[Federal Register Volume 70, Number 9 (Thursday, January 13, 2005)]
[Notices]
[Pages 2447-2450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-729]


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SOCIAL SECURITY ADMINISTRATION


Demonstration Project for Direct Payment to Non-Attorney 
Representatives

AGENCY: Social Security Administration (SSA).

ACTION: Notice.

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SUMMARY: Section 303 of the Social Security Protection Act of 2004 
(SSPA), Public Law No. 108-203, requires the Commissioner of Social 
Security (the Commissioner) to develop and implement a five-year 
nationwide demonstration project that will extend to certain non-
attorney representatives of claimants under titles II and XVI of the 
Social Security Act (the Act) the option to have approved 
representatives' fees withheld and paid directly from a beneficiary's 
past-due benefits. Currently, this option is available only to 
representatives who are attorneys. Non-attorney

[[Page 2448]]

representatives who wish to participate in the demonstration project 
must meet the prerequisites specified in section 303 of the SSPA, and 
any additional prerequisites that the Commissioner may prescribe. The 
purpose of this notice is to provide information about the 
prerequisites that non-attorney representatives will be required to 
satisfy and about our plans for administering the prerequisites 
process. We will post further details about the prerequisites process 
(e.g., when and how to apply) on our Web site at http://www.socialsecurity.gov when they become available.

FOR FURTHER INFORMATION CONTACT: Joanne Butler, Social Security 
Administration, Office of Hearings and Appeals, Suite 1608, 5107 
Leesburg Pike, Falls Church, VA 22041-3255, (703) 605-8314.

SUPPLEMENTARY INFORMATION: Section 303 of the SSPA sets forth certain 
minimum prerequisites that non-attorney representatives must satisfy to 
be eligible to participate in the demonstration project on direct 
payment of fees to non-attorneys, and allows the Commissioner to 
establish additional prerequisites that must be satisfied. Section 303 
also provides that the Commissioner may assess representatives 
reasonable fees to cover our costs in administering the prerequisites 
process.
    In this notice, we provide certain details of the application 
process and announce that satisfaction of a representational experience 
requirement will be an additional prerequisite for participating in the 
demonstration project. The notice also advises the public of the amount 
of the fee that applicants will be assessed. In addition, we provide 
details concerning the specific criteria that we will use to evaluate 
whether the applicant has satisfied the following prerequisites:
     Qualifications equivalent to a bachelor's degree;
     Experience in representing claimants before SSA;
     Liability insurance or equivalent insurance adequate to 
protect claimants in the event of malpractice by the representative;
     Criminal background check that ensures a representative's 
fitness to practice before the Commissioner; and
     Examination testing knowledge of the relevant provisions 
of the Act and the most recent developments in Agency and court 
decisions affecting titles II and XVI of the Act.
    We anticipate that we will use a commercial contractor to assist us 
in determining eligibility to participate in the demonstration project. 
A competitive process for selecting a contractor is underway. We will 
provide updated information regarding the contract award, and further 
information about the prerequisites process (e.g., when and how to 
apply) at our Web site at http://www.socialsecurity.gov.
    The SSPA also requires non-attorney representatives to take 
continuing education classes, including courses in ethics and 
professional conduct. This requirement will pertain to those non-
attorney representatives who have been found eligible to participate in 
the demonstration project. The SSPA gives us the authority to determine 
the minimum amount of continuing education required, and the standards 
for the classes. We intend to issue a subsequent Federal Register 
notice to address this requirement.
    1. Application periods and completion of an application: We intend 
to structure the contract for administering the prerequisites process 
for the five-year demonstration project with an initial year and four 
option years. There will be two application periods during the initial 
year, with the second examination to take place four months after the 
first examination. During the four option years, there will be one 
application period and examination per option year. A non-attorney 
representative who is found not to be eligible to participate during 
one application period will be able to re-apply during any subsequent 
application period.
    A person applying to participate in the demonstration project will 
have to complete an application form. We intend to have the form 
available online at the contractor's Web site for applicants to print 
out, sign (in ink), and submit. Within four weeks of the opening of the 
application period, the applicant must submit a complete application 
package. A complete application package consists of the completed 
application form and:
     Receipt from the applicant's insurance company for 
professional liability coverage or equivalent insurance in the minimum 
amount and type specified by us (see below);
     Official college and/or university transcript(s) showing 
the stamp or raised seal of the institution, or otherwise establishing 
that it is an official copy;
     Official high school transcript or GED certificate or an 
equivalent graduation record from an official source (e.g., board of 
education), if the applicant has not attended a college or university,
     Names and the last four digits of the Social Security 
numbers of five claimants for whom the applicant has provided 
representational services and the dates of such services (see section 
4. below for details); and
     Fee payment of $1000 (see below).
    Persons who fail to have their completed package materials 
postmarked by the application deadline will have their applications 
rejected. However, they may re-apply to participate in the 
demonstration project during a subsequent application period.
    2. Application fee: SSPA section 303(c)(1) provides that the 
Commissioner may assess applicants a reasonable fee to cover the costs 
of administering the prerequisites process. We have determined that:
     The fee will be $1000 (in U.S. dollars) per applicant;
     Applicants must include the fee payment with their 
application package;
     The fee will be non-refundable except in the following 
circumstance: If the contractor fails to administer an examination and 
the failure is due to the contractor's fault, the contractor will be 
required, as a performance penalty, to refund the fee to those affected 
applicants who do not take the rescheduled examination;
     Acceptable forms of fee payment will be by certified 
check, money order, a check drawn from a private firm's account, or 
credit card;
     Applicants will pay their fees to the contractor; and
     Applicants who are not found to be eligible may reapply 
during the next application phase, but they will pay the full fee upon 
reapplying.
    3. Education and equivalent qualifications: SSPA section 303(b)(1) 
establishes a bachelor's degree from an accredited institution of 
higher education as a prerequisite for participating in the 
demonstration project. However, this section also permits applicants 
who do not have a bachelor's degree to satisfy this prerequisite based 
on combinations of training and work experience that the Commissioner 
determines to be equivalent to a bachelor's degree. We have determined 
that any of the following combinations of education and experience 
shall be equivalent to having a bachelor's degree:
     If the applicant does not have a bachelor's degree, but 
has three years or more of undergraduate study at an accredited 
institution of higher learning, the applicant must have at least one 
year of relevant professional experience (as defined below), at least 
six months of which must have involved claims for

