SSA Mechanics Boot Camp

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SSA Mechanics Boot Camp

© Copyright 2021 by Stetson University College of Law. Copying of any portion of this manual is expressly prohibited without the express permission of the College of Law.

To obtain additional copies, contact:

Center for Excellence in Elder Law 1401 61

^st

Street South

Gulfport, FL 33707 Phone: (727) 562-7393

Email: [email protected]

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&

Exhibitors

Stetson University College of Law expresses its appreciation to our sponsors

and exhibitors for their support of the 2021 National Conference on

Special Needs Planning and Special Needs Trusts

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E M P LO Y E R O F R E C O R D S E R V I C E S F O R H O U S E H O L D E M P LO Y E E S

What We Do

TEAM eliminates both the administrative burden and the employment liability which results from employing domestic staff.

As the employer of record, TEAM provides a seamless solution to these household employment challenges by eliminating the hassles of employee administration and protecting your clients from employment-related risk.

Established in 2003, we are now proud to serve over 350 of the largest banks, trust companies, and financial institutions, and across the US.

With TEAM...

Fiduciary

Client

Without TEAM...

W2 AND OTHER TAX REPORTING

HR COMPLIANCE BY STATE STATE OFFICE OF

UNEMPLOYMENT WORKERS COMP

INSURANCE

STATE REVENUE AGENCIES

EPLI AND OTHER EMPLOYMENT LIABILITY ACA AND OTHER

FEDERAL COMPLIANCE

IRS

I-9 AND OTHER FEDERAL REPORTING

Fiduciary

Client Employees

Employees Employees

CRIME INSURANCE BACKGROUND

CHECKS

If we miss you there, you can find us at:

www.teamemployer.com

We look forward to seeing you at our booth!

We would love to get to know your business and find out how we can help you better serve your clients.

TEAM is the proud sponsor of the Stetson’s National Conference on Special Needs Planning & Trusts for the 16

^th

consecutive year

National Conference Sponsor

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Wireless Sponsor Name Badge Sponsor

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App Sponsor

Bag Sponsor

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Wednesday Lunch Sponsor Thursday Lunch Sponsor

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Friday Lunch Sponsor

Registration Sponsor

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Beverage Sponsor

Wed. Break Sponsor

Thurs. Break Sponsor

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Wed. Breakfast Sponsor Thur. Breakfast Sponsor

Fri. Breakfast Sponsor

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We appreciate our exhibitors for their continuous

support of Stetson Law and the National Conference

on Special Needs Planning and Special Needs Trusts

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SSA Mechanics Boot Camp Wednesday, October 13, 2021

8:15 a.m.‐ 8:30 a.m.

Welcome & Announcements

Professor Roberta Flowers, Conference Chair and Director, Center for Excellence in Elder Law

8:30 a.m.‐ 9:30 a.m.

Practice Management Emily Kile

This session will offer tips for your practice, checklists related to special needs trusts, a “tip” sheet for families, step‐by‐step checklist for PI cases with special needs beneficiaries, how to set family

expectations on the administering the SNT, dealing with SSA, and more.

9:30 a.m. ‐ 10:20 a.m.

What To Do if You Are Denied Francesco Benavides

The disability appeals process, from initial consideration to federal district court appeal, and key issues arising in the 5‐step sequential disability evaluation.

10:20 a.m. ‐ 10:35 a.m.

Break and Visit with Sponsors and Exhibitors

10:35 a.m. ‐ 11:25 a.m.

Representing SSA Disability Claimants Lloyd King

A beginner’s guide to adding Social Security disability to your practice.

11:25 a.m. ‐ 12:15 p.m.

The Ins and Outs of ISM Ken Brown

In‐kind support and maintenance (ISM) can be one of the most confusing aspects of the Supplemental Security Income (SSI) program. This course will start with the nuts and bolts of the policy and take you through tips and tricks to use in your practice to avoid or use ISM counting to benefit your clients.

