[Federal Register Volume 80, Number 3 (Tuesday, January 6, 2015)]
[Rules and Regulations]
[Pages 395-400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30921]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 80, No. 3 / Tuesday, January 6, 2015 / Rules 
and Regulations  

[[Page 395]]


-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2010-0025]
RIN 0960-AH21


Revisions to Direct Fee Payment Rules

AGENCY: Social Security Administration.

ACTION: Final rules.

-----------------------------------------------------------------------

SUMMARY: We are adopting, with two revisions, our interim final rules 
that implemented amendments to the Social Security Act (Act) made by 
the Social Security Disability Applicants' Access to Professional 
Representation Act of 2010 (PRA). The interim final rules made 
permanent the direct fee payment rules for eligible non-attorney 
representatives under titles II and XVI of the Act and for attorney 
representatives under title XVI of the Act. They also revised some of 
our eligibility policies for non-attorney representatives under titles 
II and XVI of the Act. Based on public comment and subsequent 
inquiries, we are revising our rules to clarify that an eligible non-
attorney representative's liability insurance policy must include 
malpractice coverage. We are also reaffirming that a business entity 
legally permitted to provide the required insurance in the States in 
which the non-attorney representative conducts business must underwrite 
the policies.

DATES: These rules are effective February 5, 2015.

FOR FURTHER INFORMATION CONTACT: Eric Ice, Office of Income Security 
Programs, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 966-3233. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Background

    We published the interim final rules ``Revisions to Direct Fee 
Payment Rules'' on July 28, 2011 (76 FR 45184), and the rules became 
effective on August 29, 2011.\1\ In the preamble to the interim final 
rules, we explained how we would implement the revisions made to the 
Act by the PRA.\2\
---------------------------------------------------------------------------

    \1\ 76 FR 45184.
    \2\ Public Law 111-142, as codified at 42 U.S.C. 406(e).
---------------------------------------------------------------------------

    The PRA established five requirements that non-attorney 
representatives must meet to be eligible for direct fee payment. A 
representative must:
    (1) Have a bachelor's degree from an accredited institution of 
higher education or have been determined by us to have equivalent 
qualifications derived from training and work experience;
    (2) Pass an examination that we write and administer, which tests 
knowledge of the relevant provisions of the Act and the most recent 
developments in Social Security Administration (SSA) and court 
decisions affecting titles II and XVI of the Act;
    (3) Secure professional liability insurance, or equivalent 
insurance, which we determine to be adequate to protect claimants in 
the event of malpractice by the representative;
    (4) Undergo a criminal background check to ensure the 
representative's fitness to practice before us; and
    (5) Demonstrate ongoing completion of qualified courses of 
continuing education, including education regarding ethics and 
professional conduct, which are designed to enhance professional 
knowledge in matters related to entitlement to, or eligibility for, 
benefits based on disability under titles II and XVI of the Act. The 
continuing education courses, and the instructors providing the 
education courses, must meet our prescribed standards.

Revision to and Clarification of the Liability Insurance Coverage 
Requirement

    To fulfill the third requirement described above, the interim final 
rules required an eligible non-attorney representative to provide proof 
of and maintain continuous liability insurance coverage in an amount we 
prescribe (20 CFR 404.1717(a)(6) and 416.1517(a)(6)). We explained in 
the preamble that we would accept either business liability and 
professional liability insurance to meet this requirement.\3\ In 
response to a comment, we are clarifying in the final rule that 
eligible non-attorney representatives must provide proof of and 
maintain continuous liability insurance that includes coverage for 
malpractice claims against the representative in an amount we 
prescribe.
---------------------------------------------------------------------------

    \3\ 76 FR 45184, 45187-45188.
---------------------------------------------------------------------------

    We are also clarifying our requirement that insurance policies be 
underwritten by a business entity that is legally permitted to provide 
the insurance we require in the States in which the non-attorney 
representative conducts business. When we first established the 
demonstration project, we required that insurance policies be 
underwritten by firms that are licensed to provide insurance in the 
States where the individuals practice. On August 16, 2007, we published 
a Federal Register notice \4\ explaining our decision that the 
insurance requirement would be met if the representative's insurance 
policy was underwritten by a business entity that is legally permitted 
to provide professional liability insurance in the States in which the 
representative conducts business. After we published our interim final 
rules on July 28, 2011, some representatives asked us whether we were 
continuing the August 2007 policy or whether we were returning to the 
original requirement that the insurance policies be underwritten by 
firms that are licensed to provide insurance in the States where the 
individual practices. We did not intend to change the requirement we 
explained in August 2007, and therefore clarified final sections 
404.1717(a)(6) and 416.1517(a)(6) to make this point clearer.
---------------------------------------------------------------------------