[[Page 2449]]

benefits under title II or title XVI of the Act;
     If the applicant has at least two, but less than three 
years of undergraduate study at an accredited institution of higher 
learning, the applicant must have at least two years of relevant 
professional experience, at least one year of which must have involved 
claims for benefits under title II or title XVI of the Act;
     If the applicant has at least one, but less than two years 
of undergraduate study at an accredited institution of higher learning, 
the applicant must have at least three years of relevant professional 
experience, at least two years of which must have involved claims for 
benefits under title II or XVI of the Act; or
     If the applicant has less than one year of undergraduate 
study at an accredited institution of higher learning, or no 
undergraduate education, the applicant must have received a high school 
diploma or GED certificate and have at least four years of relevant 
professional experience, at least two years of which must have involved 
claims for benefits under title II or title XVI of the Act.
    Relevant professional experience (for purposes of establishing 
qualifications equivalent to a bachelor's degree) is work through which 
the applicant has demonstrated familiarity with medical reports and an 
ability to describe and assess mental and/or physical limitations. Such 
experience may be from the fields of: Teaching, counseling or guidance, 
social work, personnel management, public employment service, and/or 
nursing or other health care professional services. Any work involving 
claims for benefits under title II or title XVI of the Act shall also 
be defined as relevant professional experience. We intend to have the 
contractor post on its Web site additional information regarding 
qualifying professional experience.
    An applicant who fails to submit proof of a bachelor's degree or 
equivalent qualifications before the application period closes shall be 
precluded from establishing, based on his or her current application, 
eligibility to take the examination and to participate in the 
demonstration project. However, the applicant may re-apply to 
participate in the demonstration project during a subsequent 
application period.
    An applicant may possess a law degree (e.g., juris doctor); 
however, attorneys who already qualify to have their approved 
representatives' fees paid directly from their clients' past-due 
benefits pursuant to sections 206 and 1631(d)(2) of the Act will be 
ineligible to participate in this demonstration project. In addition, 
attorneys who are suspended or disbarred by a State or Federal court or 
disqualified from appearing before a Federal agency or program will be 
ineligible to participate in this demonstration project.
    4. Representational experience requirement: SSPA section 303(b) 
permits the Commissioner to establish additional prerequisites. We have 
determined that all participants in the demonstration project (with or 
without a bachelor's degree) must have demonstrated experience in 
representing claimants before SSA. Applicants must meet the following 
minimum representational experience requirement:
     The applicant must have provided representational services 
as the appointed representative for five claimants within a 24-month 
period;
     The services may include representing the claimant at the 
time at which SSA decided the case at any administrative level or, in 
cases that have not yet been decided, appearing as the claimant's 
representative at a hearing before an SSA Administrative Law Judge 
(ALJ); and
     The 24-month period must occur within the 60 months 
preceding the month in which the application was filed.
    The following is an example of how to calculate the 24- and 60-
month periods for establishing representational experience:
     The applicant files his or her application in March 2005.
     The 60-month period begins on March 1, 2000, and ends on 
February 28, 2005 (the last day of the month before the filing of the 
application).
     The 24-month period can occur at any time between March 1, 
2000, and February 28, 2005. For example, the applicant would meet the 
requirement if he or she served as the appointed representative for 
five separate claimants during the period from January 2001 through 
December 2002.
    Applicants are required to submit with their applications the names 
and the last four digits of the Social Security numbers of five 
claimants for whom the applicant provided representational services 
during the appropriate 24-month period. Applicants also are required to 
