[Federal Register: January 13, 2005 (Volume 70, Number 9)]
[Notices]
[Page 2447-2450]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ja05-108]
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SOCIAL SECURITY ADMINISTRATION
Demonstration Project for Direct Payment to Non-Attorney
Representatives
AGENCY: Social Security Administration (SSA).
ACTION: Notice.
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SUMMARY: Section 303 of the Social Security Protection Act of 2004
(SSPA), Public Law No. 108-203, requires the Commissioner of Social
Security (the Commissioner) to develop and implement a five-year
nationwide demonstration project that will extend to certain non-
attorney representatives of claimants under titles II and XVI of the
Social Security Act (the Act) the option to have approved
representatives' fees withheld and paid directly from a beneficiary's
past-due benefits. Currently, this option is available only to
representatives who are attorneys. Non-attorney
[[Page 2448]]
representatives who wish to participate in the demonstration project
must meet the prerequisites specified in section 303 of the SSPA, and
any additional prerequisites that the Commissioner may prescribe. The
purpose of this notice is to provide information about the
prerequisites that non-attorney representatives will be required to
satisfy and about our plans for administering the prerequisites
process. We will post further details about the prerequisites process
(e.g., when and how to apply) on our Web site at http://www.socialsecurity.gov
when they become available.
FOR FURTHER INFORMATION CONTACT: Joanne Butler, Social Security
Administration, Office of Hearings and Appeals, Suite 1608, 5107
Leesburg Pike, Falls Church, VA 22041-3255, (703) 605-8314.
SUPPLEMENTARY INFORMATION: Section 303 of the SSPA sets forth certain
minimum prerequisites that non-attorney representatives must satisfy to
be eligible to participate in the demonstration project on direct
payment of fees to non-attorneys, and allows the Commissioner to
establish additional prerequisites that must be satisfied. Section 303
also provides that the Commissioner may assess representatives
reasonable fees to cover our costs in administering the prerequisites
process.
In this notice, we provide certain details of the application
process and announce that satisfaction of a representational experience
requirement will be an additional prerequisite for participating in the
demonstration project. The notice also advises the public of the amount
of the fee that applicants will be assessed. In addition, we provide
details concerning the specific criteria that we will use to evaluate
whether the applicant has satisfied the following prerequisites:
Qualifications equivalent to a bachelor's degree;
Experience in representing claimants before SSA;
Liability insurance or equivalent insurance adequate to
protect claimants in the event of malpractice by the representative;
Criminal background check that ensures a representative's
fitness to practice before the Commissioner; and
Examination testing knowledge of the relevant provisions
of the Act and the most recent developments in Agency and court
decisions affecting titles II and XVI of the Act.
We anticipate that we will use a commercial contractor to assist us
in determining eligibility to participate in the demonstration project.
A competitive process for selecting a contractor is underway. We will
provide updated information regarding the contract award, and further
information about the prerequisites process (e.g., when and how to
apply) at our Web site at http://www.socialsecurity.gov.
The SSPA also requires non-attorney representatives to take
continuing education classes, including courses in ethics and
professional conduct. This requirement will pertain to those non-
attorney representatives who have been found eligible to participate in
the demonstration project. The SSPA gives us the authority to determine
the minimum amount of continuing education required, and the standards
for the classes. We intend to issue a subsequent Federal Register
notice to address this requirement.
1. Application periods and completion of an application: We intend
to structure the contract for administering the prerequisites process
for the five-year demonstration project with an initial year and four
option years. There will be two application periods during the initial
year, with the second examination to take place four months after the
first examination. During the four option years, there will be one
application period and examination per option year. A non-attorney
representative who is found not to be eligible to participate during
one application period will be able to re-apply during any subsequent
application period.
A person applying to participate in the demonstration project will
have to complete an application form. We intend to have the form
available online at the contractor's Web site for applicants to print
out, sign (in ink), and submit. Within four weeks of the opening of the
application period, the applicant must submit a complete application
package. A complete application package consists of the completed
application form and:
Receipt from the applicant's insurance company for
professional liability coverage or equivalent insurance in the minimum
amount and type specified by us (see below);
Official college and/or university transcript(s) showing
the stamp or raised seal of the institution, or otherwise establishing
that it is an official copy;
Official high school transcript or GED certificate or an
equivalent graduation record from an official source (e.g., board of
education), if the applicant has not attended a college or university,
Names and the last four digits of the Social Security
numbers of five claimants for whom the applicant has provided
representational services and the dates of such services (see section
4. below for details); and
Fee payment of $1000 (see below).