    \4\ 72 FR 46121.
---------------------------------------------------------------------------

Other Changes

    We also made minor changes to correct punctuation and wording to 
the following sections:
     Corrected final sections 404.903(z) and 416.1403(a)(24) by 
deleting ``and'' after the semicolon.
     Corrected final sections 404.903(aa) and 416.1403(a)(25) 
by deleting the

[[Page 396]]

period and adding a semicolon and the word ``and.''
     Corrected final sections 404.1717(d)(1)(ii) and 
416.1517(d)(1)(ii) by adding a semicolon after the word ``section.''
     Corrected final section 416.1517(f)(1) to read ``. . . 
paragraphs (a)(1), (a)(2), (a)(3), or (a)(5) of this section'' to 
correspond to the text in 20 CFR 404.1717(f)(1).

Public Comments

    The 60-day public comment period closed on September 26, 2011. We 
received comments from three individuals and two organizations (the 
National Association of Disability Representatives (NADR) and the 
National Organization of Social Security Claimants' Representatives 
(NOSSCR).\5\ We carefully considered the comments. We have condensed, 
summarized, and paraphrased some of the comments due to their length. 
We tried to summarize the commenters' views accurately and respond to 
the significant issues raised by the commenters that were within the 
scope of these rules.
---------------------------------------------------------------------------

    \5\ The comments are available for public viewing at 
www.regulations.gov under docket ``SSA-2010-0025.''
---------------------------------------------------------------------------

Education and Experience

    The Social Security Protection Act of 2004 (SSPA) included a 
requirement that we determine whether a non-attorney representative has 
``equivalent qualifications derived from training and work experience'' 
if the representative does not have ``a bachelor's degree from an 
accredited institution of higher education.'' \6\ In 2005, we published 
a notice in the Federal Register in which we explained that we would 
use a formula that balanced the applicant's years of education and his 
or her relevant professional experience when we determined whether an 
applicant met the ``equivalent qualifications'' requirement.\7\ In the 
5 years that followed, we found the balancing formula difficult to 
administer and revised this requirement in the interim final rules.\8\ 
As we explained in the preamble to the interim final rules, we required 
applicants to demonstrate that they have either a bachelor's degree 
from an accredited institution of higher learning or at least 4 years 
of relevant professional experience and either a high school diploma or 
GED certificate.\9\
---------------------------------------------------------------------------

    \6\ Public Law 108-203, section 303(b)(1) .
    \7\ 70 FR 2447, 2448-49.
    \8\ 42 U.S.C. 406(e)(2)(A).
    \9\ 76 FR 45184, 45186, 45187.
---------------------------------------------------------------------------

    Comment: We received a comment from NADR indicating that it 
concurred that relevant professional experience is essential for 
representatives who have not completed a bachelor's degree. However, 
NADR noted that the SSPA demonstration project included a formula that 
balanced undergraduate education and work experience. NADR encouraged 
us to allow for some flexibility in evaluating relevant work experience 
for individuals who have received credit for undergraduate course work, 
but who have not earned a bachelor's degree.
    Response: It is not practicable for us to evaluate relevant work 
experience for individuals who have received credit for undergraduate 
course work but who have not earned a bachelor's degree. As we stated 
above and in the preamble to the interim final rule, we found the 
balancing formula that considered various combinations of education and 
work experience difficult to administer and we therefore streamlined 
the process and simplified our administration of this requirement. We 
believe requiring a person without a bachelor's degree to have at least 
4 years of relevant professional experience is appropriate because a 
bachelor's degree generally requires 4 years of study. We believe this 
requirement appropriately ensures that the representatives possess the 
qualifications called for in the Act.
    Comment: NADR asked us to clarify what constitutes ``relevant work 
experience.'' NADR was concerned that applicants might lose their 
application fee because we will now evaluate their education or 
equivalent qualifications after they pay the application fee and pass 
the examination.
    Response: In the preamble to the interim final rules, we stated 
that

    We will continue to consider relevant professional experience to 
be work through which the applicant demonstrates familiarity with 
medical reports and the ability to describe and assess mental or 
physical limitations. As in the past, an applicant may gain this 
kind of experience in fields such as teaching, counseling or 
guidance, social work, personnel management, public employment 
service, nursing, or health care professions. We will also continue 
to consider relevant professional experience to include work 
involving claims for benefits under title II or XVI of the Act.\10\
---------------------------------------------------------------------------

    \10\ 76 FR 45184, 45187.

