SSA Disability Representatives
Fee Payment Changes Show Promise, but Eligibility Criteria and Representative Overpayments Require Further Monitoring Gao ID: GAO-08-5 October 15, 2007The Social Security Protection Act of 2004 temporarily expanded the practice of paying representatives' fees directly out of a claimant's benefits. This practice, known as fee withholding, was previously available only to attorneys in Disability Insurance (DI) cases. It has been extended to attorneys in Supplemental Security Income (SSI) cases, and to nonattorneys--who meet eligibility criteria--in both DI and SSI cases. The act also mandated that GAO examine (1) the professional experience of disability representatives, (2) how judges and claimants view representatives' performance, (3) how the implementation of fee withholding for nonattorneys has been viewed, and (4) the impact of fee withholding in the SSI program. GAO surveyed representatives and judges, and interviewed claimants and Social Security Administration (SSA), state, and other officials.
Nonattorneys who have successfully applied for fee withholding eligibility had more experience representing claimants than attorneys or ineligible nonattorneys. From our surveys, we estimate that eligible nonattorneys had represented on average over 240 disability claimants over 2 years, while other representatives had represented on average fewer than 90. Eligible nonattorneys were also most likely to specialize in disability representation. Judges and claimants considered the performance of eligible nonattorneys to be generally on a par with that of attorneys, but judges rated ineligible nonattorneys less highly. Judges we surveyed rated eligible nonattorneys as about equal to attorneys overall, and many said a law degree is not necessary for effective disability representation. Claimants we interviewed were generally satisfied with their representatives, regardless of type. Judges and eligible nonattorneys were generally satisfied with the implementation of fee withholding for nonattorneys, including most of the eligibility criteria for nonattorneys. However, both groups expressed concern about the experience standard, which currently allows nonattorneys who have represented as few as five disability claims before SSA over a 2-year period to qualify for fee withholding. Most judges we interviewed and more than half of the eligible nonattorneys considered this insufficient. And, according to an association of representatives, fee withholding is attracting more inexperienced nonattorneys to the field of disability representation. Fee withholding has increased the number of SSI claimants represented by attorneys, but has also complicated payments in certain SSI cases. In some cases, representatives can now inappropriately receive more than the fee authorized by SSA. At least 10 states pay fees to representatives of successful SSI claimants, and SSA does not coordinate with most of these states to prevent overpayments to representatives through fee withholding and state payments. Also, claimants eligible for both DI and SSI have experienced delays in receiving their benefits as a result of fee withholding in the SSI program. SSA has tentative plans to address these delays.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-08-5, SSA Disability Representatives: Fee Payment Changes Show Promise, but Eligibility Criteria and Representative Overpayments Require Further Monitoring
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
October 2007:
SSA Disability Representatives:
Fee Payment Changes Show Promise, but Eligibility Criteria and
Representative Overpayments Require Further Monitoring:
SSA Disability Representatives:
GAO-08-5:
GAO Highlights:
Highlights of GAO-08-5, a report to congressional committees.
Why GAO Did This Study:
The Social Security Protection Act of 2004 temporarily expanded the
practice of paying representatives‘ fees directly out of a claimant‘s
benefits. This practice, known as fee withholding, was previously
available only to attorneys in Disability Insurance (DI) cases. It has
been extended to attorneys in Supplemental Security Income (SSI) cases,
and to nonattorneys”who meet eligibility criteria”in both DI and SSI
cases. The act also mandated that GAO examine (1) the professional
experience of disability representatives, (2) how judges and claimants
view representatives‘ performance, (3) how the implementation of fee
withholding for nonattorneys has been viewed, and (4) the impact of fee
withholding in the SSI program. GAO surveyed representatives and
judges, and interviewed claimants and Social Security Administration
(SSA), state, and other officials.
What GAO Found:
Nonattorneys who have successfully applied for fee withholding
eligibility had more experience representing claimants than attorneys
or ineligible nonattorneys. From our surveys, we estimate that eligible
nonattorneys had represented on average over 240 disability claimants
over 2 years, while other representatives had represented on average
fewer than 90. Eligible nonattorneys were also most likely to
specialize in disability representation.
Judges and claimants considered the performance of eligible
nonattorneys to be generally on a par with that of attorneys, but
judges rated ineligible nonattorneys less highly. Judges we surveyed
rated eligible nonattorneys as about equal to attorneys overall, and
many said a law degree is not necessary for effective disability
representation. Claimants we interviewed were generally satisfied with
their representatives, regardless of type.
Figure: Judges Rated Attorneys and Eligible Nonattorneys Most Highly
Overall:
[See PDF for image]
Source: January/February 2007 GAO survey administrators law judges in
10 SSA hearing offices.
[End of figure]
Judges and eligible nonattorneys were generally satisfied with the
implementation of fee withholding for nonattorneys, including most of
the eligibility criteria for nonattorneys. However, both groups
expressed concern about the experience standard, which currently allows
nonattorneys who have represented as few as five disability claims
before SSA over a 2-year period to qualify for fee withholding. Most
judges we interviewed and more than half of the eligible nonattorneys
considered this insufficient. And, according to an association of
representatives, fee withholding is attracting more inexperienced
nonattorneys to the field of disability representation.
Fee withholding has increased the number of SSI claimants represented
by attorneys, but has also complicated payments in certain SSI cases.
In some cases, representatives can now inappropriately receive more
than the fee authorized by SSA. At least 10 states pay fees to
representatives of successful SSI claimants, and SSA does not
coordinate with most of these states to prevent overpayments to
representatives through fee withholding and state payments. Also,
claimants eligible for both DI and SSI have experienced delays in
receiving their benefits as a result of fee withholding in the SSI
program. SSA has tentative plans to address these delays.
What GAO Recommends:
We are recommending that SSA monitor and if necessary adjust the
nonattorney eligibility criteria, assess the extent of overpayments to
representatives and if necessary implement solutions, and continue to
explore options to address benefit payment delays. In its comments on a
draft of this report, SSA agreed with our findings and recommendations,
and noted actions it plans to take to address our recommendations.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.GAO-08-5]. For more information, contact Daniel
Bertoni at (202) 512-7215 or bertonid@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Nonattorneys Eligible for Fee Withholding Have the Most Experience
Representing Disability Claimants and Are Most Likely to Specialize in
Disability Representation:
Attorneys and Eligible Nonattorneys Were Regarded about Equally Well
Overall, while Other Nonattorneys Were Rated Less Highly by Judges:
While There Is General Satisfaction with the Implementation of Fee
Withholding for Nonattorneys, the Minimum Experience Requirement May Be
Insufficient:
Fee Withholding Has Increased the Number of SSI Claimants Represented
by Attorneys but Has Complicated Payments in Certain Types of SSI
Cases:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Nonattorney Representatives' Highest Level of Education:
Appendix III: Geographic Distribution of Representatives by Type:
Appendix IV: Comments from the Social Security Administration:
Appendix V: GAO Staff Contact and Acknowledgments:
Related GAO Products:
Tables:
Table 1: Demonstration Project Applicants and Their Pass Rates, 2005-
2007:
Table 2: Dispositions of Representative Survey Nonrespondents for
Survey of Attorneys and Ineligible Nonattorneys:
Table 3: Hearing Offices Selected for ALJ Survey:
Table 4: Total Responses and Response Rate for Survey of ALJs:
Figures:
Figure 1: SSA's Disability Claims Process:
Figure 2: Percentage of Claimants with Representation at Their Hearing,
Fiscal Years 2000-2006:
Figure 3: Eligible Nonattorneys Represented More Disability Claimants
over a 2-Year Period than Other Representatives:
Figure 4: Representatives Who Specialize in Disability Represented
Substantially More Disability Cases over a 2-Year Period than Those Who
Do Not:
Figure 5: Many Nonattorneys Had Prior Relevant Work Experience:
Figure 6: Attorneys and Eligible Nonattorneys Are More Likely to Work
in the Private Sector:
Figure 7: Judges Rated Most Highly the Overall Performances of
Attorneys and Eligible Nonattorneys:
Figure 8: Judges Rated Attorneys Most Highly in Their Performance
during Hearings:
Figure 9: Judges Rated Attorneys and Eligible Nonattorneys Equally for
Other Facets of Disability Representation:
Figure 10: Many Eligible Nonattorneys Consider Most Eligibility
Requirements Reasonable or Appropriate:
Figure 11: Attorneys Include Fewer SSI Cases in Their Caseloads than
Nonattorneys Do:
Figure 12: The Extension of Fee Withholding to the SSI Program Has
Resulted in Later SSI Payments to Claimants Receiving Both SSI and DI
Benefits in Cases Where SSA Withholds the Representative's Fee:
Abbreviations:
ALJ: administrative law judge:
CPMS: Case Processing Management System:
DDS: disability determination service:
DI: Disability Insurance:
ODAR: Office of Disability Adjudication and Review:
SSA: Social Security Administration:
SSI: Supplemental Security Income:
SSR: Supplemental Security Record:
United States Government Accountability Office:
Washington, DC 20548:
October 15, 2007:
The Honorable Max Baucus:
Chairman:
The Honorable Charles E. Grassley:
Ranking Member:
Committee on Finance:
United States Senate:
The Honorable Charles B. Rangel:
Chairman:
The Honorable Jim McCrery:
Ranking Member:
Committee on Ways and Means:
House of Representatives:
Each year, several million Americans apply for benefits from the
federal government's two largest disability programs--Disability
Insurance (DI) and Supplemental Security Income (SSI). The DI program
provides benefits to individuals with a sufficient amount of work
experience who become unable to work because of a disability. The SSI
program is a means-tested program that serves low-income individuals
with disabilities, regardless of their work history. The disability
application process begins with the filing of a claim with a Social
Security Administration (SSA) field office, and may progress to a
hearing before an administrative law judge (ALJ) if the claim is
denied. Since the end of 2003, about 46,000 attorneys and 18,000
nonattorneys have served as representatives for DI and SSI claimants at
hearings, and some research indicates that claimants with such
representation are more likely to be successful in obtaining benefits
than those without. This may be because claims can be complex, and
claimants may need help with their applications, with the submission of
their medical evidence, or with the questioning of an expert witness in
a formal hearing.
To encourage representatives to accept disability claim cases, Congress
has authorized a practice known as fee withholding, which guarantees
that representatives are compensated for their services when claimants
are successful. The amount of the representative's fee is set by SSA,
after the representative files a request. Under fee withholding, SSA
pays the representative directly from an amount it withholds from the
claimant's benefits. Until the Social Security Protection Act of 2004
was passed, only attorneys had access to fee withholding, and only for
DI cases. The option of fee withholding has been temporarily extended
to attorneys in SSI cases, and--through a demonstration project--to
certain nonattorneys in both DI and SSI cases.[Footnote 1] The act
extended fee withholding to qualified representatives of SSI claimants
in an effort to promote representation for more SSI claimants. Partly
because of the absence of fee withholding from the SSI program, the
representation rate for SSI claimants has historically been lower than
that for DI claimants. To ensure that nonattorneys who qualify for fee
withholding are competent, the act established certain eligibility
criteria for the demonstration project, including passing an exam. More
than 400 nonattorneys have successfully applied for inclusion in the
demonstration project so far and--provided they satisfy certain ongoing
requirements--are eligible for fee withholding. All other nonattorneys
remain ineligible for fee withholding, although these ineligible
nonattorneys could apply for inclusion in the demonstration project and
try to become eligible for fee withholding in the future. These changes
were implemented in February 2005 for a 5-year period.
