Jennifer Cronenberg, NOSSCR Senior Counsel and Director of Legal Information

This month saw the publication of two highly-anticipated rules in the Federal Register: 1) Changes to the Administrative Rules for Claimant Representation and Provisions for Direct Payment to Entities, and 2) Setting the Manner of Appearance of Parties and Witnesses at Hearings.

There is a lot to unpack with both of these rules, and NOSSCR will be offering more in-depth analysis and trainings as we learn more and as the updated forms become available. For now, I will answer a few of the most commonly asked questions and give a quick overview.

Direct Payment to Entities

Q. Will my firm be able to register as a representative with its own ERE account?

A. No, the agency stopped short of recognizing the firm as the representative. Instead, they created a process where representatives will be able to assign fees directly to a firm or other entity.

Q. Will a firm be able to stop a representative from severing the assignment (if, for example, the representative leaves the firm on bad terms and tries to take clients with him)?

A. There is nothing within the agency’s rules that prevents a representative from severing the assignment prior to a favorable decision. We recommend structuring your employment contracts with representatives such that there is a business solution for this problem.

Like you, we still have outstanding questions on the implementation of these changes. We have been meeting with SSA senior staff to obtain answers to the following questions, and expect to have responses soon:

• When will the new 1696, 1699, and 1694 be available?
• Is it true that even non-profit and legal aid representatives must complete and submit the updated SSA-1699 even though they do not plan to collect any fees?
• Is there a deadline for representatives to complete the 1699 registration step?
• Should the 1699 be faxed to the Office of Central Operations at 1-877-268-3827?
• When all firms re-register by completing an updated SSA-1694, where and by what method should they submit this form?
• Where should representatives follow-up to ensure that their registrations and their firm’s re-registrations have been properly processed?
• If representatives previously submitted non-signed 1696s, do they need to replace these with signed 1696s in each case?
• If representatives wish to assign fees to an entity for pending cases, do they need to submit new 1696s for each pending case?
• If yes, is there a process in place for accomplishing this efficiently?

We will update you as soon as we have answers to these questions.

Hearing Modalities

Q. Will my claimant be able to object to an in-person hearing?

A. No. SSA left in-person hearings as one of the default options for the agency without providing the opportunity for claimants to object. This means that OHO/ALJs can schedule in-person hearings even if the claimant has not objected to an audio hearing. HOWEVER, as OHO Deputy Commissioner Lytle noted in March, audio and online video options “continue to be easy and secure options and result in improved public service and overall efficiency.” Lytle continued by noting that “remote hearings allow us to leverage judicial capacity and balance hearing requests around the country.” Thus, it is our expectation that if a claimant does not object to an audio hearing (and/or if a claimant opts-in to an online video hearing) the agency will typically default to audio/online video instead of in-person.

Q. If my claimant wants an audio hearing, is there anything that I need to do to indicate this?

A. No. Audio hearings are one of the default options that the agency can choose. The claimant does not need to do anything if she is willing to accept an audio hearing. However, if the claimant wants to avoid an agency video (formerly “VTC”) hearing, the claimant should still return the new “Revised Objection to Appearing by Video Teleconferencing” form indicating this objection. In other words, you do not need to opt-in to audio hearings, but you do still need to opt-out of agency video hearings.

Again, we are waiting for the release of SSA’s updated forms. Once we have those, we will offer a quick training to review the options and to discuss best practices.

We know that neither of these polices are perfect, but they both substantially improve and clarify current policy. It is our hope that once both policies are fully in effect, your business operations will run more smoothly. And remember, we are always here to answer your questions and help you troubleshoot complex issues. You can reach me at jennifer.cronenberg@nosscr.org.