    We believe that this description provides sufficient detail for 
applicants to determine if their prior experience qualifies as relevant 
work experience. It would not be feasible for us, and potentially 
limiting for applicants, if we attempted to include an exhaustive list 
of all qualifying experience in our regulations. Given the changing job 
market and the wide variety of work experience that may qualify as 
``relevant professional experience,'' any list we could develop would 
necessarily be under-inclusive. Accordingly, we will continue to 
determine on a case-by-case basis whether an applicant has relevant 
professional experience, rather than attempting to include in our 
regulations a list of jobs that would qualify.
    Comment: One individual asked how we will determine equivalent 
qualifications derived from training and work experience when a non-
attorney representative is self-employed and has begun, but has not yet 
completed, a bachelor's degree. This commenter also asked what 
documentation we would request in this circumstance to show the non-
attorney representative has 4 years of relevant professional 
experience.
    Response: A self-employed non-attorney representative who does not 
have a bachelor's degree must have at least 4 years of relevant 
professional experience and either a high school diploma or GED 
certificate. This professional experience may be from relevant self-
employment work. In this situation, we may require copies of the 
representative's tax returns and a description of job duties that would 
enable us to evaluate the applicant's relevant professional experience.
    Comment: One individual asked how we will consider a paralegal 
certificate.
    Response: If a non-attorney representative has a high school 
diploma or GED certificate and a paralegal certificate but not a 
bachelor's degree, he or she must have 4 years of relevant professional 
experience, as described above.

Written Examination

    Comment: NADR suggested that we provide sample test materials. 
NOSSCR suggested that we make actual questions from past examinations 
available. NOSSCR asserted that without these materials there was no 
way for the public to assess whether our examination met the statutory 
requirements of testing a representative's knowledge of the relevant 
provisions of the Act and the most recent developments in SSA and court 
decisions affecting titles II and XVI of the Act.\11\
---------------------------------------------------------------------------

    \11\ 42 U.S.C. 406(e)(2)(B).
---------------------------------------------------------------------------

    Response: We provide several sample examination questions for the 
public to view. They are currently accessible through the Direct 
Payment to Eligible Non-Attorney Representatives Web page at http://www.ssa.gov/representation/nonattyrep.htm by selecting the link to the 
contractor's Web site.

[[Page 397]]

    However, we do not plan to make any of our actual tests available 
to the public. We have taken a number of measures to ensure the 
validity of the examination and to make sure that it tests knowledge of 
the relevant provisions of the Act and the most recent developments in 
agency and court decisions affecting title II and title XVI of the Act. 
Our employees, including some of our administrative law judges and 
other subject matter experts, develop the scope and content of the 
examination questions to ensure that our test is comprehensive. The 
contractor that proctors the examination has in-depth knowledge in 
testing services, including test research and development; test 
validation; test scoring; test logistics and administration; 
statistical analysis; and the design, development, and administration 
of assessment centers and performance examinations. We are confident 
these measures ensure that our test complies with the statutory 
requirements cited by the commenter.
    Comment: NADR acknowledged our current budgetary constraints, but 
suggested that we administer the examination electronically using 
computers in secure locations, such as in our field or hearing offices, 
when such technological improvements and enhancements become available. 
The commenter believed that this approach would allow us to offer the 
examinations at least twice a year in more locations.
    Response: We are not adopting these suggestions at this time. As 
the commenter recognized, we currently do not have separate facilities 
at field and hearing offices or designated computer equipment to 
administer examinations, nor do we have funds available to adopt this 
comment. We are also concerned that proctoring examinations at field 
and hearing offices could disrupt our service to the public. However, 
we may consider offering additional examinations if demand warrants, 
and we have the resources available to do so.
    Comment: NADR wanted us to raise the minimum passing score from 70 
to 75 because we discontinued the requirement that an applicant show he 
or she has represented at least five claimants within a 24-month 
period.
    Response: We are not adopting this suggestion. We continue to 
believe that a representative who attains a score of at least 70 has 
demonstrated that he or she has sufficient knowledge of the Act, our 
regulations, and related court decisions to meet the statutory testing 
requirement.
    Comment: NOSSCR wanted us to assess advocacy skills in the 
examination.
    Response: We are not adopting this suggestion. The Act does not 
require that we assess a representative's advocacy skills and we 
believe the current examination and other criteria are sufficient 
measures of a non-attorney representative's knowledge.