The act also required that GAO assess the implementation of these fee
withholding changes. Specifically, the mandate directs GAO to examine
(1) the professional experience of different types of disability
representatives, (2) how judges and claimants view the quality of
services provided by the representatives, (3) how judges and
nonattorneys eligible for fee withholding view the implementation of
fee withholding for nonattorneys, and (4) how the extension of fee
withholding to the SSI program has affected claimants and
representatives. To address these questions, we surveyed the
nonattorneys eligible for fee withholding at the time of our study. We
also surveyed random samples of attorney representatives of disability
claimants and nonattorney representatives who are currently ineligible
for fee withholding. We are able to make estimates about the entire
population of attorneys and ineligible nonattorneys at a 95 percent
level of confidence with calculated sampling errors. We asked ALJs in
10 hearing offices to rate the performance of all representatives who
came before them over a 1-month period. We conducted interviews with
judges in selected hearing offices, other SSA officials, state
officials, external stakeholder groups, and a small number of
disability claimants. Finally, we reviewed an analysis SSA performed to
determine whether sufficient funds were available to pay
representatives their full fees in certain types of cases. We conducted
our work between June 2006 and September 2007 in accordance with
generally accepted government auditing standards. (See app. I for more
details on our objectives, scope, and methodology, including our
response rate for the surveys and our criteria for selecting hearing
offices to participate in the ratings by judges.)
Results in Brief:
Nonattorney representatives who have met the eligibility requirements
for fee withholding under the demonstration project have more
experience representing disability claimants and are more likely to
specialize in disability representation than attorneys or ineligible
nonattorneys. According to our surveys, we estimate that nonattorneys
eligible for fee withholding have represented on average over 240
disability claimants in a 2-year period, whereas other representatives
have represented on average fewer than 90. Nearly all eligible
nonattorneys specialize in disability representation, a fact that may
explain why they have substantially more experience representing
disability claimants. Although both eligible and ineligible
nonattorneys lack advanced legal training, many had relevant work
experience before becoming disability representatives, such as having
worked at SSA. In terms of current employment, attorneys and eligible
nonattorneys predominantly work in the private sector, but many
ineligible nonattorneys work at nonprofit organizations and government
agencies, which may not charge claimants fees.
Judges rated attorneys and eligible nonattorneys about equally well
overall, and more highly than ineligible nonattorneys, while claimants
did not distinguish substantially among the three groups. In overall
performance, judges at the 10 sites we surveyed during January and
February 2007 viewed attorneys and eligible nonattorneys as comparable,
although they rated attorneys more highly in a few specific areas of
disability representation. Judges rated about 55 percent of overall
performances by both attorneys and eligible nonattorneys as above
average or among the best, and only about 6 percent as below average or
poor. Many judges also told us they believe that experience in the
field rather than legal training is the key to effective representation
of disability claimants. However, judges did rate attorneys somewhat
more highly than the eligible nonattorneys in certain facets of
disability representation, such as in questioning of vocational and
medical experts. By contrast, judges viewed nonattorneys who are
ineligible for fee withholding as less capable than both attorneys and
eligible nonattorneys, both in overall performance and in every facet
of disability representation. Ratings by the limited number of
claimants we interviewed, on the other hand, did not distinguish
substantially among the various representatives in their overall
performance.
Judges and eligible nonattorneys were generally satisfied with the
overall implementation of fee withholding for nonattorneys, but they
expressed some concern about the experience standard for nonattorney
eligibility. Almost all eligible nonattorney representatives were
satisfied with SSA's overall management of the program. Eligible
nonattorneys also report that eligibility for fee withholding has
benefited them by, for example, allowing them to take on more cases
because they spend less time trying to collect fees from claimants. We
found that judges and eligible nonattorneys considered most of the
eligibility requirements for participation in the demonstration project
to be reasonable. However, both groups, in addition to advocacy groups
we spoke with, questioned the adequacy of the experience standard,
which calls for nonattorneys to have represented at least five
claimants before SSA over a 2-year period. Most of the judges we
interviewed and more than half of the eligible nonattorneys considered
this to be insufficient experience. Judges, and also advocacy groups we
spoke with, said that the standard would not ensure that eligible
nonattorneys are well qualified in disability representation.
Fee withholding has succeeded in encouraging some attorneys to
represent more SSI claimants, but it has also complicated payments to
representatives and claimants in certain SSI cases. Attorneys reported
that before fee withholding was extended to SSI, the possibility of not
collecting their fees affected their decision to represent SSI
claimants. Because of the availability of fee withholding,
approximately one-third of attorneys with disability practices report
that they are now representing more SSI claimants than in the past. Fee
withholding, however, has also complicated payments to attorney and
nonattorney representatives, as well as to claimants. In some cases,
representatives may inappropriately receive both SSA and state payments
that may total more than the SSA-authorized fee. Most states provide
cash assistance to SSI claimants during the application process. At
least 10 of these states pay fees to representatives of successful SSI
claimants to encourage representatives to take SSI cases, and therefore
increase the number of state residents receiving federal rather than
state assistance benefits. Because SSA does not coordinate with these
states to prevent overpayments, representatives can collect more than
the authorized fee through payments from both SSA and the state--
something that under the Social Security Act, representatives are not
allowed to do. In addition, fee withholding in the SSI program has
delayed benefit payments to claimants. In cases where claimants receive
benefits from both the SSI and DI programs at the same time, SSA
performs a calculation to determine the total benefits and the amount
of the representative's fee. With the extension of fee withholding to
the SSI program, SSA cannot pay benefits until after it has performed
this calculation. According to SSA and two disability representative
associations, this change has led to delays in claimants receiving
their payments, although SSA has not determined the extent of these
delays. SSA is tentatively planning to make changes that would address
this issue.
We are recommending that the Commissioner of SSA monitor the
nonattorney eligibility criteria to help ensure that only well-
qualified representatives receive access to fee withholding, and if
necessary adjust these criteria; assess the extent of overpayments to
representatives in cases involving state fees, and if necessary take
steps to prevent these overpayments; and continue to explore options to
address benefit payment delays for recipients receiving both SSI and DI
benefits. In its comments on a draft of this report, SSA agreed with
our findings and recommendations, and noted actions it plans to take to
address our recommendations.
Background:
SSA administers two programs under the Social Security Act that provide
benefits to people with disabilities: DI and SSI. Established in 1956,
the DI program provides monthly cash benefits to workers with
disabilities (and their spouses and dependents) whose employment
history qualifies them for disability benefits. In 2006, SSA paid about
$82 billion in DI benefits to about 8.5 million workers with
disabilities and their spouses and dependents. On average these
disabled workers received $946 a month and their spouses and children
received $248 and $281 a month, respectively. SSI is a means-tested
income assistance program created in 1972 that provides a financial
safety net for individuals who are aged or blind or have other
disabilities and who have low incomes and limited resources. Unlike the
DI program, SSI has no prior work requirement. In 2006, SSA paid about
$25 billion in federal SSI benefits to about 5 million people with
disabilities. These SSI beneficiaries received on average $422 per
month. To be considered eligible for either program as an adult, a
person must be unable to engage in substantial gainful activity--work
that allows the person to earn a certain amount of money each month--
because of a physical or mental impairment that is expected to last at
least a year or result in death. Some disability recipients receive
both DI and SSI benefits because of the low level of their income and
resources.
The disability determination process is complex and multilayered. The
process begins at a field office where an SSA staff member determines
whether a claimant meets the programs' nonmedical eligibility criteria.
Claims meeting these criteria are evaluated by state disability
determination service (DDS) staff members, who review medical and other
evidence and determine the initial disability decision. A claimant
denied at this level may ask the DDS for a reconsideration of its
finding. If the claim is denied again, the claimant may appeal to SSA's
Office of Disability Adjudication and Review, where an ALJ will review
the claim during a hearing and render a decision. A claimant whose
appeal is subsequently denied may request a review by SSA's Appeals
Council and, if denied again, may file suit in federal court.[Footnote
2] (See fig.1.)
Figure 1: SSA's Disability Claims Process:
[See PDF for image]
Source: SSA documents. Images, top: Rubberball Productions, bottom:
GAO.
[End of figure]
Representation of Disability Claimants:
Disability claimants may be represented in their interactions with SSA
by an attorney or a nonattorney. Claimants who choose to use a
representative must appoint that individual and notify SSA of this
appointment. They may be represented at any stage of the disability
application process, from the initial application to an appeal to the
federal courts.[Footnote 3] A representative may act on a claimant's
behalf in a number of ways, including getting information from the
claimant's Social Security file, helping the claimant obtain medical
records to support the claim, preparing the claimant and any witnesses
for a hearing, accompanying the claimant to a hearing, and questioning
witnesses at a hearing.
While no data are available on representation at the initial and
reconsideration stages, the majority of DI and SSI claimants who attend
hearings before an ALJ have representation at their hearings. DI
claimants have historically been more likely to have representation at
their hearings than SSI claimants (see fig. 2). Also, both DI and SSI
claimants have been more likely to be represented by attorneys than by
nonattorneys. For example, in fiscal year 2006, 88 percent of DI
claimants were represented by attorneys and 7 percent by nonattorneys.
Similarly, 66 percent of SSI claimants were represented by attorneys
and 10 percent by nonattorneys.[Footnote 4]
Figure 2: Percentage of Claimants with Representation at Their Hearing,
Fiscal Years 2000-2006:
[See PDF for image]
Source: SSA Case Control System:
[End of figure]
SSA has established broad guidelines regarding who may represent
disability claimants. Attorney representatives must be in good standing
and be admitted to practice before the highest court of the state or a
federal court. Nonattorney representatives must be known to have a good
character and reputation, and must be capable of providing valuable
help to the claimant in connection with the claimant's disability
application. The agency also has specific rules of conduct for
representatives. For example, representatives are required to promptly
obtain and submit evidence in support of a claim, to help claimants
respond quickly to requests for information from SSA, and to be
familiar with relevant laws and regulations. Representatives are
prohibited from, among other things, knowingly collecting any fees
except what is specifically allowed by law, and unreasonably delaying
the processing of a claim. If SSA has any evidence that a
representative does not meet the qualification requirements or has
violated the rules of conduct, the agency may file charges with the
goal of suspending or disqualifying the individual from serving as a
representative.
If a claimant's application for benefits is successful, the
representative may receive a portion of the claimant's past-due
benefits as a fee,[Footnote 5] provided the representative has received
authorization from SSA to receive this fee. Representatives typically
seek such authorization by entering into a fee agreement with the
claimant, which then must be submitted to SSA for approval. Under an
approved fee agreement, a representative receives 25 percent of the
claimant's past-due benefits, up to a maximum of $5,300. In some cases,
the representative may instead seek this authorization through a fee
petition, which requires the representative to itemize his or her
expenses and hourly charges and lets SSA determine a reasonable fee.
Since 1967, for attorneys representing DI claimants, SSA has withheld
fees from claimants' past-due benefits and paid the attorneys directly-
-guaranteeing the attorneys payment of their fees. By contrast,
nonattorney representatives and attorneys representing SSI claimants
have historically had to collect their fees from the claimants. Some
organizations, such as legal aid agencies, provide certain disability
claimants with free representation, rather than charging them a fee.
