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SOCIAL SECURITY ADMINISTRATION
Social Security Administration
CFR Citation: 20 CFR Parts 404, 408, 416, and 422
Docket ID: [Docket No. SSA-2007-0068]
RIN ID: RIN 0960-AG56
NOTICE: PROPOSED RULES
DOCUMENT ACTION: Notice of proposed rulemaking.
SUBJECT CATEGORY: Revisions to Rules on Representation of Parties
DATES: To make sure that your comments are considered, we must receive them no later than November 7, 2008.
DOCUMENT SUMMARY: We are proposing several revisions to our rules on representation of parties. These proposed rules would recognize entities as representatives, define the concept of a principal representative, and authorize principal representatives to sign and file a claim for benefits on behalf of a claimant. These proposed rules would also mandate the use of Form SSA1696 to appoint, revoke, or withdraw an appointment of a representative, and to waive a fee or direct payment of the fee. We propose to define the concept of a professional representative and require professional representatives to use our electronic services as they become available, including requiring professional representatives to submit certain requests for reconsideration or a hearing before an administrative law judge (ALJ) electronically. Finally, we propose to require representatives to keep paper copies of certain documents that we may require. We are proposing these revisions to reflect changes in representatives' business practices and to improve our efficiency by enhancing use of the Internet.
SUMMARY: Representation of Parties; Revisions to Rules,
SUPPLEMENTAL INFORMATION
Electronic Version The electronic file of this document is available on the date of
publication in the Federal Register at http://www.gpoaccess.gov/fr/ index.html.
Explanation of Changes
Background
We may issue rules and regulations to administer the provisions of the Act. 42 U.S.C. 405(a), 902(a)(5), 810(a), and 1383(d)(1). Specifically, we may issue regulations to recognize agents or other persons, other than attorneys, as representatives of individuals claiming benefits under the programs we administer. 42 U.S.C. 406(a)(1) and 1383(d)(2). We may also issue regulations to administer the Special Benefits for Certain World War II Veterans program, 42 U.S.C. 1010, and we have extended the rules by which we appoint and discipline representatives for claims under that program except where to do so would be impractical or contrary to the Act. 20 CFR 408.1101. Pursuant to the cited authority, we propose to revise our current regulations on Representation of Parties found in part 404 subparts G, J, and R, part 408 subpart K, part 416 subparts C, N, and O, and part 422 subparts C and F.
Recognizing Entities as Representatives
Individuals who want to obtain benefits from us may want someone to help them through the application process. Frequently, such claimants formally appoint a representative to act on their behalf and help guide their claim. A representative may, on behalf of a claimant, obtain and submit information and evidence about the claim, make statements about facts and law, and make requests or give notices about the claim to us. In return, the representative may receive a fee for their services from a portion of the claimant's pastdue benefits.
Currently, we recognize attorneys or other ``persons'' as
representatives of individuals who claim benefits under title II or
title XVI of the Act. 42 U.S.C. 406(a)(1) and 1383(d)(1). Although the
term ``person'' is defined broadly in the Act to include partnerships,
corporations, and associations, we have previously chosen to recognize
only individuals as representatives of claimants. In the decades since
we adopted that policy, the business practices of those who represent
claimants have changed significantly. Many representatives now practice
in group settings and provide their services collectively to claimants. In addition, many claimants may prefer to hire a
[[Page 51964]]
firm rather than a single individual within the firm. Recognizing
entities as representatives will make it easier for individuals to
obtain the representation they want. We believe it is appropriate for
us to propose to amend our rules to more accurately reflect the changes in the way representatives conduct their businesses.
Under our current process, we require the filing of a new Form SSA 1696, Appointment of Representative, to appoint each individual associated with an entity who represents a claimant before us. By recognizing entities as representatives, we will give claimants better flexibility to pursue their claims by not requiring the filing of a new Form SSA1696 for each entity employee who represents a claimant during the claims process. This proposal will allow entities who represent claimants to alternate employees to represent a claimant based on availability and workload. However, an entity will be bound by the signatures and actions of its employees during their association with the entity, regardless of whether that association ends at a later date. If the claimant appoints an entity as his or her representative, the entity employee who signs the Form SSA1696 on behalf of the entity will be considered the contact person for the entity for the purpose of receiving notices and information from us until or unless the entity updates its contact person information.
The proposed change also will allow us to properly pay entities for the representational services they provide to claimants, if certain conditions are met. It also makes our reporting to the Internal Revenue Service (IRS) and the issuance of Form IRS 1099MISC to entities more efficient. We propose to permit ``direct payment'' of fees to entities if the employees who perform representational services on their behalf meet our requirements for direct payment. 42 U.S.C. 406 and the Social Security Protection Act of 2004 (SSPA), Public Law 108203, section 301.
We propose to include these rules in Sec. Sec. 404.1703, 404.1710,
404.1712, 404.1715, 404.1720, 404.1730, 404.1732, 416.1503, 416.1510,
416.1512, 416.1515, 416.1520, 416.1530, and 416.1732. We also propose to make conforming changes to other sections.
Multiple Representatives and the Role of a Principal Representative
We propose new rules explaining our current policy that a claimant
may appoint multiple representatives to represent him or her at the
same time. A claimant may appoint one or more individuals or entities to work on his or her claim at the same time. A principal
representative is responsible for disseminating information and requests from us to a claimant and the claimant's other
representatives, if any. It is our current practice to require a
claimant to appoint a principal representative only if the claimant
appoints more than one representative. We now propose to require that a
claimant choose and appoint a principal representative. If a claimant
appoints only one representative, that individual or entity is the principal representative.
If a principal representative's authority ends for any reason, and the claimant continues to be represented by only one appointed representative, we will consider that appointed representative to be the claimant's principal representative until the claimant files a new Form SSA1696 with us designating another principal representative. If a principal representative's authority ends for any reason, and the claimant continues to be represented by multiple representatives, we will name one of the appointed representatives as the principal representative. The claimant may change the principal representative by filing a new Form SSA1696.