Liability Insurance

    Comment: NADR asked us to require non-attorney representatives to 
ask their insurance companies to notify us when the non-attorney 
representative modifies or terminates his or her insurance coverage.
    Response: We are not adopting this suggestion. Implementing this 
proposal could result in an additional workload for us to follow up 
with insurance companies and to analyze more correspondence than 
necessary. It would be unnecessary and would impose a significant 
burden on our scarce administrative resources to review these policies 
every time there is a slight modification. We believe the 
representative should remain responsible for providing us with proper 
proof of current liability insurance coverage.
    Comment: NOSSCR asserted that our rules allowing non-attorney 
representatives to maintain business liability insurance was not 
consistent with the Act's requirement that non-attorney representatives 
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 representative.'' \12\ NOSSCR asserted 
that most business liability insurance contracts do not include errors 
and omissions coverage for malpractice and are therefore not equivalent 
to professional liability insurance coverage. NOSSCR asked us to revise 
our rules to require eligible non-attorney representatives to maintain 
only professional liability insurance contracts that include 
malpractice coverage.
---------------------------------------------------------------------------

    \12\ 42 U.S.C. 406(e)(2)(C).
---------------------------------------------------------------------------

    Response: We agree with NOSSCR that our rules should specify that 
all liability insurance policies must include malpractice coverage and 
that our current regulations do not clearly state this requirement. 
Therefore, we are revising final sections 404.1717(a)(6) and 
416.1517(a)(6) to require that each eligible non-attorney 
representative provide proof of and maintain continuous liability 
insurance that includes coverage for malpractice claims against the 
representative and be in an amount we prescribe.

Criminal Background Check

    Comment: NADR asked which types of information within a criminal 
background check could disqualify a non-attorney representative from 
being eligible to receive direct fee payment.
    Response: We explained in sections 20 CFR 404.1717(a) and 
416.1517(a) of the interim final rules that
    A non-attorney representative is eligible to receive direct payment 
of his or her fee out of your past due benefits if he or she:
    (4) Passes our criminal background investigation (including checks 
of our administrative records), and attests under penalty of perjury 
that he or she:
    (i) Has not been suspended or disqualified from practice before us 
and is not suspended or disbarred from the practice of law in any 
jurisdiction;
    (ii) Has not had a judgment or lien assessed against him or her by 
a civil court for malpractice or fraud;
    (iii) Has not had a felony conviction; and
    (iv) Has not misrepresented information provided on his or her 
application or supporting materials for the application.
    We will reject the application if the applicant fails to meet any 
of these criteria. In addition, we list the factors we consider under 
this requirement at the Direct Payment to Eligible Non-Attorney 
Representatives Web page http://www.ssa.gov/representation/nonattyrep.htm and selecting the link to the contractor's Web site. As 
we note on that Web site, we will also reject an application if the 
applicant fails to pass our administrative records check or fails to 
provide documentation requested by the contractor to perform the 
criminal background investigation.

Continuing Education

    The SSPA included a requirement that eligible non-attorney 
representatives demonstrate ongoing completion of qualified courses of 
continuing education. In 2005, we published a notice in the Federal 
Register under which we required the non-attorney representative to 
complete certain hours of continuing education requirements during 
certain time periods, depending on how long the representative 
participated in the demonstration project and whether the 
representative was a course instructor.\13\ We found that framework 
unnecessarily complex and burdensome to administer.