12:15 p.m.

Adjourn

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SSA Mechanics Boot Camp

Wednesday October 13, 2021

Practice Management

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8727 E. Via de Commercio, Scottsdale AZ 85258 www.kilelawfirm.com

F: 1-866-404-5085

Emily B. Kile, Esq.

[email protected] P: (480) 348-1590

Tips To Help You Administer a First Party Special Needs Trust 1. You can only use money in the Trust as set forth in ARS _§36-2934.01.

2. You can only use the money for the beneficiary’s proportionate share of costs. If there are three people living in the house, the trust can pay for 1/3 of the basic household costs.

3. You can pay for a cell phone, the beneficiary’s share of vacation costs, the cost for a caregiver or companion to accompany the beneficiary on trips if the beneficiary cannot travel alone. You can pay for haircuts, clothing, games, and other things that are enjoyed by the beneficiary.

4. Payments from the trust for food and/or shelter will reduce an SSI payment by the lesser of the actual costs for food or shelter or 1/3 of the maximum payment an SSI recipient can receive. If the beneficiary uses his/her SSI payment for these costs, there is no reduction of SSI.

5. A copy of the Trust (and all amendments) must be provided to ALTCS/DDD and the Social Security Administration if the person receives SSI.

6. A copy of all bank statements, deeds or other documents showing ownership to the Trust must also be provided to ALTCS/DDD and the Social Security Administration (if the person receives SSI).

7. If additional assets are obtained by the Trust, those must also be reported to the agencies that provide benefits to the beneficiary.

8. If the beneficiary earns income, it must be reported monthly to ALTCS and SSA for SSI benefits.

9. ALTCS/DDD may request an accounting of how the trust funds were used during the lifetime of the beneficiary. Keep really good records! You may want to provide annual accountings, with bank statements and receipts, so you do not have to create many years of accountings later.

10. Do not use the money in the trust for gifts to third parties—EVER!

11. Cash gifts from the trust to the trust beneficiary are treated as “income” to the trust beneficiary and must reported to the agencies that provide services to the beneficiary. Such gifts may decrease the amount of SSI received in the following month and may put the beneficiary over the ALTCS income limit.

12. Failure to report cash distributions to the trust beneficiary or other income received by the trust beneficiary may create an “overpayment” of SSI and may result in a loss of SSI benefits and a need to repay money received by SSI. Think before you give cash to the trust beneficiary and report all income received by the trust beneficiary.

13. Debit cards given to the trust beneficiary may impact benefits—obtain TrueLink Card and block cash transations. Similarly, gift card with cash value may impact benefits.

14. If you want to pay for more care than is being provided by ALTCS, you must obtain written permission from ALTCS as to the rate and the amount of care being provided,

15. Think about prepaying for funeral/cremation services. Once the trust beneficiary dies you cannot spend any money out of the Trust unless you have permission from HMS.

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8727 E. Via de Commercio, Scottsdale AZ 85258 www.kilelawfirm.com

F: 1-866-404-5085

[email protected] P: (480) 348-1590

Tips To Help You Administer a Third Party Supplemental Needs Trust

1. You can spend the money in the trust on anything that benefits the special needs beneficiary.

Remember, however, that the trust can only pay the proportionate share of the special needs beneficiary. For example, if there are three people living in the house, the Trust can only pay 1/3 of the utilities.

2. You can pay for a cell phone, the beneficiary’s share of vacation costs, the cost for a caregiver or companion to accompany the beneficiary on trips if the beneficiary cannot travel alone. You can pay for haircuts, clothing, games, and other things that are enjoyed by the beneficiary.

3. Payments from the trust for food and/or shelter will reduce an SSI payment by the lesser of the actual costs for food or shelter or 1/3 of the maximum payment an SSI recipient can receive. If the beneficiary uses his/her SSI payment for these costs, there is no reduction of SSI.