Persons who fail to have their completed package materials
postmarked by the application deadline will have their applications
rejected. However, they may re-apply to participate in the
demonstration project during a subsequent application period.
2. Application fee: SSPA section 303(c)(1) provides that the
Commissioner may assess applicants a reasonable fee to cover the costs
of administering the prerequisites process. We have determined that:
The fee will be $1000 (in U.S. dollars) per applicant;
Applicants must include the fee payment with their
application package;
The fee will be non-refundable except in the following
circumstance: If the contractor fails to administer an examination and
the failure is due to the contractor's fault, the contractor will be
required, as a performance penalty, to refund the fee to those affected
applicants who do not take the rescheduled examination;
Acceptable forms of fee payment will be by certified
check, money order, a check drawn from a private firm's account, or
credit card;
Applicants will pay their fees to the contractor; and
Applicants who are not found to be eligible may reapply
during the next application phase, but they will pay the full fee upon
reapplying.
3. Education and equivalent qualifications: SSPA section 303(b)(1)
establishes a bachelor's degree from an accredited institution of
higher education as a prerequisite for participating in the
demonstration project. However, this section also permits applicants
who do not have a bachelor's degree to satisfy this prerequisite based
on combinations of training and work experience that the Commissioner
determines to be equivalent to a bachelor's degree. We have determined
that any of the following combinations of education and experience
shall be equivalent to having a bachelor's degree:
If the applicant does not have a bachelor's degree, but
has three years or more of undergraduate study at an accredited
institution of higher learning, the applicant must have at least one
year of relevant professional experience (as defined below), at least
six months of which must have involved claims for
[[Page 2449]]
benefits under title II or title XVI of the Act;
If the applicant has at least two, but less than three
years of undergraduate study at an accredited institution of higher
learning, the applicant must have at least two years of relevant
professional experience, at least one year of which must have involved
claims for benefits under title II or title XVI of the Act;
If the applicant has at least one, but less than two years
of undergraduate study at an accredited institution of higher learning,
the applicant must have at least three years of relevant professional
experience, at least two years of which must have involved claims for
benefits under title II or XVI of the Act; or
If the applicant has less than one year of undergraduate
study at an accredited institution of higher learning, or no
undergraduate education, the applicant must have received a high school
diploma or GED certificate and have at least four years of relevant
professional experience, at least two years of which must have involved
claims for benefits under title II or title XVI of the Act.
Relevant professional experience (for purposes of establishing
qualifications equivalent to a bachelor's degree) is work through which
the applicant has demonstrated familiarity with medical reports and an
ability to describe and assess mental and/or physical limitations. Such
experience may be from the fields of: Teaching, counseling or guidance,
social work, personnel management, public employment service, and/or
nursing or other health care professional services. Any work involving
claims for benefits under title II or title XVI of the Act shall also
be defined as relevant professional experience. We intend to have the
contractor post on its Web site additional information regarding
qualifying professional experience.
An applicant who fails to submit proof of a bachelor's degree or
equivalent qualifications before the application period closes shall be
precluded from establishing, based on his or her current application,
eligibility to take the examination and to participate in the
demonstration project. However, the applicant may re-apply to
participate in the demonstration project during a subsequent
application period.
An applicant may possess a law degree (e.g., juris doctor);
however, attorneys who already qualify to have their approved
representatives' fees paid directly from their clients' past-due
benefits pursuant to sections 206 and 1631(d)(2) of the Act will be
ineligible to participate in this demonstration project. In addition,
attorneys who are suspended or disbarred by a State or Federal court or
disqualified from appearing before a Federal agency or program will be
ineligible to participate in this demonstration project.
4. Representational experience requirement: SSPA section 303(b)
permits the Commissioner to establish additional prerequisites. We have
determined that all participants in the demonstration project (with or
without a bachelor's degree) must have demonstrated experience in
representing claimants before SSA. Applicants must meet the following
minimum representational experience requirement:
The applicant must have provided representational services
as the appointed representative for five claimants within a 24-month
period;
The services may include representing the claimant at the
time at which SSA decided the case at any administrative level or, in
cases that have not yet been decided, appearing as the claimant's
representative at a hearing before an SSA Administrative Law Judge
(ALJ); and
The 24-month period must occur within the 60 months
preceding the month in which the application was filed.