We also propose to allow principal representatives to sign and file applications on behalf of claimants, provided the claimant has opportunity to review and verify the accuracy of the completed application. We expect this change to expedite the claims filing process, simplify the application process for some claimants, and afford the principal representative the opportunity to better serve the client. However, a claimant will have to expressly acknowledge on the Form SSA1696 that he or she is responsible for the information provided to the principal representative for the application. We believe that this type of acknowledgement is necessary to ensure that the claimant remains responsible for the content of the application.
We will send to a claimant and his or her representatives notices
relating to the appointment of a principal representative and other representatives, the revocation of the appointment of any
representative, and the withdrawal of any representative. We will also
send notices regarding the release of a claimant's pastdue benefits to
any representative who fails to file a request for approval of a fee.
Through these changes, we believe that we will better accommodate the needs of claimants and their representatives, that claimants' representatives will be better able to serve their clients, and that we will process fee payments more efficiently.
We propose to include these rules in Sec. Sec. 404.612, 404.1700, 404.1703, 404.1705, 404.1707, 404.1710, 404.1715, 408.1101, 416.315, 416.1500, 416.1503, 416.1505, 416.1507, 416.1510, and 416.1515. The Role of a Professional Representative
We propose to introduce the concept of a professional representative and to distinguish it from a principal representative. A professional representative includes any attorney, any individual other than an attorney, or any entity that holds itself out to the public as providing representational services before us (see Sec. Sec. 404.1735 and 416.1535), regardless of whether the representative charges or collects a fee for providing the representational services.
We also propose to require that professional representatives conduct business with us electronically at the times and in the manner that we prescribe. For example, we intend to require a professional representative to use electronic media that we prescribe, such as the Internet, to register with us and to file certain requests for reconsideration and hearings before an ALJ. We are continuing to improve access for claimants, representatives, and the general public to forms and information about our programs by automating more of our business processes. When we have completed the automation of a specific business process that we intend to require, such as the use of Form SSA1696, Appointment of Representative, we will announce in the Federal Register that the process has been automated and will be required.
If a professional representative cannot access our system because the representative's system is not functioning, our system is not functioning, the electronic media is not available, or because the representative's system cannot communicate with our system, we will waive the requirement that the professional representative use the electronic media that we prescribe. If the error is related to the representative's system rather than our system, we will require some type of documentation explaining why the representative is requesting the waiver.
We are particularly interested in receiving public comment on our
definition of ``professional representative.'' While we believe that
the proposed definition covers the vast majority of representatives who do
[[Page 51965]]
business with us, we are interested in receiving public comment on
whether our proposed definition adequately includes all relevant organizations.
We propose to include these rules in Sec. Sec. 404.910, 404.934, 404.1703, 404.1707, 404.1713, 416.1410, 416.1434, 416.1503, 416.1507, and 416.1513.
Access Registration
We propose to require professional representatives and their employees to complete an initial access registration with us through the use of electronic media that we prescribe. Representatives who are not classified as professional representatives and their employees will also be required to complete an initial access registration with us, but will be permitted to do so either electronically or by other means. Access registration requires representatives and their employees to supply us with certain personal, professional, and business affiliation information that we will use to authenticate and authorize representatives and their employees to do business with us. This initial registration will also require professional representatives and their employees to provide us with specific attestations to ensure that they know, understand, and will comply with our rules and regulations. Access registration is a onetime process, and it will allow us to process each claim more efficiently. However, representatives and their employees must update the access registration if their personal, professional, or business affiliation information changes. The authorization and authentication process will also assist us in safeguarding the personally identifiable information provided to us.
We propose to include these rules in Sec. Sec. 404.1703, 404.1705, 404.1713, 416.1503, 416.1505, and 416.1513.
Direct Payment Registration
We pay representatives' fees out of a portion of the pastdue benefits for claims under title II of the Act. Under provisions of the SSPA, we also are authorized to withhold and pay fees approved for attorneys in title XVI cases, and to withhold and pay fees approved for certain nonattorney representatives in cases under title II and title XVI of the Act.
On October 2, 2006, we published a notice in the Federal Register that advised both attorneys and eligible nonattorney representatives of additional requirements that a representative must meet in order for us to pay some or all of an approved fee directly to the representative from a claimant's pastdue benefits. 71 FR 58043. That notice explained the registration process that a representative must complete in order to receive direct fee payment in a specific claim. We now propose to pay all representative fees via electronic funds transfer. This proposal will allow us to make direct payment of the representative's fee more efficiently, to more accurately report payments to the IRS, and to issue IRS Form 1099MISC more quickly.
To ensure that we only make direct payments for work done by attorneys and eligible nonattorneys, there are certain actions that must be taken before an entity may receive direct payment of fees. Any entity seeking direct payment of fees must maintain, and provide to us upon our request, a signed statement from each of the entity's attorneys and eligible nonattorneys who represent claimants before us. The statement must state that the attorney or eligible nonattorney is performing representational services on behalf of the entity. The statement must also assert that any fees should be paid directly to the entity and that the representatives receive any compensation directly from the entity. Any request for direct payment of fees made by an entity must include an attestation that the entity is in possession of this signed statement from each attorney or eligible nonattorney who has performed any representational services for the claim in question. Additionally, the entity must attest that all individuals who have performed representational services on the claim in question are individuals who qualify for direct payment under the Act or the SSPA. Such services include, but are not limited to, representing the claimant at any hearing or proceeding before the Agency or before a Federal court.
We also propose to modify our current rules to clarify that we may issue IRS Form 1099MISC to both individuals and entities for payments over the annual aggregate of $600. We will gather additional information during the registration process to simplify our compliance with the applicable Internal Revenue Service's regulation, 26 CFR 1.60455.
We propose to include these changes in Sec. Sec. 404.1703, 404.1713, 404.1730, 416.1503, 416.1513, and 416.1530.