Expansion of Fee Withholding:
The Social Security Protection Act of 2004 expanded the practice of fee
withholding in two ways. First, it established a demonstration project
allowing certain nonattorney representatives to also qualify for fee
withholding. Second, in an effort to promote representation for more
SSI claimants, it extended fee withholding to qualified representatives
of SSI claimants--both attorneys and qualified nonattorneys. These
changes were implemented in February 2005 for a 5-year period.
To ensure that nonattorneys who qualify for fee withholding are
competent, the act establishes certain eligibility criteria. Applicants
must:
* have a bachelor's degree or the equivalent combination of education
and work experience,
* pass an examination that assesses knowledge of the SSI and DI
programs and relevant law,
* have liability insurance,
* pass a criminal background check, and:
* meet requirements for continuing education.
The specifics of these criteria--for example, the level of liability
insurance coverage and the amount and type of continuing education--are
determined by SSA. SSA has determined that a representative without a
bachelor's degree must have a combination of education and relevant
professional experience totaling at least 4 years. The agency has set
the minimum level of liability insurance coverage between $500,000 and
$5 million depending on the type of insurance and number of employees
covered. And SSA has also established that participants must complete
12 hours of qualifying continuing education courses during an initial
18-month period and complete 24 hours of instruction in each subsequent
2-year period. In addition, SSA has added an experience requirement for
eligibility, namely that a representative must have represented, before
SSA, at least five claimants in 2 years.
SSA uses a private contractor, CPS Human Resource Services, to
administer the process for determining eligibility for nonattorneys,
and charges nonattorney representatives a fee in the amount of $1,000
to cover the costs of administering the eligibility process. CPS Human
Resource Services collects application information from
representatives, works with SSA to ensure applicants meet the
eligibility criteria, and administers the examination. CPS Human
Resource Services also monitors two ongoing eligibility requirements:
professional liability insurance coverage and continuing education
requirements. Participants lose eligibility if they let their liability
insurance lapse or fail to meet continuing education requirements.
As shown in table 1, 630 nonattorneys applied for inclusion in the
demonstration project during the first 3 years. The examination has
been given four times. In total, 460 nonattorneys passed these
examinations and were deemed eligible for fee withholding, though some
may have left the program or been dropped if they did not meet ongoing
eligibility requirements. All other nonattorneys remain ineligible for
fee withholding.
Table 1: Demonstration Project Applicants and Their Pass Rates, 2005-
2007:
Exam period: Initial applicants; (Applicants who submitted an
application for inclusion in the project);
2005 (A)[A]: 242;
2005 (B)[A]: 124;
2006: 106; 2007: 158;
Total: 630.
Exam period: Exam participants; (Applicants who met the eligibility
criteria and were scheduled to take the exam);
2005 (A)[A]: 234;
2005 (B)[A]: 118;
2006: 101; 2007: 148;
Total: 601.
Exam period: Eligible nonattorneys; (Applicants who passed the exam and
became eligible for fee withholding);
2005 (A)[A]: 203; (87%);
2005 (B)[A]: 83; (70%);
2006: 71; (70%); 2007: 103; (70%);
Total: 460; (77%).
Source: SSA.
[A] The examination was offered on two occasions in 2005.
[End of table]
Nonattorneys Eligible for Fee Withholding Have the Most Experience
Representing Disability Claimants and Are Most Likely to Specialize in
Disability Representation:
Nonattorneys who have met the eligibility requirements for fee
withholding have more experience representing disability claimants than
attorneys or nonattorneys who are currently ineligible. On the basis of
our survey, we estimate that nonattorneys eligible for fee withholding
have represented on average more than 240 disability claimants in a 2-
year period.[Footnote 6] In the same amount of time, we found that
attorneys and ineligible nonattorneys represented an average of 89 and
55 disability claimants, respectively, according to our surveys (see
fig. 3).[Footnote 7]
Figure 3: Eligible Nonattorneys Represented More Disability Claimants
over a 2-Year Period than Other Representatives:
[See PDF for image]
Source: GAO surveys of representatives.
Note: The survey of attorneys and ineligible nonattorneys was
administered from February to April 2007, and respondents were asked
how many claimants they have represented over the past 2 years. The
survey of eligible nonattorneys was administered from November 2006 to
February 2007, and respondents were asked how many claimants they have
represented over the past 2 years. The numbers of disability cases
represented by attorneys and ineligible nonattorneys are population
estimates and have confidence intervals ranging from 65 to 112 and from
33 to 77, respectively. Because the survey of eligible nonattorneys was
not a sample survey, the results are not estimates and have no sampling
errors.
[End of figure]
Eligible nonattorneys may generally have larger disability caseloads
because they are more likely to specialize in disability
representation. According to our surveys, nearly all eligible
nonattorneys specialize in disability representation, but only some
attorneys and ineligible nonattorneys do so. We found that one-quarter
of attorneys with disability cases are disability specialists, and they
have represented substantially more disability claimants than attorney
representatives who are not disability specialists. One judge told us
that many attorney representatives work in other areas of the law as
well. For example, an attorney might primarily represent workers'
compensation cases but also represent disability claimants on occasion.
Like attorneys, only some ineligible nonattorneys specialize in
disability representation. About half of the ineligible nonattorneys
represent claimants on a professional basis, and some of them
specialize in disability representation; the other half are claimants'
relatives and friends. Those ineligible nonattorneys who represent
claimants professionally have substantial experience representing
disability claimants, especially those who specialize in disability
representation. In contrast, relatives and friends of claimants
generally have very limited representation experience, perhaps just a
few cases, and according to some judges are generally not competent to
serve as representatives. During hearings these judges strongly
discourage relatives and friends from acting as representatives and
instead encourage them to be witnesses. (See fig. 4 for a comparison of
caseloads between representatives who specialize in disability and
those who do not.)
Figure 4: Representatives Who Specialize in Disability Represented
Substantially More Disability Cases over a 2-Year Period than Those Who
Do Not:
[See PDF for image]
Source: GAO surveys of representatives.
Note: The survey of attorneys and ineligible nonattorneys was
administered from February to April 2007, and respondents were asked
how many claimants they have represented over the past 2 years. The
survey of eligible nonattorneys was administered from November 2006 to
February 2007, and respondents were asked how many claimants they have
represented over the past 2 years. The numbers of disability cases
represented by both specializing and nonspecializing attorneys are
population estimates and have confidence intervals ranging from 214 to
354 and from 12 to 23, respectively. The numbers of disability cases
represented by ineligible nonattorneys who represent claimants
professionally and who either specialize or do not specialize are also
population estimates; specialists' case estimates have confidence
intervals ranging from 119 to 307 and estimates of nonspecialists have
confidence intervals ranging from 11 to 37. Estimates of relatives and
friends have confidence intervals ranging from 0 to 9. Because most
eligible nonattorneys completed our survey, the number of disability
cases they have represented is not an estimate and, therefore, is not
associated with confidence intervals.
[End of figure]
Nonattorneys generally do not have advanced legal training, as
attorneys do. However, most nonattorneys who represent claimants
professionally have at least a college degree and many had prior
relevant work experience. (See app. II for more detailed information on
nonattorneys' levels of education.) For example, before becoming
disability representatives, the majority of eligible nonattorneys
worked at SSA or in a law-related occupation such as a paralegal. In
addition, many ineligible nonattorneys who represent claimants
professionally had previous careers in social work or health care. (See
fig. 5.)
Figure 5: Many Nonattorneys Had Prior Relevant Work Experience:
[See PDF for image]
Source: GAO surveys of representatives.
Note: Survey respondents were only permitted to select one response
regarding their previous occupation. The Other category includes a
number of professions, such as teacher, accountant, and student. The
responses provided by ineligible nonattorneys who represent claimants
professionally regarding their previous occupations are population
estimates and are subject to sampling errors of no more than plus or
minus 11 percentage points. However, in some cases the application of a
general error margin does not provide enough specificity; in the case
of the estimate for medical or vocational expert/SSA contractor the
confidence interval starts with 3 and does not exceed 15. Because the
survey of eligible nonattorneys was not a sample survey, the results
are not estimates and have no sampling errors. Ineligible nonattorneys
who do not represent claimants professionally were not instructed to
provide any information on their previous occupation. Percentages may
not add up to 100 due to rounding.
[End of figure]
With regards to current employment, attorneys who represent disability
claimants and eligible nonattorneys predominantly work in the private
sector, but many ineligible nonattorneys who represent claimants
professionally work for nonprofit organizations and state and local
government agencies. On the basis of our survey, we estimate that
nearly all of these attorneys who represent disability claimants work
at private law firms or are sole practitioners. Similarly, most
nonattorneys eligible for fee withholding are sole practitioners or
work at claimant representative firms other than law firms. We found
that these privately employed representatives rarely waive or reduce
fees charged to claimants, but may do so when the fee is a financial
hardship for the claimant. When attorneys and eligible nonattorneys do
charge fees, they virtually all elect to have their fees withheld. In
contrast to other representatives, almost half of the ineligible
nonattorneys who represent claimants professionally work for nonprofit
organizations or government agencies. (See fig. 6.) Some nonprofit
organizations and government agencies do not charge claimants fees, so
their employees may have no incentive to apply for fee withholding
eligibility.
Figure 6: Attorneys and Eligible Nonattorneys Are More Likely to Work
in the Private Sector:
[See PDF for image]
Source: GAO surveys of representatives.
Note: The Other category includes a wide variety of employers, most
commonly health care organizations. The responses provided by
ineligible nonattorneys who represent claimants professionally
regarding their current employment are population estimates and are
subject to sampling errors of no more than plus or minus 11 percentage
points. The responses provided by attorneys are also population
estimates and are subject to sampling errors of no more than plus or
minus 5 percentage points. However, in some cases the application of a
general error margin does not provide enough specificity; in the case
of the estimates for State or local government agency and Other the
confidence intervals start with 0 and do not exceed 5. Because the
survey of eligible nonattorneys was not a sample survey, the results
are not estimates and have no sampling errors. Percentages may not add
up to 100 due to rounding.
[End of figure]
Attorneys and Eligible Nonattorneys Were Regarded about Equally Well
Overall, while Other Nonattorneys Were Rated Less Highly by Judges:
Judges viewed attorneys and eligible nonattorneys--those who have
successfully applied for inclusion in the demonstration project--as
about equal in their overall performance, and viewed ineligible
nonattorneys as less capable. Judges we surveyed in 10 hearing offices
over a 1-month period rated about 55 percent of overall performances by
both attorneys and eligible nonattorneys as above average or one of the
best, and about 6 percent of overall performances by these groups as
below average or poor.[Footnote 8] By contrast, judges rated only about
30 percent of the overall performances by ineligible nonattorneys as
above average or among the best, and about 20 percent as below average
or poor. (See fig. 7.)
Figure 7: Judges Rated Most Highly the Overall Performances of
Attorneys and Eligible Nonattorneys:
[See PDF for image]
Source: January/February 2007 GAO survey of administrative law judges
in 10 SSA hearing offices.