4. A copy of the Trust (and all amendments) must be provided to ALTCS/DDD and the Social Security Administration if the person receives SSI.

5. A copy of all bank statements, deeds or other documents showing ownership to the Trust must also be provided to ALTCS/DDD and the Social Security Administration (if the person receives SSI).

6. If additional assets are obtained by the Trust, those must also be reported to the agencies that provide benefits to the beneficiary.

7. If the beneficiary earns income, it must be reported monthly to ALTCS and SSA for SSI benefits.

8. Keep really good records of how trust assets are used!

9. The trust needs its own tax identification number and may need to file tax returns once the trust has any assets.

10. Remember that the remainder beneficiaries of the Trust are also entitled to annual accountings—

unless exempt under the terms of the trust.

11. Do not use the money in the trust for gifts to third parties.

12. Cash gifts from the trust to the trust beneficiary of more than $20 are treated as “income” to the trust beneficiary and must reported to the agencies that provide services to the beneficiary. Such gifts may decrease the amount of SSI received in the following month.

13. Failure to report cash distributions to the trust beneficiary or other income received by the trust beneficiary may create an “overpayment” of SSI and may result in a loss of SSI benefits and a need to repay money received by SSI. Think before you give cash to the trust beneficiary and report all income received by the trust beneficiary.

14. Debit cards given to the trust beneficiary may impact benefits—maybe get a TrueLink Card and block cash distributions. Similarly, gift card with cash value may impact benefits.

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DISCLOSURE AND ACKNOWLEDGEMENT

I, _____________________ as __________________ acknowledge and have been informed of and

understand the following for (trust beneficiary).

1. Trust beneficiary must be disabled as defined by the Social Security Administration.

2. The trust should protect financial eligibility for SSI and/or Medicaid.

3. All funds will be titled to the Beneficiary’s Special Needs Trust.

4. Interest and dividends earned are taxable. Consult with your CPA.

5. Funds cannot be made payable directly to the trust beneficiary. No cash can be provided to the trust beneficiary.

6. ALL disbursements must be made payable to a third party.

7. ALL disbursements must be for the sole benefit of the trust beneficiary.

8. ALL disbursements require receipts, Invoices and/or other evidence to substantiate the 9. ALL credit card bills must include statements reflecting applicable charges with receipts for 10. Disbursements for groceries, gas, electric, water, sewer, heating fuel, garbage removal,

real estate, rent or mortgage may impact ALTCS/DDD and SSI benefits.

11. Once the trust account is funded, It Is Irrevocable.

12. Trustee fees will be taken from trust corpus once funded.

13. Beneficiary or legal representative must notify our office and SSA and/or the Medicaid office of any changes in income or resources.

14. Beneficiary or legal representative must notify our office ASAP if they receive a suspension or change of eligibility letter.

15. Prepaid burial/funeral plans for the Beneficiary may be paid by the trust.

16. Upon death, no funds can be withdrawn from the trust until approved by ALTCS or its recovery agent.

17. Upon death, the state Medicaid agency has a right of recovery for total medical services paid.

18. Upon death, Supplemental Security Income has no right to recovery.

19. Fees will be billed by the Trustee at the rate of $_____________ a month. Rates may change upon 30 days advance notice.

20. Upon death, if the state Medicaid recovery is greater than the funds remaining, the Medicaid agency will only get the money in the Trust.

21. Fees for tax preparation are in addition to Trustee fees.

22. Fees and costs associated with financial advice, purchase of investments, court accountings, legal fees etc are in addition to the Trustee fees.

23. Kile & Kupiszewski Law Firm, LLC represents the Trustee and no other party in this matter.

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Please direct questions related to the trust and government benefits to us first. To administer the trust appropriately we are required to comply with prudent investment rules, state Medicaid rules, the Social Security Administrations Procedure Operating Manual rules (POMS) and state labor laws. We will help you locate a directory for an attorney that specializes in these areas of law if you would like your own representation.