New Requirements to Use Form SSA1696 to Appoint or Revoke the
Appointment of a Representative and to Waive a Fee, Direct Payment of a Fee, or Both
We propose to require that a claimant use Form SSA1696 to appoint or revoke the appointment of a representative. Similarly, we propose to require that a representative use Form SSA1696 when the representative withdraws from representing a claimant. Currently, when a claimant appoints a representative using Form SSA1696, we require only non attorney representatives to sign the Form SSA1696. However, we are moving toward an electronic process that will require the ``electronic signature'' of professional representatives, including attorneys, on the Form SSA1696. To make the paper process as consistent as possible with the electronic process we envision, we propose to require both the signature of the claimant and the signature of any representative, including an attorney representative, on the paper Form SSA1696 for the appointment of a representative. Making this change now will permit a seamless transition to the electronic process in the future.
We also propose to require a representative to use the Form SSA 1696 to waive a fee for representing the claimant before us, to waive direct payment of the fee, or both. By standardizing the transaction for these situations to one commonlyused form, we will simplify the process for our claimants and their representatives, and we will be able to manage the appointment, fee authorization, and fee payment processes more efficiently. We also propose to clarify our policies about when a claimant's appointment of a representative begins and ends.
We propose to include these rules in Sec. Sec. 404.1707, 404.1712, 404.1732, 416.1507, 416.1512, and 416.1532.
Internet Appeals
We propose to require professional representatives to submit certain requests for administrative appeal electronically at the times and in the manner that we prescribe, e.g., through the Internet. Claimants who are unrepresented or who are represented by individuals who are not classified as professional representatives may continue to file certain requests for reconsideration or an ALJ hearing by submitting either paper forms at one of our offices or using the electronic media we prescribe. We currently are making our Internet Appeals Web portal available for this purpose. That Web portal, which is now being voluntarily used by representatives to file requests for reconsideration and ALJ hearings, can be found at https:// secure.ssa.gov/apps6z/iAppeals/ap001.jsp.
By requiring professional representatives to file certain requests
for appeal with us electronically, we are following precedent set in the Federal court system. According to the Federal
[[Page 51966]]
judiciary's Case Management and Electronic Case Files System, as of
February 2008, electronic filing systems are in use in 99% of Federal
courts, over 31 million cases are maintained on these systems, and more
than 320,000 users have filed documents over the Internet. Requiring professional representatives to file certain requests for
reconsideration or an ALJ hearing via the Internet is a costeffective
measure that we expect will increase our efficiency and help reduce the disability determination backlog.
We do not expect this requirement to impose a burden on professional representatives. Representatives currently use several of our online services extensively, including the online Disability Report and the Electronic Records Express (ERE) system, which allows representatives to submit evidence to the electronic folder. We implemented the Internet Appeals software application in December 2007, and, to date, representatives have filed almost 100,000 appeals electronically. We may expand this electronic process to include appeals to the Appeals Council at a later time.
We propose to include these rules in Sec. Sec. 404.901, 404.909, 404.910, 404.933, 404.934, 404.1740, 416.1401, 416.1409, 416.1410, 416.1433, 416.1434, and 416.1540.
New Affirmative Duties for Representatives
We propose to add a new affirmative duty for professional representatives and individuals working on their behalf to provide us with specific attestations to ensure they know, understand, and will comply with our rules and regulations. As indicated above, these attestations will be provided during the access registration process. We also propose to add a new affirmative duty for professional representatives, and for nonprofessional representatives who choose to file the Appointment of Representative form electronically. These representatives must keep, and provide to us upon request, paper copies of the Form SSA1696 with the original signature of the claimant, the electronic signature of the representative, and the respective dates of the signing. Further, we will require entities to maintain, and provide to us on request, a signed statement from each attorney, eligible non attorney, and employee. In the statement, they must aver that they are performing all representational services on behalf of the entity, that any fees should be paid directly to the entity, and that they will receive compensation directly from the entity.
We also propose to place an affirmative duty on professional representatives to file certain requests for reconsideration or an ALJ hearing using the electronic media that we prescribe. However, if a representative disregards or violates our rules or regulations, we will not penalize the claimant. We will not reject or delay a claimant's request for appeal or process it differently than a request for appeal submitted correctly.
Violation of these affirmative duties may subject the
representative to sanctions under 20 CFR 404.1745 and 416.1545. We may
ask representatives to provide us with forms, documents, copies of signed statements, and other information to confirm that
representatives are complying with our rules. We expect that these
changes will create safeguards against fraudulent activity.
Consistent with our proposal to recognize entities as representatives and our recognition that the business practices of those who represent claimants have changed significantly, we propose to clarify that an attorney or a nonattorney whom a claimant has not appointed as his representative but who works for or on behalf of the claimant's appointed representative and helps represent the claimant in his claim before us will also be subject to our rules of conduct and standards of responsibility and our sanctions procedures in 20 CFR 404.1740404.1799 and 416.1540416.1599.
We propose to add these rules in Sec. Sec. 404.1703, 404.1740, 416.1503, and 416.1540.
New Prohibited Actions for Representatives
We propose to revise our list of prohibited actions to include three additional items: refusing to comply with any of our regulations, violating any section of the Act for which a criminal or civil monetary penalty is prescribed, and assisting another individual whom we have suspended or disqualified. Violation of these prohibited actions may subject the representative, or an attorney or a nonattorney whom a claimant has not appointed as his representative but who works for or on behalf of the claimant's appointed representative and helps represent the claimant in his claim before us, to sanctions under Sec. Sec. 404.1745 and 416.1545. We propose to add these rules in Sec. Sec. 404.1740 and 416.1540.
Other Changes
We propose several additional changes. First, we propose to clarify that we may reject a claimant's appointment of a representative if the representative does not meet our requirements and that we will notify the claimant and the claimant's representative of our decision. Sec. Sec. 404.903, 404.1705, 416.1403, and 416.1505. Our refusal to accept an appointment of a representative is not an administrative action subject to our administrative review process.
Second, we propose to add several new definitions, revise existing definitions, and to move existing definitions from Sec. Sec. 404.1770 and 416.1570 to Sec. Sec. 404.1703 and 416.1503. These definitions include the terms: ``disqualify,'' ``electronic media,'' ``Federal agency,'' ``Federal program,'' ``fee petition,'' ``person,'' ``principal representative,'' ``professional representative,'' and ``representative.'' We also propose to add a new definition for ``initial disability claim'' to Sec. Sec. 404.901 and 416.1401.