[End of figure]
Similarly, many of the judges we interviewed in eight hearing offices
told us that overall, the performances of nonattorneys eligible for fee
withholding are comparable to that of the typical attorney. Most of the
judges we interviewed had been employed at SSA for at least 5 years,
and were often familiar with the professional background of specific
representatives who appear before them. Many of these judges expressed
the view that experience in disability representation rather than
formal legal training is the key to effective representation, or that
it is not necessary to have a law degree to effectively represent
disability claimants. For example, a judge in Forth Worth, Texas, told
us that experience is the main factor in determining who is a good
representative, and that experienced nonattorneys often perform better
than inexperienced attorneys. Furthermore, judges in most of the eight
offices told us that ineligible nonattorneys typically do not perform
as well as either attorneys or eligible nonattorneys. A judge in
Orlando, Florida, for example, said eligible nonattorneys are more
experienced and more comfortable with the relevant laws than those who
are ineligible.
Judges' opinions of representatives' performance in specific areas of
disability representation--such as representatives' submission of
evidence before the hearing and their questioning of claimants during
the hearing--were generally similar to their opinions of
representatives' overall performance. Judges we surveyed rated
attorneys and eligible nonattorneys as about equal in most areas of
disability representation that we asked about, and they rated
ineligible nonattorneys as less capable than the other two groups in
every area of disability representation.
However, judges did rate attorneys more highly than eligible
nonattorneys in some areas related to representatives' performance
during the actual hearing, in particular their opening and closing
statements and their questioning of medical and vocational experts (see
fig. 8). Similarly, almost all the judges in the offices that took part
in interviews told us that attorneys generally perform better than
eligible nonattorneys during the hearing itself. In particular, many
judges said attorneys have an advantage in their ability to question
witnesses during the hearing. For example, judges in Charleston, South
Carolina, told us that as a result of their legal training and
courtroom experience, attorneys are better at questioning claimants
without using leading questions, and at questioning medical and
vocational experts in a way that points out inconsistencies in their
testimony.
Figure 8: Judges Rated Attorneys Most Highly in Their Performance
during Hearings:
[See PDF for image]
Source: January/February 2007 GAO survey of administrative law judges
in 10 SSA hearing offices.
[End of figure]
By contrast, in our survey judges rated attorneys and eligible
nonattorneys equally for submitting evidence before the hearing,
knowledge of the law and regulations, and knowledge of case-specific
details (see fig. 9). Several judges we interviewed saw no significant
difference between attorneys and eligible nonattorneys in these areas.
However, judges in a few offices told us that attorneys are superior to
eligible nonattorneys in their knowledge of the law. On the other hand,
some judges felt that eligible nonattorneys perform better than
attorneys in their submission of evidence and their knowledge of case
details. For example, judges in Kingsport, Tennessee, told us that
eligible nonattorneys tend to be better prepared and more familiar with
the details of their cases than attorneys, saying that attorneys often
delegate the collection of case materials to paralegals rather than
doing it themselves, and that some attorneys from large firms do not
meet their client until the day of the hearing.
Figure 9: Judges Rated Attorneys and Eligible Nonattorneys Equally for
Other Facets of Disability Representation:
[See PDF for image]
Source: January/February 2007 GAO survey of administrative law judges
in 10 SSA hearing offices.
[End of figure]
Ratings by claimants we interviewed did not distinguish substantially
among various types of representatives, at least for overall
performance. The 30 claimants we interviewed rated their
representatives about equally well for overall performance, and they
were generally satisfied with their representatives.[Footnote 9] Nine
of the 10 claimants represented by attorneys, 9 of the 10 represented
by eligible nonattorneys, and 8 of the 10 represented by ineligible
nonattorneys were either satisfied or very satisfied with their
representative overall. There was some divergence in responses,
however, when we asked claimants about their representatives'
performance for certain facets of disability representation.[Footnote
10] While most of the claimants were at least satisfied with their
representatives' performance in the areas we asked about, the claimants
represented by attorneys and by ineligible nonattorneys were more
likely to be very satisfied than those represented by eligible
nonattorneys. For example, in assessing their representatives'
performance during the hearing, 6 claimants represented by attorneys
and 5 represented by ineligible nonattorneys were very satisfied,
compared to 2 represented by eligible nonattorneys. Similarly, in
assessing their representatives' responsiveness to their questions and
concerns, 6 claimants represented by attorneys and 6 represented by
ineligible nonattorneys were very satisfied, compared to 2 represented
by eligible nonattorneys.
While There Is General Satisfaction with the Implementation of Fee
Withholding for Nonattorneys, the Minimum Experience Requirement May Be
Insufficient:
Judges and eligible nonattorneys were generally satisfied with the
overall implementation of fee withholding for nonattorneys. For their
part, almost all of the nonattorney representatives who have become
eligible for fee withholding under the demonstration project were
satisfied with SSA's overall management of the extension of fee
withholding to nonattorneys. Specifically, more than 80 percent of
project participants reported on our survey that they were either very
or somewhat satisfied with SSA's management of the demonstration
project. In addition, most of the participants noted that they were
very satisfied with the contractor's management of the eligibility
application process. For example, one participant commented that the
contractor's staff was very professional and prompt in answering
questions. Officials we spoke with from professional organizations for
Social Security claimants' representatives also were generally
satisfied with the implementation of the fee withholding project.
The eligible nonattorney representatives also report that having
guaranteed payments through fee withholding had benefited them in
several ways. A few eligible nonattorneys told us that before the
extension of fee withholding, they had lost tens of thousands of
dollars in uncollected fees, and that eligibility for fee withholding
has helped them to stay in the profession. Nearly half of the eligible
nonattorneys also reported that their caseloads had increased as a
result of their eligibility for fee withholding. A few participants
explained in our survey that this was because they have been able to
devote more time to their clients and less time to fee collection.
Finally, officials from the National Association of Disability
Representatives--a nonprofit organization for professional Social
Security representatives, most of whom are nonattorneys--reported that
the availability of fee withholding under the demonstration project has
been drawing more nonattorneys into the field of disability
representation. In fact, they reported that as a result of fee
withholding the organization is allocating more resources than before
towards educating nonattorneys who have just started their careers as
disability representatives.
With regard to the eligibility criteria for nonattorneys, we found that
both judges and eligible nonattorneys, as well as representatives of
professional organizations, considered the criteria to be generally
reasonable. Some of the judges we interviewed said that the criteria
were reasonable overall, while offering suggestions for additional
requirements, such as training in legal writing or on the hearing
process. Most eligible nonattorneys thought that most of the criteria
were generally appropriate. As shown in fig. 10, almost all eligible
nonattorneys thought, for example, that the requirement to pass an
examination was reasonable. In addition, most said that the questions
on the exam were relevant to the knowledge required to professionally
represent claimants. Professional organizations we spoke with also
considered the criteria to be sufficient overall. One official, for
example, expressed approval of the flexibility in the education
requirement, which allows either a bachelor's degree or a combination
of training and work experience that the agency determines to be
equivalent to a bachelor's degree.
Figure 10: Many Eligible Nonattorneys Consider Most Eligibility
Requirements Reasonable or Appropriate:
[See PDF for image]
Source: GAO survey of representatives.
[End of figure]
However, judges, eligible nonattorneys, and professional organizations
all questioned the adequacy of the experience requirement set by SSA--
that applicants must have represented at least five claimants before
SSA over a 2-year period. This requirement was considered too low by
most judges we interviewed and more than half of the eligible
nonattorneys. Advocacy group representatives and judges we spoke with
expressed the view that this level of experience does not indicate
sufficient qualification in disability representation, and suggested
several alternative requirements. Officials from the National
Association of Disability Representatives suggested that a record of
wins over time, such as winning 10 cases over 2 years, would be a
better measure of effectiveness. Officials from the National
Organization of Social Security Claimants' Representatives suggested
that the experience requirement should include some cases at the
hearing level--for example, a requirement of 10 cases over 2 years,
with at least 5 at the hearing level. Finally, some judges suggested
that increasing the requirement to 20 to 25 cases over 2 years would be
appropriate. They did not specify whether these should be cases that
are won, but said that a greater number of cases would ensure
representatives have the necessary experience and knowledge to
represent claimants effectively.
In addition to the experience requirement, other aspects of the
implementation of fee withholding for nonattorneys have raised
concerns, though SSA has been considering or has taken steps already to
address them. On the basis of our survey, we estimate that many
ineligible nonattorneys were unaware of the project, and both the
National Association of Disability Representatives and some eligible
nonattorneys raised concerns regarding SSA's outreach to potential
participants. SSA has advertised the demonstration project through
several venues, including a notice in the Federal Register, its Web
site for claimant representatives, and flyers at hearing offices.
Agency officials said they also added information about the
demonstration project to certain forms that all representatives
normally complete, and that these revised forms are expected to be used
beginning in fall 2007. Finally, over one-quarter of eligible
nonattorneys reported problems with processing of their fees, which
they said were sometimes not withheld for them or were significantly
delayed. Both representatives and SSA officials attributed this problem
to the fact that eligible nonattorneys were often improperly coded as
not eligible for fee withholding in SSA databases. However, SSA has
recently instituted changes to the process that officials told us they
believe will reduce such problems.
Fee Withholding Has Increased the Number of SSI Claimants Represented
by Attorneys but Has Complicated Payments in Certain Types of SSI
Cases:
As a result of the extension of fee withholding to the SSI program,
some attorneys who represent disability cases report including more SSI
claimants in their caseloads. However, fee withholding has complicated
payments to representatives and claimants in certain types of SSI
cases. One of these complications is that representatives can be
inappropriately paid more than the SSA-authorized fee. Some states pay
fees to representatives of successful SSI claimants. Because SSA does
not coordinate payments with these states, representatives could
collect more than the authorized fee through a combination of SSA fee
withholding and the state payment--which, under the Social Security
Act, representatives are not allowed to do. Another complication is
that the extension of fee withholding has delayed payments to claimants
when they receive benefits from both the SSI and DI programs at the
same time. However, SSA is tentatively planning to make changes that
would address this issue.
About One-Third of Attorneys Who Represent Disability Cases Have
Included More SSI Claimants in Their Practices as a Result of Fee
Withholding:
Some attorneys are now including more SSI cases in their disability
practices because fee withholding is available in the SSI program. Most
attorneys with disability cases reported that before fee withholding
was an option, the possibility of not collecting their fees affected
their decision to represent SSI claimants. In fact, before the
extension of fee withholding to the SSI program, attorneys reported
that they had not received their full fee in approximately half of
their SSI cases. Along with problems collecting fees, representatives
and judges cited other disincentives to representing SSI claimants that
have contributed to representation rates that have been lower for SSI
than for DI. For example, fees in SSI cases are generally lower than
fees in DI cases. In addition, SSI claimants may have characteristics
that make their cases more difficult to win than DI cases, such as
problems with substance abuse or a lack of medical records. Despite
these continued disincentives, approximately one-third of attorneys
reported that they were representing more SSI claimants in their
disability practices as a result of the availability of fee
withholding. Some judges, representatives, and professional
organizations we spoke with said that if fee withholding were
permanently extended to the SSI program, the representation rate of SSI
claimants would increase--fulfilling one of the goals of the act.