[[Page 398]]

As a result, in sections 404.1717(a)(7) and 416.1517(a)(7) of the 
interim final rules, we required the non-attorney representative to 
complete and provide proof that he or she has completed all continuing 
education courses that we prescribe by the deadline we prescribe in 
order to meet the PRA's continuing education requirement.
---------------------------------------------------------------------------

    \13\ See 70 FR 41250.
---------------------------------------------------------------------------

    Comment: NADR disagreed with our decision to end our prior 
framework of balancing the continuing education requirement with the 
representative's length of participation in the demonstration project.
    Response: We do not agree with this comment. The framework we set 
out in the 2005 Federal Register notice was confusing to many 
representatives and unnecessarily complex and burdensome for us to 
administer. As a result, a number of representatives had difficulty 
understanding our requirements and contacted us for guidance throughout 
the reporting period. We anticipate that the streamlined and uniform 
approach that we established in the interim final rules and are making 
final in these rules will benefit representatives.
    Comment: NADR suggested that the educational opportunities that 
will satisfy the continuing education requirement should be widely 
available.
    Response: We agree that the courses, whether our own or from 
vendors, should be widely available. We plan to prescribe courses that 
will satisfy the continuing education requirement. These courses may 
include a variety of electronic presentations. We will inform eligible 
non-attorney representatives of the deadline for completing the 
courses, and how they should report to us that they have completed the 
courses through alternate methods, e.g. through our Web site: http://www.socialsecurity.gov/representation.
    Comment: NADR suggested that we create a process through which we 
would pre-approve vendor courses if the vendor supplied us with certain 
information. The commenter asked us to provide written approval of 
these courses so that the vendors can state in marketing materials that 
the courses meet our criteria.
    Response: It would be administratively burdensome to pre-approve 
all potential courses that meet our standards for satisfying the 
statutory requirement for continuing education.\14\ We will identify 
either our own courses or general types of courses and will provide 
sufficient information so that the representative can individually 
identify vendors' courses that meet our standards and satisfy this 
requirement. We will identify these courses through alternate methods, 
e.g. through our Web site: http://www.socialsecurity.gov/representation.
---------------------------------------------------------------------------

    \14\ 42 U.S.C. 406(e)(2)(E).
---------------------------------------------------------------------------

    Comment: NADR asked us to include links on our Web site to vendors 
that have approved courses.
    Response: We will include links on our Web site or our contractor's 
Web site to our own courses. As noted above, we will also provide 
sufficient information to allow representatives to identify vendors' 
courses that meet our requirements.
    Comment: NADR suggested that we require non-attorney 
representatives to keep proof of course attendance for up to 3 years so 
we could conduct audits of attendance.
    Response: We are not adopting this suggestion because we revised 
this criterion to make it less complex and less burdensome.

Representational Experience

    As we discussed in the preamble to the interim final rule, under 
the procedures we followed for the demonstration project, we required a 
non-attorney representative to show that he or she had specific minimum 
representational experience.\15\ We required a non-attorney 
representative to show that he or she represented at least five 
claimants before us within a 24-month period within the 60 months 
before the month in which the applicant filed the application. We 
eliminated this requirement in the interim final rules because we found 
it complicated the application process without adding significant 
benefit.
---------------------------------------------------------------------------

    \15\ 76 FR 45184, 45189.
---------------------------------------------------------------------------

    Comment: NOSSCR disagreed with this decision and asked us to add 
that at least two of the five required cases take place at the hearing 
level.
    Response: In our experience administering the demonstration 
project, we found that passing the written examination is a better 
barometer of a representative's knowledge and skills than the 
representational experience requirement. The representational 
requirement is not one of the statutory prerequisites to the direct 
payment of fees to non-attorney representatives and, therefore, we have 
decided to exercise our discretion not to include it in our current 
process.

Protest Procedures

    Both the SSPA and the PRA require that a non-attorney 
representative meet the statutory requirements before we determine that 
he or she is eligible to receive direct fee payment. Once we determine 
that a non-attorney representative is eligible to receive direct fee 
payment, he or she must continue to meet all of the requirements. The 
Federal Register notice we published to explain the demonstration 
project set out protest procedures that we followed for that project. 
In the interim final rules, we also included rules that explained how 
we would handle protests when we determine that a non-attorney 
representative is not eligible to receive direct fee payment. We 
explained that the protest procedures in the interim final rules were 
easier to understand, follow, and administer than the procedures we 
followed under the demonstration project.
    Comment: NADR asked us to state that we would refund an applicant's 
application fee for failing to arrive for an examination due to weather 
or travel disruptions because they are ``circumstances beyond an 
applicant's control.''
    Response: The interim final rules provided we would refund the 
application fee if ``[c]ircumstances beyond the applicant's control 
that could not have been reasonably anticipated and planned for prevent 
an applicant from taking a scheduled examination.'' \16\ We believe it 
is inappropriate to include in our regulations the examples the 
commenter cited. In our experience, we have found that including 
examples in our regulations inappropriately limits the application of 
the rule to the specific examples cited in a manner that we do not 
intend. In addition, it is unclear that all weather or travel 
disruptions would be both beyond the applicant's control and constitute 
circumstances that the applicant could not have reasonably anticipated 
and planned for, as the regulation requires. If an applicant requests a 
refund because he or she did not take the examination, we will consider 
the reasons presented and make a decision based on the facts of each 
individual case. The applicant retains the responsibility to submit 
documentation to support his or her request.
---------------------------------------------------------------------------

