I answer the questions from the NOSSCR conference in Las Vegas

OctoberConference

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Ethics

In this blog, I answer the questions that did not get the attention and time in a 60 minutes ethics presentation.  The list of questions illustrate that we ranged from submission of adverse evidence, to fee sharing, to use of contract associates, and nuts and bolts aspects of the practice of when to sign the form 1696.  I hope that those that attended, listened, or just read the materials from the NOSSCR conference find these materials helpful.  

Session Report

Generated on November 6, 2014

Social Q&A

8upvotes	Is the payment of referral fees permissible  in Social Security Matters? See my blog at here.
8upvotes	Should I advise my client of the ALJ's approval rate before the hearing? The attorney owes a duty of fidelity to his/her client. If telling the client falls into that fidelity, then yes.  I don’t look them up and don’t care what an ALJ approval rating is.  It doesn’t make a different to me how much an ALJ pays when I am presenting my case.
7upvotes	Can you make your power point available to us? I will see if I can make it available.
6upvotes	In the Medical Records class yesterday, he said that submitting records electronically is against HIPPA rules because they are not encripted. Now what? Is the use of encryption mandatory in the Security Rule? No. The final Security Rule made the use of encryption an addressable implementation specification. See 45 CFR § 164.312(a)(2)(iv) and (e)(2)(ii). The encryption implementation specification is addressable, and must therefore be implemented if, after a risk assessment, the entity has determined that the specification is a reasonable and appropriate safeguard in its risk management of the confidentiality, integrity and availability of e-PHI. If the entity decides that the addressable implementation specification is not reasonable and appropriate, it must document that determination and implement an equivalent alternative measure, presuming that the alternative is reasonable and appropriate. If the standard can otherwise be met, the covered entity may choose to not implement the implementation specification or any equivalent alternative measure and document the rationale for this decision. The link is here.
5upvotes	Payment of $600 to local counsel to attend hearing, with consent, 1696, but no Alj approval of $600, ethical to take $600? If the person received a fee for representing a claimant before the Social Security Administration and that person does not have an authorization to charge and receive a fee, then the payment and the receipt violates 42 U.S.C. § 406(a) and the regulations.
5upvotes	So, are you saying that a representative cannot do a contract hearing for another law office, if they are expecting to be paid? Agency policy states: Contains the exceptions to the fee authorization process:  The claimant and any affected auxiliary beneficiaries are free of direct or indirect liability to pay a fee or expenses, either in whole or in part, to a representative or to someone else, AND- The third-party entity that actually pays the representative's fee and expenses, is a business, firm, association, partnership, corporation, for-profit or not-for-profit organization, or a government agency that is paying from its own funds, AND- The representative submits to us a form SSA-1696-U4 (or a written statement) waiving the right to charge and collect a fee and any expenses from the claimant and affected auxiliaries, if any, in the form and manner described below: Complete Part III of the SSA-1696-U4 by checking the box “Waiving fees and expenses from the claimant and any auxiliary beneficiaries” and providing signature and date, or Submit a written statement that clearly and unequivocally states that the representative intends to receive a fee from a third-party entity and that the claimant and any auxiliary beneficiary are not directly or indirectly responsible for payment of the fee; and if eligible for direct payment, or Sign the “Waiver of Fee” section of the SSA-L- 1697-U3 It is available here.
5upvotes	Prior attorney says she will withdraw and waive. My fee approved and directly paid. Can I pay prior attorney knowing she will not file fee petition? No.  The person misrepresents the waiver of fees to the agency and the claimant and also receives an unauthorized fee.
4upvotes	Non-attorney reps have no "attorney/client priviledge" or "attorney work product" privilege; right? See 79 Fed. Reg. 9663 (Feb. 20, 2014).  The regulations treat communications with a non-attorney representative the same as with an attorney.  If the communication would have gained the privilege with an attorney, that communication gains that privilege in this context.  ACUS advocated as such.  The “why” is a much longer explanation.
4upvotes	We have three atty's can we put all three names on the 1696. Because we don't know which will do the actual hearing? The agency prefers that representatives use multiple form 1696, one for each representative.  While it may be easier to have the client sign one with all names, it is not impractical to have the client sign three.
4upvotes	If we have a certain CE and he says 70% of people are malingering and had a history of yelling at the mentally ill which often causes them to decompensate , should I advise my client? The proclivity of a physician does not animate the discussion.  The advice is simple:  be honest and forthright with the physician and cooperate fully.  No one expects the conversation to be private, the doctor intends to repeat anything said.
4upvotes	In your example about the adverse medical source statement, the fact that MD met with client and completed form will be in the chart notes. ALJ asks about this at hearing. How respond when form not in record? ; If a party in litigation wishes to withhold evidence as privileged, that withholding is never a secret.  It is part of a privilege log.  Withholding privileged information does not imply secrecy.  Even if the provider did not record the completion of the form, a direct question asking if that provider completed a form requires the honest answer, yes.  Then litigate the privilege.