While about one-third of attorneys who represent disability claimants
reported they were representing more SSI claimants as a result of fee
withholding, they nonetheless have fewer SSI cases in their disability
caseloads than nonattorneys do (see fig. 11). While SSI cases made up
just under 20 percent of the caseloads of attorneys, they made up
almost 30 percent of the caseloads of eligible nonattorneys, and over
40 percent of those of ineligible nonattorneys. As previously
mentioned, the SSI program serves individuals who have low incomes and
limited resources. SSI claimants have historically been represented
largely by nonprofit organizations, such as legal aid associations,
according to some professional organizations we spoke with, and
ineligible nonattorneys are more likely to work for nonprofit
organizations.
Figure 11: Attorneys Include Fewer SSI Cases in Their Caseloads than
Nonattorneys Do:
[See PDF for image]
Source: GAO survey of representatives.
Note: Caseload data were current as of November 2006 to February 2007
for eligible nonattorneys, and as of February to April 2007 for
attorneys and ineligible nonattorneys. The responses provided by
attorneys and ineligible nonattorneys regarding the types of disability
cases they represent are subject to sampling errors of no more than
plus or minus 7 percentage points. The responses provided by eligible
nonattorneys are not subject to sampling errors. See appendix I for
more information on our methodology.
[End of figure]
Lack of Collaboration between SSA and States on Certain Cases Allows
for Excess Payments to Representatives:
Now that fee withholding is available in the SSI program,
representatives may inappropriately receive both SSA and state payments
that may total more than the SSA-authorized fee. Under the Social
Security Act, SSA prescribes the maximum fee allowed, and
representatives may not knowingly collect more than the fee that SSA
authorizes them to receive for a case. However, we found that in cases
involving interim assistance payments, representatives may be able to
collect payments from the state and through fee withholding--and these
payments may total more than the authorized fee.
Most states provide cash assistance to SSI applicants, which is known
as interim assistance, during the SSI application process.[Footnote 11]
If an SSI claim is successful, SSA uses the claimant's past-due
benefits to reimburse the state for this interim assistance. Then, in
cases involving fee withholding, SSA pays the representative out of any
remaining past-due benefits.[Footnote 12] Finally, SSA pays the
claimant the remainder of the past-due benefits, subject to some
conditions (for example, the benefits may be paid in installments).
At least 10 states also use a portion of the interim assistance
reimbursements they receive from SSA to pay fees to
representatives.[Footnote 13] According to state documents, states may
pay these fees in order to encourage representatives to take SSI cases,
and therefore increase the number of state residents receiving federal
rather than state assistance benefits. While SSA reimburses the state
for interim assistance out of the claimant's past-due benefits, states
assume the cost of any fees they pay to representatives.
We found that SSA does not coordinate payments with most states that
pay fees to representatives. SSA has no systematic process in place to
inform states when representatives have been paid through fee
withholding, and SSA does not track which states pay representatives
fees. As a consequence, representatives could receive dual payments--
from the claimant's past-due benefits through SSA, and from the state-
-which would total more than the authorized fee. SSA and many states
rely on the representative or the claimant to inform them of these
overpayments. For example, SSA informed us of one case in which a
claimant complained that their representative had collected fees from
SSA and the state, and SSA then filed charges against this
representative.
If a representative does collect more than the authorized fee through
SSA and the state, there is no law regarding who should be repaid. If
SSA becomes aware of the overpayment, its policy is to collect the
excess payment from the representative, and then pass it along to the
claimant. If the state finds out about the overpayment first, it can
ask for the return of the fee that it paid the representative. For
example, in another overpayment case, a claimant called the state to
say that his representative had been overpaid through a combination of
the state payment and SSA's fee withholding. The state then asked the
representative to return its payment, and the claimant still received
the full amount of past-due benefits he was owed.
Some states are making adjustments now to prevent overpayments to
representatives, such as requiring representatives to submit
documentation indicating whether their fee was withheld by SSA, and not
paying the representatives if they are also receiving a fee through
withholding. Other states are considering eliminating the fee payments
they make to representatives. Although SSA officials acknowledged that
this overpayment vulnerability exists, the agency has not yet taken any
actions to address the problem, because it is not aware of the extent
of the problem and because it is waiting to see whether the extension
of fee withholding to the SSI program will be made permanent. SSA
officials suggested that the agency could address the problem by, for
example, revising the notice that representatives receive with their
SSA fee payment to explain that they may not collect more than their
authorized fee through a combination of SSA fee withholding and a state
payment, or by amending the alert sent to the state when a case is
approved to also indicate whether SSA will withhold the
representative's fee.
Fee Withholding Has Resulted in Delayed Payments to Claimants Receiving
Both SSI and DI Benefits:
Fee withholding in the SSI program has delayed payments to some
claimants in cases where claimants receive benefits from both the SSI
and DI programs. In such cases, SSA calculates the total benefits a
claimant should receive and adjusts the benefits paid from each program
accordingly.[Footnote 14] Because the representative's fee is a
percentage of the total past-due benefits owed to the claimant, this
calculation also affects the fee. In the past, when a claim was
approved in such a case, SSA paid the claimant the full SSI benefits
first. Then the agency calculated the total amount of SSI and DI
benefits owed to the claimant and determined the fee owed to the
representative. Finally, SSA paid the DI portion of the fee and
notified the claimant of how much to pay the representative out of the
past-due SSI benefits he or she received.[Footnote 15]
However, since the extension of fee withholding to the SSI program, the
process has changed for cases in which the representative is eligible
for fee withholding, and payments to claimants have been delayed as a
result of computer system limitations. Now, SSA generally cannot pay
the claimant any past-due SSI benefits until after it has calculated
the total SSI and DI benefits owed to the claimant, and withheld the
representative's fee. This is because when a claim is approved for a
case in which the claimant will receive both SSI and DI benefits, SSA's
computer systems have only two options: to pay the claimant all of the
SSI past-due benefits or to hold all of the benefits in reserve until
the representative's fee has been calculated and withheld. In other
words, the agency cannot pay part of the benefits and hold the rest in
reserve for the representative's fee. According to SSA and two
disability representative associations, this change in process has
resulted in delayed payments to claimants. SSA officials acknowledged
delays, and speculated that the delays in releasing benefits could be
more than a month, but said that the agency has not assessed the extent
of these delays. (See fig. 12 for the process before and after fee
withholding was extended to SSI cases.)
Figure 12: The Extension of Fee Withholding to the SSI Program Has
Resulted in Later SSI Payments to Claimants Receiving Both SSI and DI
Benefits in Cases Where SSA Withholds the Representative's Fee:
[See PDF for image]
Source: GAO analysis.
Note: Because fee withholding was previously available in the DI
program, the timing of DI benefit payments was not substantially
affected by the extension of fee withholding to the SSI program.
[End of figure]
The agency is tentatively planning to make changes to its computer
systems to address this issue. The changes would allow SSA to reserve
25 percent of the past-due SSI benefits for the representative's fee--
the maximum amount of benefits that would be needed--and release the
other 75 percent to the claimant more quickly. However, the agency has
not yet made a final decision on these changes.
Conclusions:
The implementation of the fee withholding changes has gone relatively
smoothly, and according to preliminary evidence, the changes appear to
be having their intended effects--limiting eligibility for fee
withholding to well-qualified nonattorneys and providing greater access
to representation for SSI claimants. The nonattorneys who have met the
eligibility criteria for fee withholding in SSI and DI cases so far
appear to be the most experienced and well qualified of the nonattorney
population, which suggests that the criteria have generally been
effective in ensuring the quality of the representatives participating
in the demonstration project. Also, the extension of fee withholding to
the SSI program has proven an incentive for some attorneys to represent
more SSI claimants, and may increase the representation rate for SSI
claimants.
However, a few potential issues have arisen in the implementation of
the fee withholding changes that could become more significant if the
changes are extended permanently. Although the nonattorneys who have
met the fee withholding eligibility criteria up to now are generally
well-qualified to represent disability claimants, it may be too early
to conclude that the criteria will always screen out less qualified
representatives. To the extent that the availability of fee withholding
draws more nonattorneys into the field of disability representation for
the first time, it is possible that in the future some less qualified
nonattorneys could satisfy the criteria. For example, a number of
judges and representatives believe that the experience standard set by
SSA may not be sufficiently rigorous to ensure that representatives are
well qualified. In addition, there is a risk that without enhanced
coordination between SSA and the states that pay representatives fees
out of their interim assistance reimbursements, some representatives of
SSI claimants will get paid more than their authorized fees and not
properly return the excess. So far there is only limited evidence that
representatives are improperly keeping dual payments, but it is
possible that this problem is more widespread and simply underreported.
Another problem related to the fee withholding changes is delayed
benefit payments to individuals who receive both SSI and DI benefits.
The extent of these delays is not known, but any delays in receiving
their benefits could be a financial hardship for these low-income
recipients, who typically rely on the benefits to pay for basic needs.
Recommendations for Executive Action:
We recommend that the Commissioner of SSA:
* Monitor the effectiveness of the nonattorney eligibility criteria in
continuing to ensure that only well-qualified representatives receive
access to fee withholding, and if necessary adjust the experience
standard or other criteria.
* Assess the extent to which representatives collect more than their
authorized fee through a combination of state payments and fee
withholding, and if necessary identify and implement cost-effective
solutions to ensure that representatives either are not paid more than
their authorized fee or return anything they receive in excess of their
authorized fee.
* Continue to explore cost-effective changes that would address SSI
benefit payment delays related to fee withholding in cases where
recipients receive both SSI and DI benefits.
Agency Comments:
We provided a draft of this report to officials at SSA for their review
and comment. In its comments, SSA agreed with our findings and
recommendations. Specifically, SSA indicated that if the fee
withholding changes are extended permanently, it plans to review the
eligibility criteria for nonattorneys and make adjustments as
necessary, and to work with the states to ensure that representatives
do not receive overpayments. The agency also confirmed that it plans to
make systems changes to address delays in benefit payments to
recipients of both SSI and DI benefits. SSA also provided technical
comments, which were incorporated as appropriate. SSA's comments are
reproduced in appendix IV.
We are sending copies of this report to the Commissioner of SSA,
relevant congressional committees, and others who are interested.
Copies will also be made available to others upon request. The report
is also available at no charge on GAO's Web site at [hyperlink,
http://www.gao.gov].
Please contact me on (202) 512-7215 if you or your staff have any
questions about this report. Other major contributors to this report
are listed in appendix V.
Signed by:
Daniel Bertoni:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
We were mandated by the Social Security Protection Act of 2004 to
assess the extension of fee withholding to certain nonattorneys and to
representatives of Supplemental Security Income (SSI) claimants.
Specifically, we were directed to examine (1) the professional
experience of different types of disability representatives, (2) how
judges and claimants view the quality of services provided by the
representatives, (3) how judges and nonattorneys eligible for fee
withholding view the implementation of fee withholding for
nonattorneys, and (4) how the extension of fee withholding to the SSI
program has affected claimants and representatives. To address these
questions, we conducted surveys of disability claimant representatives;
we surveyed administrative law judges (ALJs) and interviewed a small
number of judges and disability claimants regarding representatives'
performance; and we requested information from states that receive
interim assistance reimbursements from the Social Security
Administration (SSA). We interviewed officials from SSA, several
states, the National Organization of Social Security Claimants'
Representatives, the National Association of Disability
Representatives, the Association of Administrative Law Judges, and the
National Association of Disability Examiners. Finally, we also examined
an analysis that SSA had performed regarding fee withholding and
representative payments. We conducted our work from June 2006 to
September 2007 in accordance with generally accepted government
auditing standards.