provide the dates of their service for each applicant (e.g., date of 
the hearing before the SSA ALJ).
    5. Insurance requirement: SSPA section 303(b)(3) sets forth a 
requirement that non-attorney participants have professional liability 
insurance, or equivalent insurance, which the Commissioner has 
determined to be adequate to protect claimants in the event of 
malpractice by the non-attorney representative. We have determined that 
applicants must have professional liability insurance for coverage of 
errors and omissions committed by the non-attorney representative, with 
a minimum total annual amount of coverage of $1 million (for all 
incidents in that year) plus coverage of $250,000 per incident. The 
insurance policy must be underwritten by a firm that is licensed to 
provide insurance in the State in which the non-attorney representative 
conducts business. The policy also must provide coverage for 
professional liability insurance claims made in those States in which 
the non-attorney representative represents claimants before us.
    An applicant who fails to submit proof of the required insurance 
before the application period closes shall be precluded from 
establishing, based on his or her current application, eligibility to 
take the examination and to participate in the demonstration project. 
However, the applicant may re-apply to participate in the demonstration 
project during a subsequent application period.
    Non-attorney representatives who establish eligibility to 
participate in the demonstration project will be required to maintain 
their insurance coverage in order to continue to receive direct fee 
payments from SSA.
    6. Criminal background investigation: SSPA section 303(b)(4) sets 
forth a requirement for a criminal background check of each non-
attorney representative who applies to participate in the demonstration 
project to ensure his or her fitness to practice before us. We will 
reject any applicant who:
     Has been suspended or disqualified from practice before 
SSA;
     Has had a judgment or lien assessed against him/her by a 
civil court for malpractice and/or fraud;
     Has had a felony conviction;
     Engages in substantial misrepresentation in submitting his 
or her application and/or supporting materials for the application;
     Fails to pass an SSA administrative records check (check 
of SSN, etc.); or
     Fails to provide documentation as requested by SSA's 
contractor to perform the criminal background investigation.
    An applicant who fails the criminal background investigation will 
have the opportunity to protest that finding to us. Our action in 
response to the protest will be final and not subject to appeal.
    7. Passing an examination: SSPA section 303(b)(2) requires that

[[Page 2450]]

applicants pass an examination testing their knowledge of the relevant 
provisions of the Act and the most recent developments in Agency and 
court decisions affecting titles II and XVI of the Act. With the 
assistance of contractor personnel, we will develop a 40- to 50-
question, multiple choice examination. Examination details are as 
follows:
     A score of 70 will be a passing score;
     The examination instrument will be written in the English 
language only;
     We anticipate that the examination will be administered by 
the contractor and will be given only once, on a weekday, in 
association with each application period;
     During the examination, test-takers will have open-book 
access to certain reference materials that we will supply (see below 
for details);
     The examination will be based upon situations that arise 
from the subject areas contained in the reference materials; and
     Applicants will not be permitted to remove the examination 
instrument from the examination center.
    Open-book reference materials: We will provide each test-taker with 
a copy of 20 CFR Ch. III (most recent edition), and the Compilation of 
the Social Security Laws, Volume 1 (most recent edition). We may 
provide additional materials; if so, we will provide details about the 
materials on the contractor's Web site. Applicants will not be 
permitted to bring any other items (including reference materials) to 
the examination center.
    An applicant who fails to achieve a passing score may re-apply to 
participate in the demonstration project during a subsequent 
application period.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006, 
Supplemental Security Income)

    Dated: December 30, 2004.
Fritz Streckewald,
Assistant Deputy Commissioner for Program Policy for Disability and 
Income Security Programs.
[FR Doc. 05-729 Filed 1-12-05; 8:45 am]
BILLING CODE 4191-02-P