Third, we propose in several sections to change references from the Deputy Commissioner for Disability and Income Security Programs to the General Counsel and references from the Associate Commissioner for Hearings and Appeals to the Deputy Commissioner for Disability Adjudication and Review to reflect a recent reorganization and a new delegation of authority. Finally, we propose to make other minor conforming changes.
Clarity of These Rules
Executive Order 12866, as amended, requires each agency to write
all rules in plain language. In addition to your substantive comments
on these proposed rules, we invite your comments on how to make them easier to understand.
For example:
When Will We Start To Use These Rules?
We will not use these rules until we evaluate the public comments we
[[Page 51967]]
receive on them, determine whether they should be issued as final
rules, and issue final rules in the Federal Register. If we publish
final rules, we will explain in the preamble how we will apply them,
and summarize and respond to the public comments. Until the effective
date of any final rules, we will continue to use our current rules. Regulatory Procedures
Executive Order 12866, as Amended
We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Therefore, they were reviewed by OMB.
Regulatory Flexibility Act
We certify that these proposed rules will not have a significant economic impact on a substantial number of small entities. Although these proposed rules would require small entities to provide us with certain information and to use available electronic services in certain instances, small entities would not be disadvantaged or limited in their ability to compete with larger competitors. Additionally, these proposed rules do not place significant costs on small entities. It is anticipated that small entities that take advantage of our electronic service delivery may find slight cost savings as a result of increased efficiency. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act
These regulations, which propose several revisions to our rules on
Representation of Parties, contain reporting requirements in the
regulation sections listed below. For some sections, we previously
accounted for the public reporting burdens in the Information
Collection Requests for the various forms the public uses to submit the
information to SSA. Consequently, in those cases we inserted a 1hour
placeholder burden to these sections. For those sections whose public
reporting burdens are not covered by an existing OMBapproved form, we provided burden estimates.
Average
Number of Frequency of burden per Estimated annual burden
Regulation sections and description respondents response response (hours)
(minutes)
404.612; 404.1710; 416.315; 1 (placeholder). 416.1510Principal representatives
may sign and file applications with
SSA on beneficiaries' behalf.
404.909; 404.910; 404.1740; 1 (placeholder). 416.1409; 416.1410; 416.1540
Disability claimants who wish to
request a reconsideration must do
so in writing within 60 days after
notice of initial determination is
received (unless SSA grants a time
extension). Parties filing on their
own behalf or using non
professional representatives may
use SSA's Internet Web site to
submit the request; professional
representatives are required to do
so.
404.933; 404.934; 416.1433; 1 (placeholder). 416.1434Disability claimants who
wish to request a hearing before an
administrative law judge must do so
in writing within 60 days after
notice of the previous
determination/decision is received
(unless SSA grants a time
extension). Parties filing on their
own behalf or using non
professional representatives may
use SSA's Internet Web site to
submit the request; professional
representatives are required to do
so.
404.1740; 416.1540Professional 1 (placeholder). representatives for disability
claimants must always use an SSA
approved form on SSA's Internet
site to request a reconsideration
or a hearing before an
administrative law judge.
404.1705; 404.1707; 404.1712; 1 (placeholder). 416.1505; 416.1507; 416.1512;
408.1101Procedures for
beneficiary to appoint, change,
revoke, or reappoint a
representative and for
representatives to accept
appointment as representative or
withdraw as representative.
404.1705; 404.1713; 404.1730; 1 (placeholder). 416.1505; 416.1530; 416.1513
Representative must register with
SSA to receive payment.
404.1712; 404.1720; 404.1725; 1 (placeholder). 404.1730; 416.1512; 416.1520;
416.1525; 416.1530Procedures for
representative to sign fee
petition; and Representative must
file a request with us to charge or
receive a fee; and to obtain
approval of a fee representative
must file a written request with
SSA.
404.1715; 416.1515Principal 56,000 5 2 9,333. representatives are responsible for
informing other representatives of
the beneficiary about any
information SSA sent to the
principal representative.
404.1728; 416.1528If 1 (placeholder). representatives provide services to
beneficiaries in connection with a
hearing/court proceeding before SSA
and wants to charge for those
services, they must file a request
and provide necessary documentation.
404.1732; 415,1532Representatives 1 (placeholder). may waive the right to charge and
collect a fee, direct payment, or
both.
404.1740; 416.1540Procedures 1 (placeholder). requiring representatives to
maintain hard copy of certain forms
with signatures and dates of
signing.
404.1755; 416.1555If SSA files (\1\) charges against a representative,
the representative may contest
these charges.
404.1780; 416.1580If a party files (\1\) a brief or other written statement
with the Appeals Council, the party
should send a copy to the opposite
party and certify that they did so.
404.1799; 416.1599Representatives (\1\) who were suspended or disqualified
should submit any evidence they
want the Appeals Council to
consider along with their request
to be reinstated as a
representative.
[[Page 51968]]
422.515When SSA references 1 (placeholder). ``forms'' for withdrawal,
reconsideration, other appeals, and
appointment of representatives,
this refers to traditional printed
forms, computer screens completed
by SSA employees, or electronically
submitted forms.
\1\ Less than 10 respondents.
SSA submitted an Information Collection Request to OMB for clearance. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. If you would like to submit comments, please send them to the following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax Number: 2023956974, Email address: OIRA_Submission@omb.eop.gov
Social Security Administration, Attn: Reports Clearance Officer, 1333 Annex Building, 6401 Security Blvd., Baltimore, MD 21235, Fax: 4109656400, Email address: OPLM.RCO@ssa.gov.
You can submit comments on the paperwork burdens associated with
this rule for up to 60 days after publication of this notice; however,
they will be most useful if you send them to SSA within 30 days of
publication. This does not affect the deadline for the public to
comment to SSA on the proposed regulations. To receive a copy of the
OMB clearance package, contact the SSA Reports Clearance Office using
any of the above contact methods. We prefer to receive comments by e mail or fax.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
SecurityDisability Insurance; 96.002, Social SecurityRetirement
Insurance; 96.004, Social SecuritySurvivors Insurance; 96.006,
Supplemental Security Income; and 96.020, Special Benefits for Certain World War II Veterans)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits, OldAge, Survivors, and Disability Insurance, Penalties, Reporting and recordkeeping requirements, Social Security.