Surveys of Representatives:
To learn about the characteristics and opinions of nonattorneys
eligible for fee withholding, we conducted a survey of all 343
nonattorneys who had met the eligibility criteria and were
demonstration project participants as of August 2006. SSA provided us
with a list of these eligible nonattorneys. We conducted this survey by
mail, from November 2006 to February 2007, and obtained an 88 percent
response rate. Because this was not a sample survey, there are no
sampling errors. The survey included questions on topics such as
representatives' education, experience with representing disability
claimants, and current disability caseloads; how they heard about the
fee withholding demonstration project and their satisfaction with the
implementation of the project; and how often they waive fees for
claimants.
To learn about the characteristics and opinions of attorney
representatives and of nonattorney representatives who are not
currently eligible for fee withholding, we surveyed a random sample of
attorneys and a random sample of ineligible nonattorneys. Like our
survey of eligible nonattorneys, this survey was voluntary and
individuals were not required to complete it. We surveyed 985
individuals who had represented a disability claimant at a hearing--494
who were labeled as attorneys in SSA's database and 491 who were
labeled as nonattorneys. We conducted the survey by mail from February
to April 2007. Our weighted response rate was 47 percent overall, with
a 46 percent weighted response rate among attorneys and a 49 percent
weighted response rate among nonattorneys. We sent the same survey to
all 985 representatives in our sample. This survey included questions
for all representatives on topics such as their experience representing
disability claimants and their current caseloads. It also included
questions specifically for attorneys, on topics such as the impact on
them of the extension of fee withholding to the SSI program and how
often they waive fees for claimants.[Footnote 16] In addition, the
survey included questions specifically for ineligible nonattorneys, on
topics such as their education and whether they were aware of the fee
withholding demonstration project.
Data Source for Survey of Attorneys and Ineligible Nonattorneys:
To develop our sample of representatives for this survey, we used SSA's
Case Processing Management System (CPMS), which contains data on
hearings held at SSA since 2003, including data on the claimant's
representative if the claimant had a representative. Data on the
representative includes name, address, and whether the representative
is an attorney or a nonattorney. Each representative in the database is
associated with at least one identification number, and possibly more
than one, because representatives are assigned different identification
numbers when their information is entered in the system by different
hearing offices; no identification number is associated with more than
one representative. For this reason, it is not possible to identify the
universe of unique representatives using identification numbers. To
draw our sample, we first developed a list of all unique representative
identification numbers. This list still contained many cases in which
multiple identification numbers were associated with the same
representative name. In an effort to generate a list of unique
representatives, we developed a list that included only one
identification number, whenever multiple identification numbers were
associated with the same representative's first name, last name, and
state of residence. We also eliminated from this list the names of
nonattorney representatives who were demonstration project
participants. This list included 77,413 representatives--60,880 labeled
as attorneys and 16,533 labeled as nonattorneys--and was our best
approximation of a list of unique representatives. However, it still
included some cases in which multiple identification numbers were
associated with the same representative, for example, because a
representative's name or address was spelled slightly differently when
associated with different identification numbers. In other words, even
though we had taken these steps to eliminate duplicate representatives,
some representatives still appeared more than once in the list, and had
a higher probability of being selected in our sample than other
representatives. We randomly selected a probability sample from this
list of 500 representatives identified as attorneys and 500 identified
as nonattorneys, and then eliminated a small number of attorneys and
nonattorneys from the sample because they were duplicate records or
there was some other problem with the data associated with them in the
database.
Efforts to Increase Response Rate for Survey of Attorneys and
Ineligible Nonattorneys:
We received a total of 483 survey responses--248 from attorneys and 235
from nonattorneys. We took several steps to enhance our response rate:
We sent reminder postcards to the entire sample after about one and a
half weeks, conducted follow-up phone calls to nonrespondents
encouraging them to complete the survey after about 4 weeks, and re-
sent the survey to nonrespondents after about 5 weeks. In cases where
CPMS had an incorrect phone number--for example, because the
information was outdated--and we had not received a survey response, we
used Internet search tools to try to locate current information for the
record. If in the course of our phone calling we learned a correct
address, we sent another copy of the survey to the current address.
Five hundred and two representatives in our sample did not return the
survey. We were unable to locate current phone numbers for over 40
percent of these nonrespondents.[Footnote 17] We attempted to contact
all the other survey recipients who did not return a survey. We were
unable to reach many of these nonrespondents; the others either agreed
to complete the survey but did not do so within the survey time frame,
refused to complete the survey, or were out of scope. (See table 2.)
Our response rate on the survey of attorneys and ineligible
nonattorneys, coupled with our comprehensive nonrespondent follow-up
efforts, allowed us to generalize our survey results to the population
of attorneys and ineligible nonattorneys representing disability cases
before SSA.
Table 2: Dispositions of Representative Survey Nonrespondents for
Survey of Attorneys and Ineligible Nonattorneys:
Category: Incorrect phone number;
Percentage of nonrespondents: 28.
Category: Agreed to complete, but did not do so within survey time
frame;
Percentage of nonrespondents: 24.
Category: Left phone message but could not reach individual;
Percentage of nonrespondents: 21.
Category: Incorrect mailing address and phone number;
Percentage of nonrespondents: 15.
Category: Refused to complete;
Percentage of nonrespondents: 8.
Category: Out of scope (e.g., deceased or have not represented a
disability claimant in past 5 years);
Percentage of nonrespondents: 3.
Category: Survey returned, but completion inadequate;
Percentage of nonrespondents: 2.
Source: GAO analysis.
[End of table]
Weighting of Data from Survey of Attorneys and Ineligible Nonattorneys:
On the basis of the responses to our survey of attorneys and ineligible
nonattorneys, we were able to calculate the probability of being
selected for each representative in our sample, and to weight each
respondent to account statistically for the representatives in our
population. One element of this weighting was the number of times that
each representative selected in our sample appears in the overall list
of representatives from which we drew the sample. To determine this
part of the weighting, we compared our sample of 985 names against the
entire list of 77,413 to manually determine the number of duplicate
records for each representative in the sample. The other factor
affecting the weighting was that some nonattorneys were incorrectly
labeled in the CPMS database as attorneys, and some attorneys were
incorrectly labeled as nonattorneys. These data errors affected the
size of the attorney and nonattorney populations, and therefore the
actual probability of being selected. On the basis of the rates of
duplication and misclassification we found among our survey
respondents, we estimated the actual number of attorney and nonattorney
representatives. Using both pieces of information--the number of
duplicate records associated with each representative, and the
estimated actual number of attorneys and of nonattorneys--we calculated
weighted response rates for the attorneys and nonattorneys.
Possible Errors Inherent in Probability Samples:
Survey results based on probability samples are subject to sampling
error. Each of the two samples (attorneys and ineligible nonattorneys)
is only one of a large number of samples we might have drawn from the
respective populations. Because each sample could have provided
different estimates, we express our confidence in the precision of our
two particular samples' results as 95 percent confidence intervals.
These are intervals that would contain the actual population values for
95 percent of the samples we could have drawn. As a result, we are 95
percent confident that each of the confidence intervals in this report
will include the true values in the respective study populations.
Unless otherwise noted, the margin of error for questions answered just
by attorneys is plus or minus 9 percentage points at the 95 percent
level of confidence. Unless otherwise noted, the margin of error for
questions answered just by ineligible nonattorneys is plus or minus 10
percentage points at the 95 percent level of confidence.
Efforts to Minimize Nonsampling Errors:
The practical difficulties of conducting any survey may also introduce
other types of errors, commonly referred to as nonsampling errors. For
example, difficulties in how a particular question is interpreted, in
the sources of information that are available to respondents, or in how
the data were entered into a database or were analyzed can introduce
unwanted variability into the survey results. With both surveys--the
survey of eligible nonattorneys and the survey of attorneys and
ineligible nonattorneys--we took steps to minimize these nonsampling
errors. For example, GAO survey specialists designed the questionnaires
in collaboration with GAO staff with subject matter expertise. Then the
draft questionnaires were pretested with disability representatives to
ensure that the questions were relevant, clearly stated, and easy to
comprehend. When the data were analyzed, a second, independent analyst
checked all computer programs.
Survey of ALJs:
To learn how ALJs view the performance of different types of
representatives, we asked judges in 10 hearing offices to assess
representatives' performances. We asked the judges to assess the
performance of all representatives appearing before them over a 1-month
period. Judges completed a short paper survey on the representative's
performance after each hearing in which the claimant had representation
during the survey period. The only identifying information provided to
GAO on the surveys was the name of the hearing office and the category
of representative being assessed. Judges did not add their own names or
the names of representatives to these surveys. Across the 10 sites, we
received surveys for 68 percent of the hearings that took place during
the survey period in which the claimant had representation. The hearing
sites at which we deployed the survey were purposefully selected and
the results cannot be generalized. Our survey does not assess how
judges across all of SSA's hearing offices nationally view
representatives' performance.
Site Selection Criteria:
We used several criteria to select 10 offices from the 140 hearing
offices administered by SSA's Office of Disability Adjudication and
Review (ODAR). Because we wanted to ensure a sufficient number of
survey responses on the performance of eligible nonattorneys (those
participating in the demonstration project), our most important
criterion was the number of hearings held at each office in which the
representative was an eligible nonattorney. We used SSA's CPMS database
and the list of eligible nonattorneys provided by SSA to estimate the
number of hearings held in each office nationally since late 2003 in
which the representative was an eligible nonattorney. We then ranked
the hearing offices according to this estimate. Another key factor in
our site selection was geographic diversity, and among the hearing
offices with the most appearances by eligible nonattorneys we chose
sites in 5 of ODAR's 10 regions. Finally, we also based our site
selection on input from SSA officials on whether certain hearing
offices would be well suited to participating in the survey effort--for
example, we avoided offices that had recently experienced transitions
in their management. (See table 3 for a list of the 10 selected sites
and their key characteristics.)
Table 3: Hearing Offices Selected for ALJ Survey:
Hearing office: Charleston, South Carolina;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 10;
SSA region: 4.
Hearing office: Charleston, West Virginia;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 16;
SSA region: 3.
Hearing office: Dallas (Downtown), Texas;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 9;
SSA region: 6.
Hearing office: Fort Worth, Texas;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 2;
SSA region: 6.
Hearing office: Kingsport, Tennessee;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 18;
SSA region: 4.
Hearing office: Minneapolis, Minnesota;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 5;
SSA region: 5.
Hearing office: Orlando, Florida;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 3;
SSA region: 4.
Hearing office: San Antonio, Texas;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 1;
SSA region: 6.
Hearing office: Tulsa, Oklahoma;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 12;
SSA region: 6.
Hearing office: Voorhees, New Jersey;
National ranking in number of hearings in which representative was
eligible nonattorney, December 2003-October 2006[A] (out of 140
offices): 23;
SSA region: 2.
Source: GAO analysis of CPMS data.
[A] CPMS includes data on hearings back to December 2003, and we
obtained the CPMS data available as of October 2006.