3upvotes	Is it ethical to have a client sign a blank 1696 and then allow the firm to put whatever representative on file that they choose? The top line of the 1696 states the firm's name, but there is no representative name. A copy of that is kept on file and then just add whatever representative (EDPNA, atty, hearing rep, etc) is needed at the time. Who did the client appoint when signing the form 1696?  Can the firm designate any person of any experience at whim and business considerations?  SSA requires that the claimant appoint a person.  The agency considers the appointment to have occurred on the date that the claimant signed the form 1696.  Filling in the form later with a new name defeats the purpose of the appointment process.  See https://secure.ssa.gov/poms.nsf/lnx/0203910040.
3upvotes	Can a typical 25% or $6000 fee agreement also indicate that you will file a fee petition if the fee agreement is disapproved. (In the event there are no past due benefits). SSA permits tiering of fee agreements.  The HALLEX I-1-2-15 is here.
3upvotes	Can an atty pay a contract associate a flat, non contingent $200 to write an AC memo, plus a $100 bonus if the memo gets an AC remand? Further, if the admin atty wins benefits at the remand hearing, may he pay the contract associate 10% of the 406a fee? The contract assoc is not on the 1696. Dealing with California rules, your jurisdiction may vary.  The circumstance described uses the phrase “contract associate” – not a term used in these discussions.  If the person is truly a member of the firm, either an employee or a principal, then the financial arrangements described meet the ethical considerations.  If the “contract associate” is not a member of the firm, then the ethical considerations come into play.  See e.g., article from the California Lawyer Magazine here.  The ethics ruling for California is here.  The key rests in disclosure and consent of the client.  But the agency sits in parens patriae to the claimant to protect the claimant against the representative.  Therefore, SSA must also receive both disclosure and consent to the fee splitting.  The ABA Model Rule 1.5(e) provides for a similar result: (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. Disclosure and consent are required.  Under the California ethics rule, paying a contract attorney a flat fee regardless of the outcome and/or receipt of payment might be permissible but not a payment based on any contingency.  That requires disclosure and consent.
3upvotes	I am admin attorney on unfavorable decision from ALJ and AC and case goes up to federal court and remanded back from FDC. Other atty does FDC case. I play no part in the FDC case. At remand hearing we win. There are 406b fees and FDC atty wants to give me 50% of 406b fees. I've already received $6000 fee. Can I take 50% of 406b? See the answer to the prior question.  Disclosure and consent of the client.  Here, the Court sits in parens patriae on behalf of the plaintiff and the attorneys.  Note, in jurisdictions that permit sharing of disclosed and consented fees that bear a relatioinship to the proportion of the services performed, this may run afoul of ABA Model Rule 1.5(e)(1).  In jurisdictions that permit referral or association fees without regard to proportion of the services rendered, this is more likely to meet muster.  Again, disclosure and consent.
3upvotes	Is having the outsourced rep check the 3rd box at the bottom of the 1696 (waiving fees from the claimant, but charging a 3rd party) enough to meet your ethical obligations? Agency policy states: Contains the exceptions to the fee authorization process:  The claimant and any affected auxiliary beneficiaries are free of direct or indirect liability to pay a fee or expenses, either in whole or in part, to a representative or to someone else, AND- The third-party entity that actually pays the representative's fee and expenses, is a business, firm, association, partnership, corporation, for-profit or not-for-profit organization, or a government agency that is paying from its own funds, AND- The representative submits to us a form SSA-1696-U4 (or a written statement) waiving the right to charge and collect a fee and any expenses from the claimant and affected auxiliaries, if any, in the form and manner described below: Complete Part III of the SSA-1696-U4 by checking the box “Waiving fees and expenses from the claimant and any auxiliary beneficiaries” and providing signature and date, or Submit a written statement that clearly and unequivocally states that the representative intends to receive a fee from a third-party entity and that the claimant and any auxiliary beneficiary are not directly or indirectly responsible for payment of the fee; and if eligible for direct payment, or Sign the “Waiver of Fee” section of the SSA-L- 1697-U3 It is available here. If the criteria of agency policy are met, then the waiver accompanied by a statement that a third party will pay the fees will more likely pass muster.  The problem is whether the claimant has any direct or indirect obligation to pay any fee for any expenses to any person in connection with the claim.
2upvotes	Moderator, would you please just take 10 min right now to systematically go through this list of questions, in order, so we can figure out where you are, and read the questions clearly and precisely while talking into the microphone? Sorry, too late.
2upvotes	I may h ave missed the response to wheter or not you can pay a referral fee. See my blog at here.
10upvotes	Can we please make sure we have time to answer most/all of these questions?? Please!!! Here you are.
1upvote	No offense, we came to get questions answered not to hear about his wife, their kids and his stories!!!!!! No offense, but I use metaphor, similes, and illustrations to make points.  Sorry if those are lost on you.