20 CFR Part 408
Administrative practice and procedure, Aged, Reporting and recordkeeping requirements, Social Security, Supplemental Security Income (SSI), Veterans.
20 CFR Part 416
Administrative practice and procedure, Penalties, Reporting and recordkeeping requirements, Supplemental Security Income (SSI). 20 CFR Part 422
Administrative practice and procedure, Organization and functions (Government agencies), Social Security.
Dated: August 27, 2008.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend 20 CFR parts 404, 408, 416, and 422 as set forth below:
PART 404FEDERAL OLDAGE, SURVIVORS AND DISABILITY INSURANCE (1950)
Subpart G[Amended]
1. The authority citation for subpart G of part 404 continues to read as follows:
Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a), 216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act (42 U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2), 423(b), 428(a), and 902(a)(5)).
2. Amend Sec. 404.612 by adding paragraph (h) to read as follows: Sec. 404.612 Who may sign an application.
* * * * *
(h) Your principal representative (see Sec. Sec. 404.1705 and
404.1707) may sign and file your application with us. If a principal
representative signs an application on your behalf, you are responsible for the accuracy of the information you provide.
Subpart J[Amended]
3. The authority citation for subpart J of Part 404 continues to read as follows:
Authority: Secs. 201(j), 204(f), 205(a), (b), (d)(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a), (b), (d)(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)(e), and 15, Pub. L. 98460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108203, 118 Stat. 509 (42 U.S.C. 902 note).
4. Amend Sec. 404.901 by adding a definition in alphabetical order to read as follows:
Sec. 404.901 Definitions.
* * * * *
Initial disability claim means:
(1) An application for benefits that is based on whether you are disabled under title II of the Act, or
(2) An application for supplemental security income payments that
is based on whether you are disabled or blind under title XVI of the Act.
(3) For purposes of this subpart, the term ``initial disability
claim'' does not include a continuing disability review or an age18 redetermination.
* * * * *
5. Amend Sec. 404.903 by revising paragraph (g) to read as follows:
Sec. 404.903 Administrative actions that are not initial determinations.
* * * * *
(g) Refusing to recognize, disqualifying, or suspending a person,
as defined in Sec. 404.1703, from acting as your representative in a
proceeding before us (see Sec. Sec. 404.1705 and 404.1745); * * * * *
6. Amend Sec. 404.909 by revising the section heading and
paragraphs (a) introductory text and (a)(2), and by removing the heading of paragraph (b), to read as follows:
Sec. 404.909 How to request reconsideration in claims other than
those that involve a denial of an initial disability claim based on medical factors.
(a) We will reconsider an initial determination, other than one
that involves a denial of your initial disability claim based on
medical factors (see Sec. 404.910), if you or any other party to the reconsideration files a written request
* * * * *
(2) At one of our offices, the Veterans Administration Regional
Office in the Philippines, or an office of the Railroad Retirement
Board if you have 10 or more years of service in the railroad industry, [[Page 51969]]
or at least five years of railroad service accruing after December 31, 1995.
* * * * *
7. Add a new Sec. 404.910 to read as follows:
Sec. 404.910 How to request reconsideration in an initial disability claim that is denied based on medical factors.
(a) If you file an initial disability claim, we will reconsider an
initial determination that denies your claim based on medical factors
if you or any other party to the reconsideration files a written
request within 60 days after the date you receive notice of the initial
determination and you make your request in accordance with paragraphs
(b) or (c) (or within the extended time period if we extend the time as provided in paragraph (d)) of this section.
(b) If you have not appointed a representative, or if your
representative is not a professional representative, as defined in
Sec. 404.1703, you may file your written request for reconsideration
either through the electronic media we prescribe, at one of our
offices, at the Veterans Administration Regional Office in the
Philippines, or at an office of the Railroad Retirement Board if you
have 10 or more years of service in the railroad industry, or at least
five years of railroad service accruing after December 31, 1995.
(c) If your representative is a professional representative, as
defined in Sec. 404.1703, your professional representative must file
your written request for reconsideration with us through the electronic media that we prescribe, unless we waive this requirement.
(d) If you want a reconsideration of the initial determination that
denies your initial disability claim based on medical factors, but do
not request one in time, you may ask us for more time to request a
reconsideration. Your request for an extension of time must be in
writing and must give the reasons why the request for reconsideration
was not filed within the stated time period. If you show us that you
had good cause for missing the deadline, we will extend the time
period. To determine whether good cause exists, we use the standards
explained in Sec. 404.911. You must file the request for an extension
of time according to the procedures in paragraphs (b) or (c) of this section.
8. Amend Sec. 404.933 by revising the section heading and
paragraphs (a) introductory text and (b)(2) to read as follows:
Sec. 404.933 How to request a hearing before an administrative law
judge in claims other than those that involve a denial of an initial disability claim based on medical factors.
(a) Written request. You may request a hearing on your claim, other
than one that involves a denial of your initial disability claim based
on medical factors (see Sec. 404.934), by filing a written request. You should include in your request
* * * * *
(b) * * *
(2) At one of our offices, at the Veterans Administration Regional
Office in the Philippines, or at an office of the Railroad Retirement
Board if you have 10 or more years of service in the railroad industry,
or at least five years of railroad service accruing after December 31, 1995.
* * * * *
9. Add a new Sec. 404.934 to read as follows:
Sec. 404.934 How to request a hearing before an administrative law
judge in an initial disability claim that is denied based on medical factors.
(a) If we deny your reconsidered initial disability claim based on
medical factors, you may request a hearing by filing a written request. You should include in your request
(1) The name and social security number of the wage earner;
(2) The reasons you disagree with the previous determination or decision;
(3) A statement of additional evidence to be submitted and the date you will submit it; and
(4) The name and address of any designated representative.
(b) Your request for a hearing must be filed within 60 days after
the date you receive notice of the previous determination or decision
(or within the extended time period if we extend the time as provided in paragraph (e) of this section).