[End of table]
Before administering the survey, we took several steps to ensure the
success of the survey instrument and the administration method. For
example, we pretested the survey with several judges to ensure that the
questions were comprehensible and covered the major aspects of
disability representation. Also, we pretested the survey and deployment
approach at two hearing offices--San Antonio, Texas, and Birmingham,
Alabama--between December 4 and December 15, 2006. On the basis of the
results of this initial implementation phase, we adjusted our survey
instrument and the method of administration used when the survey was
implemented in all 10 sites. We incorporated the pretest data from San
Antonio into our final survey results, but did not incorporate the
pretest data from Birmingham because the way we asked judges to respond
during that pretest did not match the way we asked judges to respond in
the final survey.
Response Rate:
In general, we implemented the survey in all 10 sites between January
29 and February 23, 2007.[Footnote 18] We worked closely with hearing
office directors and other administrative staff to implement the
surveys. We sent each office blank surveys and a list of eligible
nonattorneys. Hearing office staff agreed that before each hearing
during the survey period in which the claimant had representation,
hearing office staff would determine the type of representative
(attorney, eligible nonattorney, or ineligible nonattorney), indicate
the representative type on a blank survey, and provide the survey to
the relevant judge. After the hearing, judges would complete the paper
surveys and return them to hearing office staff, who would return the
surveys to us. Because of the approach we took, individual judges and
representatives were not identified in our survey data, allowing judges
more freedom to provide an honest appraisal. We calculated an aggregate
response rate by comparing the total number of surveys we received from
all 10 sites during the survey period to administrative data provided
by SSA on the total number of hearings held in the 10 sites in which
the claimant had representation (see table 4).
Table 4: Total Responses and Response Rate for Survey of ALJs:
Attorneys;
Responses: 1,606;
Hearings with representation: [Empty];
Response rate: [Empty].
Eligible nonattorneys;
Responses: 194;
Hearings with representation: [Empty];
Response rate: [Empty].
Ineligible nonattorneys;
Responses: 156;
Hearings with representation: [Empty];
Response rate: [Empty].
Total;
Responses: 1,956;
Hearings with representation: 2,872;
Response rate: 68%.
Source: SSA data and GAO analysis.
Note: Data for hearings by representative category were not provided;
therefore, response rates were not calculated for individual
categories.
[End of table]
Assessment of CPMS Data Reliability:
We used data from SSA's Case Processing Management System to draw
samples of attorneys and ineligible nonattorneys and to select sites
for the ALJ survey. To assess the reliability of the CPMS data, we
reviewed SSA documentation such as the data dictionary, interviewed
knowledgeable agency officials, and performed electronic testing of
certain data. We found some limitations with the data, for example, the
lack of a unique identifier with which to generate a unique list of
representatives. However, we judged the data we used to be sufficiently
reliable for the purposes of our reporting objectives.
Interviews with ALJs:
In addition to asking judges in 10 hearing offices to complete surveys
on representatives' performance, we also conducted phone interviews
with judges at some of these same offices. We interviewed 20 judges in
eight offices: Charleston, South Carolina; Charleston, West Virginia;
Fort Worth, Texas; Kingsport, Tennessee; Minneapolis, Minnesota;
Orlando, Florida; Tulsa, Oklahoma; and Voorhees, New Jersey. We asked
these judges about the performance of different types of
representatives, as well as about other topics, including the
eligibility criteria for nonattorneys to participate in the
demonstration project and the implications of extending fee withholding
to the SSI program.
Interviews with Disability Claimants:
To assess disability claimants' satisfaction with different types of
representatives, we conducted phone interviews with 30 claimants who
had had representation at their hearings: 10 represented by attorneys,
10 represented by eligible nonattorneys, and 10 represented by
ineligible nonattorneys. These claimants had attended hearings at 3 of
the 10 hearing sites that participated in our survey of judges: the
hearing offices in Dallas (Downtown), Fort Worth, and Orlando. They
included individuals applying for DI benefits, SSI benefits, and both
DI and SSI. We asked claimants about their overall satisfaction with
their representative and about their satisfaction with their
representative's performance in specific areas, such as the
representative's efforts to help them understand the disability
application process and the representative's responsiveness to their
questions and concerns.
We obtained from hearing office staff the names and contact information
for claimants who had had hearings recently, as well as information on
the type of representative who had assisted them. We attempted to call
71 claimants and successfully completed interviews with 30 of them (42
percent). Reasons we could not complete interviews included that
claimants refused to participate and that the phone number provided by
the hearing office was disconnected. Among the claimants who did
complete interviews, in almost all cases we called soon enough after
the claimants' hearings that they did not yet know the outcomes of
their claims.
Questions for States on Interim Assistance Reimbursement:
To gain an understanding of fees paid to representatives by states, we
sent questions regarding these fees by e-mail to state officials. We
contacted officials in the 38 states and the District of Columbia that
have interim assistance reimbursements agreements with SSA (agreements
that allow the state to be reimbursed out of a claimant's past-due
benefits for interim assistance it provides to the claimant while the
claim is pending). Twenty-nine states responded to our questions. In
addition, we interviewed officials in 7 of the states by phone. We
selected these states based on a variety of factors, including the
amount paid for interim assistance and whether SSA officials reported
the existence of informal state efforts to coordinate payments to
representatives.
Assessment of SSA's Analysis of Administrative Data:
To assess the effect of interim assistance reimbursements on SSA's
ability to pay representatives' fees, we reviewed an analysis performed
by SSA in January 2005. As noted in the discussion of representative
overpayments, SSA analyzed a sample of cases from the Supplemental
Security Record (SSR), which contains administrative data on the SSI
program. The agency examined whether there were any cases in this
sample in which, after reimbursing a state for interim assistance
payments out of the claimant's past-due benefits, there might not be
sufficient benefits remaining to withhold and directly pay the
representative's full fee. We found that SSA's approach was logical and
that the computer program it used to conduct the analysis was sound. We
also assessed the reliability of the SSR data used in the analysis by
interviewing agency officials and reviewing related documentation, and
found these data to be sufficiently reliable for the purpose of our
reporting objective.
Incomplete Data on Representatives' Compensation:
The Social Security Protection Act of 2004 directs GAO to study the
characteristics of different types of disability claimant
representatives, including the amount and the method of payment of any
compensation paid to representatives. However, we are unable to provide
all of the requested information on representatives' compensation. On
the basis of our surveys, we do report some information on the method
of compensation--specifically, the extent to which attorneys and
eligible nonattorneys utilize withholding. But we do not report data on
the amount of compensation paid to different types of representatives.
We did not ask questions about the amount of compensation received on
our surveys of representatives, because we judged that these questions
would be too sensitive to produce reliable information. Also, complete
compensation data are not available through SSA's administrative
databases. SSA collects some data on the amount of fees withheld and
directly paid to attorneys and eligible nonattorneys, but at the time
of our study this information was limited in several ways. For example,
it was not broken out between fees paid to attorneys and fees paid to
eligible nonattorneys. Furthermore, while SSA also collects some data
on the amount of fees authorized for representatives, there may be some
problems with the reliability of these data, and the agency was not
able to provide us with this information because of limitations in how
the data are collected.
Data Not Available to Isolate Impact of Representation on Claim
Outcomes:
The Social Security Protection Act of 2004 directs GAO to assess the
effectiveness of the different types of representatives by examining
the outcomes of disability claims handled by each representative type,
adjusted for other factors that also affect claim outcomes. We
considered using SSA administrative data to perform a regression
analysis in which we would isolate the impact of different types of
representatives on claim outcomes, after controlling for claimant
characteristics and other factors that affect outcomes. However, after
investigating the data available in several SSA databases, we decided
that it is not possible to conduct a regression analysis that provides
useful information on the relative effectiveness of attorneys, eligible
nonattorneys, and ineligible nonattorneys. The available data do not
include complete and reliable information on claimant characteristics
that affect claim outcomes, such as severity of impairment, so it is
not possible to isolate the impact of representative type from these
other factors.
SSA in the past collected data on some of these key claimant
characteristics. However, this data collection effort has been
discontinued, and the way in which these data were collected would not
have permitted the identification of eligible nonattorneys--our group
of interest.
[End of section]
Appendix II: Nonattorney Representatives' Highest Level of Education:
Table: Nonattorney Representatives' Highest Level of Education:
Percent.
Highest level of education: Graduate degree;
Eligible nonattorneys: 34;
Ineligible nonattorneys who represent claimants professionally: 26;
Ineligible nonattorneys who are claimants' relatives and friends: 12.
Highest level of education: College degree;
Eligible nonattorneys: 45;
Ineligible nonattorneys who represent claimants professionally: 51;
Ineligible nonattorneys who are claimants' relatives and friends: 32.
Highest level of education: Some college;
Eligible nonattorneys: 18;
Ineligible nonattorneys who represent claimants professionally: 17;
Ineligible nonattorneys who are claimants' relatives and friends: 28.
Highest level of education: High school diploma;
Eligible nonattorneys: 3;
Ineligible nonattorneys who represent claimants professionally: 6;
Ineligible nonattorneys who are claimants' relatives and friends: 17.
Highest level of education: Less than high school;
Eligible nonattorneys: 0;
Ineligible nonattorneys who represent claimants professionally: 0;
Ineligible nonattorneys who are claimants' relatives and friends: 11.
Source: GAO surveys of representatives.
Note: The responses provided by both groups of ineligible nonattorneys
regarding their highest level of education are population estimates and
are subject to sampling errors of no more than plus or minus 11
percentage points. Because most eligible nonattorneys completed our
survey, the data presented are not estimates and, therefore, are not
subject to sampling errors. Percentages may total more than 100 due to
rounding.
[End of table]
[End of section]
Appendix III: Geographic Distribution of Representatives by Type:
Table: Geographic Distribution of Representatives by Type:
Percent.
Geographic regions: Midwest;
Attorneys: 24;
Eligible nonattorneys: 17;
Ineligible nonattorneys: 21.
Geographic regions: Northeast;
Attorneys: 25;
Eligible nonattorneys: 9;
Ineligible nonattorneys: 21.
Geographic regions: South;
Attorneys: 39;
Eligible nonattorneys: 63;
Ineligible nonattorneys: 34.
Geographic regions: West;
Attorneys: 12;
Eligible nonattorneys: 12;
Ineligible nonattorneys: 25.
Source: GAO analysis of SSA's list of eligible nonattorneys and the
CPMS database.
Note: The four geographic regions (Midwest, Northeast, South, and West)
are those used by the U.S Census Bureau. Some attorneys and ineligible
nonattorneys may be misclassified since the data source for this
analysis incorrectly coded some attorneys as nonattorneys and some
nonattorneys as attorneys. Percentages may total more than 100 due to
rounding.
[End of table]
[End of section]
Appendix IV: Comments from the Social Security Administration:
Social Security:
The Commissioner:
September 14, 2007:
Mr. Dan Bertoni:
Director, Education, Workforce and Income Security Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, D.C. 20548:
Dear Mr. Bertoni:
Thank you for the opportunity to review and comment on the Government
Accountability Office (GAO) draft report, "SSA Disability
Representatives: Fee Payment Changes Show Promise, but Eligibility
Criteria and Representative Overpayments Require Further Monitoring"
(GAO-08-5). The attached comments provide specific responses to the
recommendations and identify technical corrections that should be made
to enhance the accuracy of the report.
If you have any questions, please contact Ms. Candace Skurnik,
Director, Audit Management and Liaison Staff, at (410) 965-4636.