The following is an example of how to calculate the 24- and 60-
month periods for establishing representational experience:
The applicant files his or her application in March 2005.
The 60-month period begins on March 1, 2000, and ends on
February 28, 2005 (the last day of the month before the filing of the
application).
The 24-month period can occur at any time between March 1,
2000, and February 28, 2005. For example, the applicant would meet the
requirement if he or she served as the appointed representative for
five separate claimants during the period from January 2001 through
December 2002.
Applicants are required to submit with their applications the names
and the last four digits of the Social Security numbers of five
claimants for whom the applicant provided representational services
during the appropriate 24-month period. Applicants also are required to
provide the dates of their service for each applicant (e.g., date of
the hearing before the SSA ALJ).
5. Insurance requirement: SSPA section 303(b)(3) sets forth a
requirement that non-attorney participants have professional liability
insurance, or equivalent insurance, which the Commissioner has
determined to be adequate to protect claimants in the event of
malpractice by the non-attorney representative. We have determined that
applicants must have professional liability insurance for coverage of
errors and omissions committed by the non-attorney representative, with
a minimum total annual amount of coverage of $1 million (for all
incidents in that year) plus coverage of $250,000 per incident. The
insurance policy must be underwritten by a firm that is licensed to
provide insurance in the State in which the non-attorney representative
conducts business. The policy also must provide coverage for
professional liability insurance claims made in those States in which
the non-attorney representative represents claimants before us.
An applicant who fails to submit proof of the required insurance
before the application period closes shall be precluded from
establishing, based on his or her current application, eligibility to
take the examination and to participate in the demonstration project.
However, the applicant may re-apply to participate in the demonstration
project during a subsequent application period.
Non-attorney representatives who establish eligibility to
participate in the demonstration project will be required to maintain
their insurance coverage in order to continue to receive direct fee
payments from SSA.
6. Criminal background investigation: SSPA section 303(b)(4) sets
forth a requirement for a criminal background check of each non-
attorney representative who applies to participate in the demonstration
project to ensure his or her fitness to practice before us. We will
reject any applicant who:
Has been suspended or disqualified from practice before
SSA;
Has had a judgment or lien assessed against him/her by a
civil court for malpractice and/or fraud;
Has had a felony conviction;
Engages in substantial misrepresentation in submitting his
or her application and/or supporting materials for the application;
Fails to pass an SSA administrative records check (check
of SSN, etc.); or
Fails to provide documentation as requested by SSA's
contractor to perform the criminal background investigation.
An applicant who fails the criminal background investigation will
have the opportunity to protest that finding to us. Our action in
response to the protest will be final and not subject to appeal.
7. Passing an examination: SSPA section 303(b)(2) requires that
[[Page 2450]]
applicants pass an examination testing their knowledge of the relevant
provisions of the Act and the most recent developments in Agency and
court decisions affecting titles II and XVI of the Act. With the
assistance of contractor personnel, we will develop a 40- to 50-
question, multiple choice examination. Examination details are as
follows:
A score of 70 will be a passing score;
The examination instrument will be written in the English
language only;
We anticipate that the examination will be administered by
the contractor and will be given only once, on a weekday, in
association with each application period;
During the examination, test-takers will have open-book
access to certain reference materials that we will supply (see below
for details);
The examination will be based upon situations that arise
from the subject areas contained in the reference materials; and
Applicants will not be permitted to remove the examination
instrument from the examination center.
Open-book reference materials: We will provide each test-taker with
a copy of 20 CFR Ch. III (most recent edition), and the Compilation of
the Social Security Laws, Volume 1 (most recent edition). We may
provide additional materials; if so, we will provide details about the
materials on the contractor's Web site. Applicants will not be
permitted to bring any other items (including reference materials) to
the examination center.
An applicant who fails to achieve a passing score may re-apply to
participate in the demonstration project during a subsequent
application period.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)
Dated: December 30, 2004.
Fritz Streckewald,
Assistant Deputy Commissioner for Program Policy for Disability and
Income Security Programs.
[FR Doc. 05-729 Filed 1-12-05; 8:45 am]
BILLING CODE 4191-02-P