(c) If you have not appointed a representative, or if your
representative is not a professional representative, as defined in
Sec. 404.1703, you may file your written request for a hearing either
through the electronic media we prescribe, at one of our offices, at
the Veterans Administration Regional Office in the Philippines, or at
an office of the Railroad Retirement Board if you have 10 or more years
of service in the railroad industry, or at least five years of railroad service accruing after December 31, 1995.
(d) If your representative is a professional representative, as
defined in Sec. 404.1703, your professional representative must file
your written request for a hearing with us through the electronic media that we prescribe, unless we waive this requirement.
(e) If you have a right to a hearing with respect to a
determination or decision that denies your initial disability claim
based on medical factors, but you do not request one in time, you may
ask for more time to make your request. The request for an extension of
time must be in writing and it must give the reasons why the request
for a hearing was not filed within the stated time period. If you show
that you had good cause for missing the deadline, we will extend the
time period. To determine whether good cause exists, we use the
standards explained in Sec. 404.911. You must file the request for an
extension of time according to the procedures in paragraphs (b) or (c) of this section.
Subpart R[Amended]
10. The authority citation for subpart R of part 404 continues to read as follows:
Authority: Secs. 205(a), 206, 702(a)(5), and 1127 of the Social Security Act (42 U.S.C. 405(a), 406, 902(a)(5), and 1320a6); sec. 303, Pub. L. 108203, 118 Stat. 493.
11. Amend Sec. 404.1700 by revising the introductory text and paragraph (a) to read as follows:
Sec. 404.1700 Introduction.
You may appoint one or more individuals or entities to represent
you in any of your dealings with us. This subpart explains, among other things
(a) Who may be your representative and what your representative's qualifications must be;
* * * * *
12. Revise Sec. 404.1703 to read as follows:
Sec. 404.1703 Definitions.
As used in this subpart
Access registration means supplying us with personal information that we use to identify you, your representative, or an individual working on behalf of your representative, to authenticate and authorize you, your representative, or an individual working on behalf of your representative to do business with us.
Direct payment registration means supplying to us personal, financial institution, and business affiliation information that we use to authorize a representative under certain circumstances to receive direct payment of representative fees via electronic funds transfer.
Disqualify refers to an action that prohibits a person from
participating in or appearing before a Federal agency or Federal program, regardless of how long
[[Page 51970]]
the prohibition lasts or the specific terminology used.
Electronic media means the electronic media that we prescribe for providing us information, registering with us, and filing with us certain applications, forms, and other documents.
Entity means any business, firm, or other association, including but not limited to partnerships, corporations, forprofit
organizations, and notforprofit organizations.
Federal agency refers to any authority of the Executive branch of the Government of the United States.
Federal program refers to any program established by an Act of Congress or administered in whole or in part by a Federal agency.
Fee petition means a written statement signed by the claimant's representative requesting the fee the representative wants to charge and collect for services the representative provided in pursuing the claimant's benefit rights in proceedings before us.
Pastdue benefits means the total amount of benefits under title II
of the Act that has accumulated to all beneficiaries because of a
favorable administrative or judicial determination or decision, up to
but not including the month the determination or decision is made. For
purposes of calculating fees for representation, we determine pastdue
benefits before any applicable reduction under section 1127 of the Act
(for receipt of benefits for the same period under title XVI). Pastdue benefits do not include:
(1) Continued benefits paid pursuant to Sec. 404.1597a; or
(2) Interim benefits paid pursuant to section 223(h) of the Act.
Person means an individual or an entity.
Principal representative means an attorney who meets all of the requirements of Sec. 404.1705(a), an individual other than an attorney who meets all of the requirements of Sec. 404.1705(b), or an entity that meets all of the requirements under Sec. 404.1705(b), who has been appointed to represent you in dealings with us and who is responsible for disseminating information and requests from us to you and your other representatives, if any.
Professional representative means any attorney, any individual other than an attorney, or any entity that holds itself out to the public as providing representational services (see Sec. 404.1735) before us, regardless of whether the representative charges or collects a fee for providing the representational services.
Representative means an attorney who meets all of the requirements of Sec. 404.1705(a), an individual other than an attorney who meets all of the requirements of Sec. 404.1705(b), or an entity that meets all of the requirements of Sec. 404.1705(b), whom you appoint to represent you in dealings with us. For purposes of Sec. Sec. 404.1740 through 404.1799, the term representative also includes an attorney or a nonattorney whom you have not appointed as your representative under the previous sentence but who works for or on behalf of an appointed representative and helps represent you in your claim before us.
We, our(s), or us refers to the Social Security Administration.
You or your(s) refers to any individual claiming a right under the oldage, disability, dependents', or survivors' benefits program.
13. Amend Sec. 404.1705 by removing the heading for paragraphs (a)
and (b), revising paragraph (b) introductory text, and adding paragraphs (c) through (g) to read as follows:
Sec. 404.1705 Who may be your representative.
* * * * *
(b) You may appoint any person who is not an attorney to be your representative in dealings with us if the person
* * * * *
(c) We may refuse to recognize your appointed representative if the
representative does not meet our requirements. We will notify you and
your appointed representative if we do not recognize your appointed representative.
(d) You may appoint more than one representative to represent you at the same time.
(e) You must have a principal representative. When you appoint only one representative, that representative is your principal
representative. When you appoint more than one representative you must
select one of your appointed representatives as your principal
representative. Your principal representative is responsible for
disseminating information and requests from us to you and your other
representatives, if any, and for providing us information from you and
about your claim. You may have only one principal representative at a time.
(f) If at any point you are represented by more than one
representative and you have not appointed or do not have a principal
representative, we will name one of your appointed representatives as
your principal representative. You may appoint a different principal
representative than the one we name by filing the appropriate form.
(g) Each of your representatives, as well as individuals working on
their behalf, must complete access registration with us in the manner we prescribe.
14. Revise Sec. 404.1707 to read as follows:
Sec. 404.1707 How you appoint and revoke the appointment of a representative.
(a) You must use the version of the form we prescribe, electronic
or paper, to appoint or revoke the appointment of a representative.