Sincerely,
Signed by:
Michael J. Astrue:
Enclosure:
Social Security Administration:
Baltimore MD 21235-0001:
Comments On The Government Accountability Office (GAO) Draft Report,
"SSA Disability Representatives: Fee Payment Changes Show Promise, But
Eligibility Criteria And Representative Overpayment Require Further
Monitoring" (GAO-08-5):
Thank you for the opportunity to review and provide comments on this
draft report. We find the report to be well-balanced and very thorough.
First, we would like to note that we are proud of the innovative work
that went into the timely implementation of Sections 302 and 303 of the
Social Security Protection Act (SSPA) of 2004. Particularly with
respect to the direct pay demonstration project for non-attorneys, the
Social Security Administration (SSA) had little or no experience with
many of the activities required to implement this demonstration
project. We are pleased that all of our efforts have been generally
well-received.
We are also pleased that you found that the implementation of the fee
withholding process has gone well and had the intended effects. We
would like to note that the statements made by some of the SSA
interviewees related to representative performance are their opinions
and do not represent the official position of the Agency.
Our responses to the specific recommendations are provided below.
Recommendation 1:
The Commissioner of Social Security should monitor the effectiveness of
the nonattorney eligibility criteria in continuing to ensure that only
well-qualified representatives receive access to fee withholding, and
if necessary adjust the experience standard or other criteria.
Comment:
We agree. We believe that requiring applicants to meet all of the
eligibility criteria, including passing an examination testing the
applicant's knowledge of relevant provisions of the Social Security Act
and regulations, in addition to the representational experience
requirement, ensures that only well-qualified representatives receive
access to fee withholding. However, if direct payment to non-attorneys
is extended beyond March 2010, we will review the eligibility criteria
to determine if adjustments need to be made.
Recommendation 2
The Commissioner of Social Security should assess the extent to which
representatives collect more than their authorized fee through a
combination of state payments and fee withholding, and if necessary,
identify and implement cost-effective solutions to ensure that
representatives either are not paid more than their authorized fee or
return anything they receive in excess of their authorized fee.
Comment:
We agree. Withholding and direct payment of fees to representatives in
Title XVI claims is scheduled to sunset in March 2010. If direct pay to
representatives becomes permanent, we will work with the States to
ensure that representatives do not receive fees in excess of that
approved by SSA for services performed before SSA.
Recommendation 3:
The Commissioner of Social Security should continue to explore cost-
effective changes that would address Supplemental Security Income (SSI)
benefit payment delays related to fee withholding in cases where
recipients receive both SSI and Disability Insurance (DI) benefits.
Comment:
We agree. A proposal to modify SSA systems has been funded for fiscal
year (FY) 2008 that should reduce the delay currently experienced by
some Title II and Title XVI beneficiaries in receipt of their Title XVI
underpayment due to direct payment of fees in Title XVI.
[End of section]
Appendix V GAO Staff Contact and Acknowledgments:
GAO Contact:
Daniel Bertoni, (202) 512-7215, bertonid@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Melissa Emrey-Arras, Lorin
Obler, Amy Sweet, Kathryn O'Dea, Kathleen Padulchick, Robert Robertson,
Brett Fallavollita, Susan Bernstein, Carl Barden, Stuart Kaufman,
Minette Richardson, Daniel Schwimer, Vanessa Taylor, Walter Vance, and
Joan Vogel made key contributions to this report.
[End of section]
Related GAO Products:
Social Security Administration: Agency Is Positioning Itself to
Implement Its New Disability Determination Process, but Key Facets Are
Still in Development. GAO-06-779T. Washington, D.C.: June 15, 2006.
Federal Disability Assistance: Wide Array of Programs Needs to Be
Examined in Light of 21st Century Challenges. GAO-05-626. Washington,
D.C.: June 2, 2005.
Social Security Administration: More Effort Needed to Assess
Consistency of Disability Decisions. GAO-04-656. Washington, D.C.: July
2, 2004.
Social Security Disability: Commissioner Proposes Strategy to Improve
the Claims Process, but Faces Implementation Challenges. GAO-04-552T.
Washington, D.C.: March 29, 2004.
SSA Disability Decision Making: Additional Steps Needed to Ensure
Accuracy and Fairness of Decisions at the Hearing Level. GAO-04-14.
Washington, D.C.: November 12, 2003.
SSA Disability Decision-Making: Additional Measures Would Enhance
Agency's Ability to Determine Whether Racial Bias Exists. GAO-02-831.
Washington, D.C.: September 9, 2002.
Social Security Disability: Efforts to Improve Claims Process Have
Fallen Short and Further Action Is Needed. GAO-02-826T. Washington,
D.C.: June 11, 2002.
Social Security Disability: Disappointing Results from SSA's Efforts to
Improve the Disability Claims Process Warrant Immediate Attention. GAO-
02-322. Washington, D.C.: February 27, 2002.
Social Security Administration: Information Systems Could Improve
Processing Attorney Fee Payments in Disability Program. GAO-01-796.
Washington, D.C.: June 29, 2001.
Social Security Administration: Systems Support Could Improve
Processing Attorney Fee Payments in the Disability Program. GAO-01-
710T. Washington, D.C.: May 17, 2001.
Social Security Administration: Paying Attorneys Who Represent
Disability Applicants. GAO/T-HEHS/AIMD-00-166. Washington, D.C.: June
14, 2000.
Social Security: Review of Disability Representatives. GAO/HEHS-99-
50R. Washington, D.C.: March 4, 1999.
Footnotes:
[1] Prior to the act, attorneys had access to fee withholding for all
claims arising under Title II of the Social Security Act, including Old
Age and Survivors Insurance as well as DI claims. Under the act,
eligible nonattorneys similarly have access to fee withholding for all
claims arising under Title II. However, in this report we focus on
representatives involved in DI and SSI claims.
[2] In March 2006, SSA issued a final rule establishing a number of
changes to its disability determination process. These changes include
the replacement of the DDS reconsideration stage with a review by a
federal reviewing official and the elimination of the Appeals Council.
SSA initially implemented these changes only in its Boston region,
starting in August 2006. However, as of 2007, these changes have been
put on hold while SSA examines the program to determine which portions
need to be adjusted and which portions can continue to be implemented.
[3] Only attorneys may represent claimants in appeals to the federal
courts.
[4] Because of the approximately 500-day time lag between requesting a
hearing and receiving a decision from an ALJ, data on representation at
hearings in a given fiscal year may not reflect claimants' decisions
about securing representation during that fiscal year. For example,
claimants with hearings during fiscal year 2006 may have requested a
hearing and secured representation during fiscal years 2004 or 2005. As
the fee withholding changes were implemented in February 2005, any
effects of these changes on claimants' decisions about securing
representation would likely be seen in representation data for fiscal
year 2007 or later.
[5] n general, past due benefits are the total amount of benefits due
to claimants (and their spouses and dependents, if eligible) that have
accumulated from the month in which the claimant was determined to be
entitled to benefits up to the month before effectuation of a favorable
disability decision for DI claims and the month of effectuation for SSI
claims.
[6] We surveyed all 343 nonattorneys who had met the eligibility
criteria and were demonstration project participants as of August 2006
and received an 88 percent response rate. For more detailed information
on this survey, see appendix I.
[7] We also surveyed random probability samples of 494 representatives
coded as attorneys and 491 representatives coded as ineligible
nonattorneys who represented disability claimants at the hearing level-
-and we received an overall response rate of 47 percent. All percentage
estimates from the survey have margins of error of plus or minus 10
percentage points or less, unless otherwise noted. Specific margins of
error for numerical estimates are described in footnotes and table
notes. Because only representatives who have appeared at hearings were
surveyed, representatives who work at the initial and reconsideration
levels may be underrepresented. While the extent of representation at
the initial and reconsideration level is unknown, our survey results
indicate that both attorneys and nonattorneys work on cases prior to a
hearing. In fact, ineligible nonattorneys who represent claimants
professionally begin representing the majority of their claimants at
the initial and reconsideration levels. For more detailed information
on this survey, see appendix I.
[8] Administrative law judges from the following hearing offices
participated in our survey: Charleston, South Carolina; Charleston,
West Virginia; Dallas (Downtown), Texas; Fort Worth, Texas; Kingsport,
Tennessee; Minneapolis, Minnesota; Orlando, Florida; San Antonio,
Texas; Tulsa, Oklahoma; and Voorhees, New Jersey. We asked the judges
to complete a survey on the representative's performance after each
hearing they presided over in which the claimant had representation,
over a 4-week period (January 29 to February 23, 2007, for most
judges). The surveys we received did not identify either the judge or
the representative being assessed. We obtained a response rate of 68
percent. See appendix I for more details on this survey.
[9] We conducted phone interviews with 30 disability claimants who had
recently attended a hearing with the assistance of a representative in
one of three hearing offices: Dallas (Downtown), Texas; Fort Worth,
Texas; and Orlando, Florida. We were able to complete interviews with
about 40 percent of the claimants whom we contacted. Of the claimants
we interviewed, almost all were unaware of the outcome of their claim
at the time of the interview. SSA conducted over 500,000 hearings
during fiscal year 2006. We cannot generalize from the results of our
interviews to the experiences of all claimants who participated in
hearings nationwide. See appendix I for more details on these
interviews.
[10] We asked claimants about their representatives' performance in
several specific areas of disability representation: helping claimants
understand the disability application process, collecting medical
evidence, preparing claimants for their hearing, performance during the
hearing, and responding to the claimant's questions and concerns.
[11] This assistance is provided by states to help claimants meet basic
needs, such as shelter, while their application is pending and is
distinct from the state SSI supplement. Payments in states where we
interviewed officials ranged from $100 to over $700 per month.
[12] According to a January 2005 analysis conducted by SSA, in almost
all cases, there are enough past-due benefits for SSA to pay the
representative's full fee even after the state is reimbursed for
interim assistance. Therefore, any fee paid by the state in a fee
withholding case would almost always result in the representative
collecting more than the SSA-authorized fee.
[13] The fee structure varies from state to state--for example, the fee
may be the SSA-authorized fee or a percentage of the interim assistance
reimbursement received by the state.
[14] SSI benefits are based on a claimant's income, as well as other
requirements, and DI benefits are considered income. Therefore, when a
claimant receives DI benefits for all or some of the months for which
he or she is owed SSI benefits, the SSI benefits must be reduced. This
is an adjustment known as the windfall offset. In practice, however,
because receiving SSI benefits makes claimants eligible for the
Medicaid program, the reverse happens: The agency pays the claimant the
SSI benefits first, and reduces the amount of DI benefits by the
windfall offset amount. The claimant still receives the same amount of
total benefits as if the SSI benefits had been reduced instead of the
DI benefits.
[15] In some cases, the full amount of the fee may have been paid out
of the DI past-due benefits and therefore the claimant may not have
needed to pay the representative out of the SSI past-due benefits.
[16] While we asked attorneys if they had represented more SSI
claimants as a result of the availability of fee withholding, we did
not ask this same question on our survey of eligible nonattorneys, who
were newly eligible for fee withholding in both SSI and DI cases.
[17] When the percentages of nonrespondents with an incorrect phone
number and those with both an incorrect mailing address and phone
number are added, the total is 43 percent.
[18] Judges in the San Antonio hearing office participated in the
survey for a total of 4 weeks: 2 weeks during the pretest period, and
then another 2 weeks from February 5 to 16, 2007.
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