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March's Monthly Rant

by David R. Bryant



ATTORNEY FEES & ALTERNATIVES

THE SOCIAL SECURITY CANNOT have it both ways. Either change the law or follow it. Unless Marbury v. Madison has been strictly limited, the Executive Branch still must follow the law Congress passed as interpreted by the Courts.

A. Aside from a brief attempt at Acquiescence in the 80’s, SSA has reverted to "It's –A- Natural -Program- Stupid" argument. This in spite of the IRS having a similar "national" program that also has differences between Circuits….But such reality does not resonate in the SSA world-proclaiming a uniform set of standards for deciding "disability."

B. SSA, in an attempt to balance the budget, has adopted certain cost reimbursements measures to enhance the revenue base of the Disability Trust Fund. In particular, the attorneys will be charged for processing a fee petition with what's being called a "user fee." Under a March 11 draft bill the Commissioner would be authorized to assess a fee to a "person who renders services for compensation in connection with a claim to entitlement to [Social Security] benefits" when a representative's fee is approved under 42 U.S.C. § 406. The fee would be $165 when there is direct payment of the attorney's fee or $40 in any other case, like a fee approval.

In practical terms, this "cost" will be shifted to clients. Those attorneys who accept "poor" (i.e. SSI claimants) clients will be stuck and pass the cost onto "rich" clients. The other alternative is to pawn off the poor on unsuspecting legal aid programs or dumb young idealistic attorneys who are underutilized.

Two suggestions. Hit the client directly and charge a "filing fee" as in any Court for Hearings. Somewhere in the $25.00 to $50.00 range (with "in forma pauperis" exceptions) would seem reasonable. Just make sure the OHA gets the money rather than ODO/IO.

Second, SSA should send the back benefit check to the attorney of record payable to both the client and attorney. This is called a two party check and is the standard in the personal injury/tort practice. Why can’t SSA (which is a BIG insurance co.) adopt standard business practice? There is no valid excuse for lack of software. SSA already cuts two party checks to Rep. Payees.

  1. These arguments have been made before. Yet no one in Congress will accept blame, or responsibility for correcting a pay as you go system that faces bankruptcy. Their answer is another Commission Another Study. Except for the Greespan Commission, SSA has not had one Study that produced positive legislation in the form suggested by such studies.

As originally suggested, uniform standards in a billion dollar a day program are hard to find in a Marbury v. Madison environment. If I don’t bite down too hard on my tongue-in-cheek. I would suggest to SSA that Congress abolish all smoking related illness (lung cancer, etc.) as a basis for disability; much the same way Congress abolished substance abuse as a disabling illness. This would reinforce the current anti-tobacco climate and save the Disability Trust Fund (not to mention Medicare) an enormous amount of money. Not good? Why?

You want to save money Mr(s) congressperson? Apply the "offset" provisions to VA Benefits, personal injury verdicts and any private LTD policies. This nickel and dime approach to attorneys is a gutless suggestion that approaches bad shark-attorney jokes at cocktail parties. Of course, Mr(s) Congressperson may offend the American Legion, the Disabled Americans Veterans, the American Trial Lawyers Association, the American Council of Insurance Carriers – amongst others.

Small oxen, like SSA attorneys, are easier to gore. Let me know what you think.

- David R. Bryant

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