(1) If your representative is not a professional representative,
and your representative does not want to deal with us through the
electronic media we prescribe, we will recognize your appointment of a representative if
(i) Both you and your representative sign the paper form we prescribe;
(ii) You choose a principal representative on the form we prescribe at the time of the appointment; and
(iii) You or your representative files the signed form with us at
one of our offices if you have initially filed a claim or have
requested reconsideration; with the hearing office if you have
requested a hearing; or with the Appeals Council if you have requested a review of the administrative law judge's decision.
(2) If your representative is a professional representative, or if
your representative is not a professional representative but wants to
do business with us through the electronic media we prescribe, we will recognize your appointment of a representative if
(i) Your representative electronically signs the form we prescribe,
prints the electronically signed form, and you sign the printed copy of the form;
(ii) You choose a principal representative on the form we prescribe at the time of the appointment; and
(iii) Your representative files the electronic form in the manner we prescribe.
(3) If we do not make the electronic form available or we prescribe
that the electronic form is not required, then we will recognize your
appointment of a professional representative according to the procedures in paragraph (a)(1) of this section.
(b) Each time you change your principal representative, you must file a new version of the form we prescribe.
(c) If at any point you are represented by more than one
representative and you have not appointed or do not have a principal
representative, we will name one of your appointed representatives as
your principal representative. You may appoint a different principal
representative than the one we name by filing the appropriate form. [[Page 51971]]
(d) You must file the form we prescribe with us to revoke the
appointment of a representative. The date of the revocation is the date
on which you file the form with us. We will notify you and your
representative that you revoked your representative's appointment.
15. Amend Sec. 404.1710 by revising paragraphs (a) introductory text and (b) and adding paragraph (c) to read as follows:
Sec. 404.1710 Authority of a representative.
(a) Your representative may, on your behalf
* * * * *
(b) Your principal representative may also sign and file an
application on your behalf for rights or benefits under title II of the Act, as described in Sec. 404.612(h).
(c) If you appoint an entity as your representative, any document
related to the claim that is signed by a registered employee of the
entity is binding on that entity, even if the employee's association with the entity ends.
16. Add a new Sec. 404.1712 to read as follows:
Sec. 404.1712 When the appointment of your representative begins and ends.
(a) The appointment of your representative begins on the date that
you and your representative sign the form we prescribe appointing your
representative as described in Sec. 404.1707. However, we will not
recognize your appointment of a representative or deal with your
representative until you or your representative file(s) the signed form with us.
(b) If your appointed representative is an individual, the
individual's authority continues until the earliest of the following actions occur
(1) You file the prescribed form with us revoking the appointment of your representative;
(2) Your representative files the prescribed form with us withdrawing as your representative;
(3) We have made a final determination or decision on your claim
and the claims of any auxiliary beneficiary, the period in which you or
your representative could appeal our determination or decision has
ended, and you or your representative, or the auxiliary beneficiary, if any, did not file an appeal before the end of that period;
(4) Your representative files a fee petition requesting our
authorization to charge and collect a fee (see Sec. Sec. 404.1720 and 404.1725);
(5) We have closed out any application that was started by you or
on your behalf but was not pursued within the time period we prescribe; (6) We disqualify or suspend your representative; or
(7) Your representative dies.
(c) If your appointed representative is an entity, the entity's
authority continues until the earliest of the following actions occur
(1) You file the prescribed form with us revoking the appointment of your representative;
(2) Your representative files the prescribed form with us withdrawing as your representative.
(3) We have made a final determination or decision on your claim
and the claims of any auxiliary beneficiary, the period in which you or
your representative could appeal our determination or decision has
ended, and you or your representative, or the auxiliary beneficiary, if any, did not file an appeal before the end of that period;
(4) Your representative files a fee petition requesting our
authorization to charge and collect a fee (see Sec. Sec. 404.1720 and 404.1725);
(5) We have closed out any application that was started by you or
on your behalf but was not pursued within the time period we prescribe; (6) We disqualify or suspend your representative;
(7) The entity goes out of business; or
(8) The entity changes ownership or changes the services it
provides, such that it no longer represents claimants before us.
(d) You may reappoint a representative by properly filing a new
prescribed form with us in accordance with Sec. Sec. 404.1705 and 404.1707.
17. Add a new Sec. 404.1713 to read as follows: Sec. 404.1713 Professional representatives.
(a) Professional representatives must conduct business with us
electronically at the times and in the manner that we prescribe.
(b) Professional representatives, and individuals working on behalf
of professional representatives on claims before us, must make certain
attestations we require to ensure that each individual knows,
understands, and will comply with our rules and regulations. Each of
these individuals will make these attestations one time during the access registration process.
18. Revise Sec. 404.1715 to read as follows:
Sec. 404.1715 Notice or request to a representative.
(a) We will send to you, your principal representative, and your
other representatives, if any, all notices relating to the appointment
of any of your representatives and the revocation or withdrawal of an
appointment of any of your representatives. Notices sent in accordance
with Sec. 404.1730(c)(2)(i) will be sent to any representative who has
not filed a written request for a fee in accordance with Sec. 404.1730(c)(1).
(b) We will send only to your principal representative
(1) Notices and copies of any administrative action, determination, or decision in your claim; and
(2) Requests for information or evidence in your claim.
(c) If your principal representative is an entity, we will send all
notices, copies of any administrative action, determination, or
decision in your claim, and requests for information to the individual
who signed the appointment of representative form on behalf of the
entity, until or unless the entity informs us of a different contact within the entity for this purpose.
(d) Your principal representative is responsible for informing
other appointed representatives, if any, about any notices,
administrative actions, determinations, decisions, or requests for
information or evidence that we send to the principal representative.
We will not send copies of notices, any administrative actions,
determinations, decisions, or requests for information or evidence to any representative, except your principal representative.
(e) Any notice or request we send to your principal representative
will have the same force and effect as if we sent it directly to you.
19. Amend Sec. 404.1720 by revising paragraphs (a), (b)(1),
(b)(3), (b)(4), (c) introductory text, (c)(3), the first two sentences
of paragraph (d)(1), and the first sentence of paragraph (d)(2)(i) to read as follows:
Sec. 404.1720 Fee for a representative's services.
