localities want to shift costs to the federal government.
     Overall, I don't think there is enough risk that there is anything bad going on with this form of representation to justify much effort to collect data on it or to try to coordinate payments with the states or localities involved, which is basically the point that Social Security made in responding to this GAO study.

Charles Binder Responds

     I have received an e-mail from Charles E. Binder of Binder and Binder today. Here's part of it:

You have written that Binder & Binder "can no longer afford to update medical records" because of its bankruptcy filing.  That is completely untrue and I have no idea what the basis for your statement could be.  Although Binder & Binder is in bankruptcy, its primary concern remains to ensure that its clients are competently represented.  That remains my personal goal as well.

Binder & Binder's policy on medical records remains unchanged.  There are multiple components.   First, the most crucial evidence is not usually medical records, which are often illegible, vague and rarely address the client's disability, although Binder & Binder routinely seeks the doctors' office notes from treating sources.  What Binder & Binder really wants is a narrative from a treating doctor summarizing the client's history, treatment, diagnosis, prognosis, etc.  If that is not possible, Binder & Binder asks the treating doctor to fill out a questionnaire answering the questions that the SSA deems crucial when deciding disability claims.  When the doctors' records are important and Binder & Binder can not get them or the client cannot afford to pay for them, Binder & Binder asks the SSA to issue subpoenas for the records.  I note that our client retainer agreement has long provided that the client is responsible for payment for medical records.  Nonetheless, Binder & Binder routinely pays the cost of obtaining narratives and answers to questionnaires (and medical records too) when clients cannot afford to pay the doctors' bills to get the information.

     I believe that obtaining existing medical records relating to a claimant's disability which have not already been obtained by Social Security is a crucial part of representing a Social Security disability claimant. Fronting the costs of obtaining those records is a traditional part of representing Social Security claimants. Even looking at it from a strictly selfish point of view, refusing to front the costs of obtaining existing medical records seems irrational to me. The costs of obtaining the records are modest. The risk of losing because the records aren't obtained is significant. The fees from one additional case won will pay for the expenses of obtaining records for dozens of claimants. Besides, in most cases it's possible to obtain reimbursement from the client after they've been paid by Social Security.

Astrue Doesn't Think Much Of OPM's Screening Of SES Candidates

     Former Social Security Commissioner Michael Astrue doesn't think much of the job that the Office of Personnel Management (OPM) does in screening applicants for top level jobs in the Senior Executive Service (SES). Here are some quotes from a recent interview with Astrue done by Federal News Radio:

• It makes it much more difficult to get outstanding talent from the outside, and I lost a couple of really terrific people that way. And it also means that they [OPM] undervalue skill sets that are important. And it's particularly true for information technology.
• You'd try and talk to them [OPM] and they'd say, "Well, this person hasn't managed 50 people," or something like that. And we'd say it's an IT person, it's a lawyer coming out of one of the very best law firms in Washington. They typically don't get those types of experiences, that's not the way their worlds are. But they're outstanding because they have this accomplishment, this accomplishment and this accomplishment, and these are needs that the agency has. And they basically said, "We don't care."
• It's a very large agency, so it meant a lot of people were getting sort of a thank-you SES appointment right before retirement. And that's a nice sentiment, but it's not really what the SES is about. It was, I think, hurting continuity at the agency.

NADE Newsletter

     The National Association of Disability Employees (NADE), an organization of personnel involved in making disability determinations for Social Security at the initial and reconsideration levels, has issued its Winter 2015 Newsletter.

Details On Binder And Binder Bankruptcy

     A non-attorney group has a website about the Binder and Binder bankruptcy. It urges those affected to "Fire Binder And Binder Now." It has some information about Binder and Binder's bankruptcy including a document showing that Binder and Binder is planning a lot of layoffs:

• 20 Advocate employees will be fired by December 2016
• ALL 109 call center employees will be fired in the next six months
• 113 clerical employees will be fired by December 2016
• 10 Fee employees will be fired by December 2016
• 118 Hearing Casework employees will be fired by December 2016
• ALL 75 IA/Recon employees will be fired in the next year
• 14 IA/Hearing employees will be fired by December 2016
• ALL 28 Interview employees will be fired in the next six months
• 18 Management employees will be fired by December 2016
• ALL 52 Open Files employees will be fired in the next six months
• 12 Operator employees will be fired by December 2016
• 4 Travel employees will be fired by December 2015
• 34 Writer employees will be fired by December 2016
• IN TOTAL, 611 people will lose their jobs because of Binder & Binder’s bankruptcy

     According to the website, Binder and Binder came into Chapter 11 behind on health care insurance and utility payments.

     By the way, the Binder and Binder website says nothing about the bankruptcy. I suppose they don't know what to say. In the best of times the Binder and Binder website was like their TV ads, amateurish.

Happy New Year!

Binder And Binder No Longer Getting Medical Records

     I'm hearing that Binder and Binder, which is in Chapter 11 bankruptcy, is telling Social Security's hearing offices that it can no longer afford to update medical records on the people it represents. Binder and Binder is asking Social Security to do it. 

     Social Security isn't going to do it, at least not routinely. Many decades ago the agency could do this but not today. The staffing isn't there. This means that Binder and Binder's clients won't be competently represented. Most people would argue that they never were but now there's no argument.

     This raises some questions in my mind:

• What kind of idiots are running Binder and Binder now? The company is still in business. They're still paying their employees. They're still paying rent on their offices. They're still paying for phone service. How can they continue to stay in business if they're not going to pay for medical records? It's basic to what they do. Getting medical records is not inexpensive but it's not that big a deal. It only runs to about 2% of my firm's total expenditures, far less than what my firm pays in salaries and rent.
• Charles Binder is listed as the attorney of record for most of the claimants that Binder and Binder represents. While the Binder and Binder that just went into Chapter 11 bankruptcy isn't a law firm, Charles Binder is definitely licensed to practice law. What are his ethical obligations as an attorney when he knows that he is incapable of providing them with competent representation? Doesn't he have an ethical obligation to withdraw from representing them or at least to warn them? If Binder and Binder is sending letters to Social Security saying that it can no longer pay for medical records, is it sending copies of this letter to its clients? Shouldn't Charles Binder insist that this letter be sent to his clients?
• What are Social Security's obligations in this situation? Should it warn Binder and Binder's clients? Is there anything more it can do? Could it contact the New York bar about the situation since that is where Charles Binder is licensed?