RULES OF CONDCUT UT AND STANDARDS OF RESPONSIBILITY FOR APOINTED - PDF document

RULES OF CONDCUT UT AND STANDARDS OF RESPONSIBILITY FOR APOINTED REPRESENTATIVES DISABILITY LAW CENTER NOVEMBER 2018 What Rules May Apply ly ■ Social Security Act and Regulations – Representation of Parties (affirmative duties and prohibited actions) ■ Civil Monetary Penalties (CMPs) against individuals or entities for violations of the Social Security Act ■ Penalties for Fraud – Section 1632 Social Security Act ■ Sanctions under the Federal Rules of Evidence (e.g. Rule 11) ■ MA Rules of Professional Conduct (S.J.C. Rule 3:07) ■ Licensing Requirements for Non Attorney Representatives 2

SSA Rules on Represe sentation on of Partie ies 20 CFR Subpart R ■ Who may be a representative and what their qualifications must be – amended in 2018; ■ How you appoint a representative; ■ The payment of fees to a representative; ■ SSA rules that representatives must follow – amended in 2018; ■ Penalties for representatives and enforcement –amended in 2018. 3 Represe sentation on Rules – Scope ■ Cover Represen esentation onal Services es performed in connection with any claim before SSA (initial or reconsideration) and any decision or action by an ALJ or the AC. 20 CFR § 404.1703 ■ Represen esentative - an attorney who meets the requirements of § 404.1705(a), or a person other than an attorney who meets the requirements of § 404.1705(b), and appointed by a claimant. ■ Eligible non-a -attorn orney means a non-attorney representative who SSA determines is qualified to receive direct payment of their fee under § 404.1717(a). 4

SSA Changed ged Rules of Repres esen entation on- Effec ective August 1, 1, 2018 (83 FR 30849 49) ■ Initially proposed in 2016 - NPRM 81 FR 54520 (August 16, 2016) ■ Purpose: to clarify that certain actions are prohibited, provide “additional means to address representative actions that do not serve the best interests of claimants.” Address concerns about the “integrity of the programs.” 5 Who May Be a Represe sentative - Attorney 20 CFR 404.1705(a) ■ An attorney in good standing who has the right to practice law before a court of a State, Territory, District, or island possession of the U.S., or before the Supreme Court or a lower Federal court; ■ Is not disqualified or suspended from acting as a representative in dealings with SSA; ■ Is not prohibited by any law from acting as a representative. 6

WHO MAY BE A REPRESENTATIVE – Any person on 20 CFR 404.1705(b) ■ Capable of giving valuable help in connection with the claim; ■ Not disqualified or suspended from acting as a representative before SSA ■ Not prohibited by any law from acting as a representative ■ Is “generally known to have good character and reputation.” 7 New Disqualifyi lifying Condit itio ion For Non Atty Represe sentatives ■ Persons who have a final conviction of a felony or any crime involving moral turpitude, dishonesty, false statements, misrepresentation, deceit, or theft. Does not apply to convictions that have been overturned or “other similar situations.” ■ Regulations do not bar individuals with misdemeanor convictions, UNLESS the misdemeanor involved moral turpitude, dishonesty, false statements, misrepresentation, deceit of theft. ■ Those who may not serve as representatives may “still assist their family members with claims in an unofficial capacity.” 83 FR 30850 8

Appoint intme ment of Represe sentativ ive (no change ges) s) 20 CFR 404.1707 ■ Claimant must sign a written notice identifying representative. ■ Identified representative signs the notice, agreeing to be the representative, if the person is not an attorney. An attorney does not have to sign a notice of appointment. ■ The notice is filed at the FO if initially claim or reconsideration request was filed; with an administrative law judge if a hearing was requested; or with the Appeals Council if a review of the administrative law judge's decision was requested. 9 Author orit ity of a represe sentativ ive (no change ges) s) 20 CFR 404.1710 ■ Obtain information about a claim to the same extent that the claimant is able to do; ■ Submit evidence; ■ Make statements about facts and law; and ■ Make any request or give any notice about the proceedings before SSA. ■ A representative may NOT sign an application on behalf of a claimant for rights or benefits under title II of the Act unless authorized to do so under § 404.612. 10

Mandator ory Use of Electronic ic Services 20 CFR 404.1713 and 404.1740(b)(4) ■ A representative must conduct business with SSA electronically at the times and in the manner SSA prescribes on matters for which the representative requests direct fee payment. (Requirement is added to the list of affirmative duties under § 404.1740(b)(4)). 11 Not otice or Request st to a Represe sentativ ive (no change ges) s) 20 CFR 404.1715 SSA shall send an appointed representative— ■ (1) Notice and a copy of any administrative action, determination, or decision; and ■ (2) Requests for information or evidence. 12

Affirmativ ive Duties 13 Duty to Obtain in and Provide Infor orma mation on ■ Act with reasonable promptness to help obtain the information or evidence that the claimant must submit under the SSA regulations, and forward the information or evidence to SSA for consideration as soon as practicable (same language as before) ■ Assist the claimant in complying, as soon as practicable , with the SSA requests for information or evidence at any stage of the administrative decision making process in the claim (same language as before) 14

Duty to Provide Evidence to Support an Appli licatio ion/App Appeal ■ Medical source(s); ■ Age, education/training, and work experience ■ Activities both before and after the date of the alleged disability; ■ The claimant's efforts to work and any other factors showing how the claimant’s impairments affects their ability to work (404.1560-404.1569a vocational factors) – added in 2018 final rule 15 Duty of Competent Represe sentation ion ■ Provide competent representation to a claimant. Know of the significant issues in a claim, have reasonable and adequate knowledge of the applicable provisions of the Soc Sec Act, regulations, the SSRs, and any other applicable provisions of law. ■ Act with reasonable diligence and promptness in representing a claimant (prompt and responsive answers to the SSA requests for information). 16

Duty to Coordin inate Schedulin ling ■ When requested and in a manner SSA specifies , provide potential dates and times that the representative will be available for a hearing. ■ SSA comment: “We understand that schedules change, and we do not expect representatives to hold open their schedules for all of the dates and times they identify.” 83 FR 30850 17 Limited ed Option ons for Ending Repres resen entation on 20 CFR 404. 4.1740 40(b (b)(3 )(3)(i )(iv) v) ■ Only withdraw representation at a time and in a manner that does not disrupt the processing or adjudication of a claim and that provides the claimant adequate time to find new representation, if desired. ■ A repres resentat ative should ld NOT withdr draw after er SSA sets the time and place for the hearing UNLE LESS SS the repres resen entat ative can show ow that a withdra hdrawal al is necessar ary due to ex extra raor ordinary circumstances es , as SSA determ ermines es, on a case-b e-by-c -cas ase basis. ■ A hearing is scheduled when SSA sets a date and time and notifies all parties. 83 FR 30850 18

What are “extraor ordinary circu cums mstances ces” to justify fy withd hdrawal after a scheduled hearing? ■ Serious illness; ■ Death or serious illness in the representative’s immediate family; ■ Failure to locate a claimant despite active and diligent attempts to contact the claimant. 19 Duty to Provide Reaso sons Before Ending Represe sentation on ■ SSA is “not seeking privileged communications between an attorney and client. If the representative cannot describe why they must withdraw without revealing privileged or confidential communications (and if no exceptions to the attorney-client privilege exists, such as crime-fraud exception), the representative should state this fact, not disclose the privileged or confidential communication, and allow the ALJ to evaluate the request under these circumstances.” 83 FR 30850 20