(a) General. A representative may charge and receive a fee for
providing you with services as a representative as provided in
paragraph (b) of this section, or as provided in section 206(a)(2) of the Act.
(b) Charging and receiving a fee under the fee petition process.
(1) A representative must file a written fee petition with us before
the representative may charge or receive a fee for providing you with services.
* * * * *
(3) A representative must not charge or receive any fee unless we
have approved it, and a representative must not charge or receive any fee that is more than the amount we approve.
[[Page 51972]]
(4) If the representative is an attorney, a nonattorney who is
eligible to participate in the direct payment demonstration project, as
defined in Sec. 404.1717, or an entity that meets the requirements in
Sec. 404.1730(f) and the claimant is entitled to pastdue benefits, we
will pay the authorized fee, or a part of the authorized fee, directly
to the attorney, eligible nonattorney, or eligible entity out of the
pastdue benefits, subject to the limitations described in Sec.
404.1730(b)(1). If the representative is not an attorney, eligible non
attorney, or eligible entity, we assume no responsibility for the payment of any fee that we have authorized.
(c) Notice of determination on the fee petition. We will mail to
both you and your representative at your last known addresses a written
notice of what we decide about the fee petition. We will state in the notice
* * * * *
(3) That we are not responsible for paying the fee, except when we
may pay an attorney, a nonattorney who is eligible to participate in
the direct payment demonstration project, as defined in Sec. 404.1717,
or an entity that meets the requirements in Sec. 404.1730(f), from pastdue benefits; and
* * * * *
(d) Review of fee petition determination(1) Request filed on
time. We will review the decision we made about a fee petition if
either you or your representative files a written request for the
review through the electronic media we prescribe or at one of our
offices within 30 days after the date of the notice of the fee
determination. Either you or your representative, whoever requests the
review, must mail a copy of the request to the other person. * * *
(2) Request not filed on time. (i) If you or your representative
requests a review of the decision we made about a fee, but does so more
than 30 days after the date of the notice of the fee determination,
whoever makes the request must state in writing why it was not filed within the 30day period. * * *
* * * * *
20. Amend Sec. 404.1725 by revising the section heading,
paragraphs (a) introductory text, (a)(2) through (a)(6), the heading
for paragraph (b), and paragraph (b)(1)(vii) to read as follows: Sec. 404.1725 Request for approval of a fee petition.
(a) Filing a written fee petition. Unless your representative's fee
is approved pursuant to section 206(a)(2) of the Act, in order for your
representative to obtain approval of a fee for services your
representative performed in dealings with us, your representative must
file a written fee petition through the electronic media we prescribe
or at one of our offices. This should be done after the proceedings in
which your representative represented you are completed. The request must contain* * *
(2) A list of the services your representative provided and the
amount of time your representative spent on each type of service;
(3) The amount of the fee your representative wants to charge for the services;
(4) The amount of fee your representative wants to request or
charge for representing you in the same matter before any State or Federal court;
(5) The amount of and a list of any expenses your representative
incurred for which your representative has been paid or expects to be paid;
(6) A description of the special qualifications which enabled your
representative, if not an attorney, to give valuable help in connection with your claim; and * * *
(b) Evaluating a request for approval of a fee petition. (1) * * *
(vii) The amount of fee the representative requests for the
representative's services, including any amount authorized or requested
before, but not including the amount of any expenses the representative incurred.
* * * * *
21. Amend Sec. 404.1728 by revising paragraph (a) to read as follows:
Sec. 404.1728 Proceedings before a State or Federal court.
(a) Representation of a party in court proceedings in fee
petitions. We will not consider any service the representative gave you
in any proceeding before a State or Federal court to be services as a
representative in dealings with us. However, if the representative also
has given service to you in the same connection in any dealings with
us, the representative must specify what, if any, portion of the fee
the representative wants to charge is for services performed in
dealings with us. If the representative charges any fee for those
services, the representative must file the request and furnish all of the information required by Sec. 404.1725.
* * * * *
22. Revise Sec. 404.1730 to read as follows:
Sec. 404.1730 Payment of fees.
(a) Fees allowed by a Federal court in fee petitions. We will pay a
representative who is an attorney out of your pastdue benefits the
amount of the fee allowed by a Federal court in a proceeding under
title II of the Act. This payment is subject to the limitations described in paragraph (b)(1) of this section.
(b) Fees we may authorize for payment in fee petitions(1)
Attorneys, eligible nonattorneys, and eligible entities. Except as
provided in paragraphs (c) and (e) of this section, if we make a
determination or decision in your favor and you were represented by an
attorney, a nonattorney who is eligible to participate in the direct
payment demonstration project, as defined in Sec. 404.1717, or an
entity that meets the requirements in paragraph (f) of this section,
and as a result of the determination or decision you have pastdue
benefits, we will pay the representative out of the pastdue benefits,
the smallest of the amounts in paragraphs (b)(1)(i) or (ii) of this
section, less the amount of the assessment described in paragraph (d) of this section.
(i) Twentyfive percent of the total of the pastdue benefits; or (ii) The amount of the fee that we set.
(2) Persons not eligible for direct payment. If the representative
is a nonattorney who is not eligible to participate in the direct
payment demonstration project or an entity that is not eligible for
direct payment of the fee, we assume no responsibility for the payment
of any fee that we have authorized. We will not deduct the fee from your pastdue benefits.
(c) Time limit for filing request for approval of fee petition to
obtain direct payment. (1) To receive direct payment of a fee from your
pastdue benefits, a representative who is an attorney, a nonattorney
who is eligible to participate in the direct payment demonstration
project, as defined in Sec. 404.1717, or an entity that meets the
requirements in paragraph (f) of this section should file a request for
approval of a fee or a written notice of the intent to file a request
within 60 days of the date we mail t
FOR FURTHER INFORMATION CONTACT Marg Handel, Supervisory Social Insurance Specialist, Office of Income Security Programs, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235 6401, (410) 9654639. For information on eligibility or filing for benefits, call our national tollfree number, 18007721213 or TTY 1 8003250778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.
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