    \16\ 20 CFR 404.1717(c)(1)(ii) and 416.1517(c)(1)(ii).
---------------------------------------------------------------------------

    Comment: One individual and one organization wanted us to give non-
attorney representatives more than 10 calendar days to file a protest. 
NADR wanted us to give 10 business days to file a protest, in addition 
to 5 days for mailing. NADR also wanted us to allow a representative to 
file a request for an extension of time to protest when extenuating 
circumstances existed. The individual wanted us to give

[[Page 399]]

representatives at least 15 days to file a protest, or, ideally, to 
provide 30 days to protest, as we do in our sanctions procedures.
    Response: The definition of the phrase ``Date we notify him or 
her'' in sections 404.1703 and 416.1503 of the interim final rules 
makes it clear that we begin counting the 10 calendar days to file a 
protest 5 days after the date on the notice. We add 5 days to account 
for mail time, although a representative may show us that he or she 
received it after this 5-day period. Therefore, we do give 
representatives 15 days to protest our finding that he or she is 
ineligible to receive direct fee payment for the reasons set out in 
sections 404.1717(d) and 416.1517(d) of the rules, as the second 
commenter suggested.
    We disagree with the comment to revise the deadline in our protest 
rules from 10 calendar days to 10 business days for two reasons. The 
majority of our other rules use calendar days instead of business days 
as a basis for calculating action deadlines.\17\ Further, our rules 
clearly explain how to calculate a deadline that falls on a non-work 
day.\18\
---------------------------------------------------------------------------

    \17\ See e.g. 20 CFR 404.521(b), 404.1512(d)(1), 405.5, and 
411.435(c)(2).
    \18\ 20 CFR 404.3(b) and 416.120(d).
---------------------------------------------------------------------------

    We also disagree with the comment to allow for an extension of time 
to file a protest based on extenuating circumstances. We inform non-
attorney representatives who apply for direct fee payment eligibility 
about our requirements and timeframes in the application materials, on 
our Web site or our contractor's Web site, and in other correspondence, 
we send to them. When there is evidence that a representative may not 
meet our eligibility prerequisites, we will request the missing 
documentation from him or her. It is the representative's 
responsibility to respond to our requests in a timely manner.
    Finally, we disagree with the comment to extend the time in which 
to protest our finding that a non-attorney representative is ineligible 
to receive direct fee payment from 10 to 30 calendar days, to match our 
sanctions rules. An adverse decision from a sanctions proceeding 
results in the representative being unable to practice before us. In 
contrast, a non-attorney representative may continue to practice before 
us and be paid for his or her services directly by the claimant even if 
we determine he or she is ineligible to receive direct fee payment from 
us. For that reason, a shorter time frame to file a protest in the 
direct pay context is appropriate.

Terminology

    Comment: One individual asked us to change the title of ``non-
attorney representative'' to something ``more dignified.'' NOSSCR asked 
us to specify what designation a non-attorney representative may use 
after he or she is found eligible for direct fee payment. NOSSCR also 
asked us to revise our regulations to clarify that a non-attorney 
representative who is eligible for direct fee payment is not certified 
or licensed by us.
    Response: We began using the term ``non-attorney representative'' 
in 2004 because this is the term used by Congress in the SSPA, and 
again in the PRA. We believe it works well and are not changing it at 
this time.
    We agree with NOSSCR that being eligible for direct pay does not 
mean that the representative is certified or licensed by us. Our 
current rules clearly state that we only pay fees directly to non-
attorney representatives who successfully meet the eligibility 
requirements in 20 CFR 404.1717(a) and 416.1517(a). This eligibility to 
receive direct fee payment does not confer our certification, license, 
accreditation, or endorsement of the individual to be a representative. 
Therefore, eligible non-attorney representatives may not advertise 
themselves in any way that may create the appearance that we have 
approved or endorsed them as representatives. Further, a representative 
who performs an action to deceive or knowingly mislead a claimant or 
prospective claimant or beneficiary may violate our rules of conduct 
and standards of responsibility for representatives in 20 CFR 404.1740 
and 416.1540. Because we believe that the purpose of the direct pay 
application process is clear and that the current rules of conduct and 
standards of responsibility are sufficient to discipline any 
representative who portrays his or her credentials deceptively, we are 
not adopting the suggestion to revise our rules in this manner.

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 135653

    We consulted with the Office of Management and Budget (OMB) and 
determined that these final rules meet the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563. Therefore, OMB reviewed them.

Regulatory Flexibility Act

    We certify that these final rules will not have a significant 
economic impact on a substantial number of small entities because they 
affect individuals only. Therefore, a regulatory flexibility analysis 
as provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    This rule does not create any new or affect any existing 
collections and, therefore, does not require OMB approval under the 
Paperwork Reduction Act.

(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)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Old-age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons stated in the preamble, we are adopting the interim 
rule with request for comments amending 20 CFR chapter III, part 404, 
subparts J and R, and part 416 subparts N and O that we published on 
July 28, 2011 at 76 FR 45184 as final with the following changes:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950- )

Subpart J--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
1. The authority citation for subpart J of part 404 continues to read 
as follows:

    Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i), 
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 
Stat. 509 (42 U.S.C. 902 note).


[[Page 400]]



0
2. Amend Sec.  404.903 by revising paragraphs (z) and (aa) to read as 
follows:


Sec.  404.903  Administrative actions that are not initial 
determinations.

* * * * *
    (z) Starting or discontinuing a continuing disability review;
    (aa) Issuing a receipt in response to your report of a change in 
your work activity; and
* * * * *

Subpart R--Representation of Parties

0
3. The authority citation for subpart R of part 404 continues to read 
as follows:

    Authority: Secs. 205(a), 206, 702(a)(5), and 1127 of the Social 
Security Act (42 U.S.C. 405(a), 406, 902(a)(5), and 1320a-6).

0
4. Amend Sec.  404.1717 by revising paragraphs (a)(6) and (d)(1)(ii) to 
read as follows:


Sec.  404.1717  Direct payment of fees to eligible non-attorney 
representatives.

    (a) * * *
    (6) Provides proof of and maintains continuous liability insurance 
coverage that is underwritten by an entity that is legally permitted to 
provide professional liability insurance in the States in which the 
representative conducts business. The policy must include coverage for 
malpractice claims against the representative and be in an amount we 
prescribe; and
* * * * *
    (d) * * *
    (1) * * *
    (ii) Meet at all times the criminal background investigation 
criteria, as described in paragraph (a)(4) of this section;
* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart N--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
5. The authority citation for subpart N of part 416 continues to read 
as follows:

    Authority: Secs. 702(a)(5), 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. 
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).


0
6. Revise Sec.  416.1403 paragraphs (a)(24) and (25) to read as 
follows:


Sec.  416.1403  Administrative actions that are not initial 
determinations.

    (a) * * *
    (24) Starting or discontinuing a continuing disability review;
    (25) Issuing a receipt in response to your report of a change in 
your earned income; and
* * * * *

Subpart O--Representation of Parties

0
7. The authority citation for subpart O of part 416 continues to read 
as follows:

    Authority:  Secs. 702(a)(5), 1127, and 1631(d) of the Social 
Security Act (42 U.S.C. 902(a)(5), 1320a-6, and 1383(d)).


0
8. Amend Sec.  416.1517 by revising paragraphs (a)(6), (d)(1)(ii), and 
(f)(1) to read as follows:


Sec.  416.1517  Direct payment of fees to eligible non-attorney 
representatives.

    (a) * * *
    (6) Provides proof of and maintains continuous liability insurance 
coverage that is underwritten by an entity that is legally permitted to 
provide professional liability insurance in the States in which the 
representative conducts business. The policy must include coverage for 
malpractice claims against the representative and be in an amount we 
prescribe; and
* * * * *
    (d) * * *
    (1) * * *
    (ii) Meet at all times the criminal background investigation 
criteria, as described in paragraph (a)(4) of this section;
* * * * *
    (f) * * *
    (1) Did not meet the initial criteria for eligibility in paragraph 
(a)(1), (2), (3), or (5) of this section in a prior application period; 
or
* * * * *
[FR Doc. 2014-30921 Filed 1-5-15; 8:45 am]
BILLING CODE 4191-02-P