By signing below, I/we, acknowledge the above statements.

Signed by: ______________________________________

Dated: _________________________________________

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FIRST PARTY SNT CHECKLIST CLIENT: __________________________

TASK RESPONSIBLE PERSON DATE COMPLETED

Personal Injury Questionnaire returned

Initial consultation with PI attorney and potential client Signed Fee Agreement Obtain copies of benefit approval letters

Plan for proceeds?

Annuity Outright Other

Ensure we have all asset and income information

Discuss Pooled Trust vs d4a trust

Who is the Trustee

Is the beneficiary competent?

If no: is there a parent, grandparent of guardian?

If yes:

Draft Trust or obtain joinder agreement

Court approval needed?

Draft Pleadings -Petition and Order -Acceptance of trustee -Notice of Hearing -Compensation Schedule -Proof of Mailing Notice of Hearing

Review Trust and Pleadings Schedule meeting with client to sign Pleadings and AHCCCS forms, have Trustee at the meeting

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Make sure to set realistic expectations about use of the funds and timeframe for when funds will be available

-Anticipated Disbursements -Rights and Responsibilities -Trust verification form Give Client Tips for First Party SNTs and list of acceptable distributions

Draft Transfer deed if applicable File Petition and obtain hearing date

Put hearing on calendar

Call client with hearing date Call client to prepare for hearing Attend hearing

Bring Notary book to hearing Bring extra copy of the trust to be signed after the hearing Letter to SSA

Letter to AHCCCS

Closing letter to client/How to administer trust letter to trustee

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2021 National Conference on Special Needs Planning and Special Needs Trusts

Practice Management Tips Emily B. Kile, Esq.

October 13, 2021

www.law.stetson.edu/elderlaw

Systems and Processes

DEVELOP CHECKLISTS OR OTHER WRITTEN PROCESSES

FOR HANDLING MATTERS.

FOLLOW THOSE PROCESSES AND UPDATE THEM AS

NEEDED.

ALWAYS SAY “THANK YOU”

TO THE PARTY WHO REFERRED THE CLIENT.

BE ACTIVE IN THE LOCAL BAR OR OTHER ENTITY FOR TRIAL LAWYERS.

DO PRESENTATIONS ABOUT THESE TOPICS.

ANSWER QUESTIONS ON

THE LISTSERV THEY USE. BE A RESOURCE.

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Thank you

• Keep track of who makes referrals

• Send a thank you note to the referring party.

• Send a thank you note to your client (and know who your client is!).

• For estate planning clients we also send a postcard 12 months after the estate planning documents are signed.

Marketing

Ideas

• Videos on your website:

• Short videos (2‐5 minutes)

• Longer videos

• “host” a monthly webinar

• Invite outside speaker

• Record and post

• Do email “alerts” for special information

• Changes to income limits for Medicaid etc.

• Be active in answer questions on discussion groups

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3 Be Active in your Legal Community

• Join related Bar sections – Family Law, Civil, Trial Lawyers

• Join their discussion groups and respond even when it has nothing to do with you getting the work.

• Be a resource to the groups, other attorneys and referral sources.

• There is plenty of work to go around.

Be Active inYour Community in General

• Get on a board of a local non profit.

• Volunteer at an event.

• Join a committee.

Presentations

• Be a presenter. Do webinars. Invite outside speakers

• Arrange for presentations. Do the introductions even if you are not a speaker. Get your name and face on the invitation.

• Forward presentations to clients and referral sources that are outside your practice area but might be useful to others.

• Don’t like to speak….write articles!

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4 Working with

Personal Injury Attorneys

• They can be wonderful referral partners.

• Special Needs Planning

• Guardianship/Conservatorship matters

• Probate and Trust Administration

• Medicaid Planning

• Estate Planning

The Initial Contact

Phone rings or an email arrives

• PI attorney: “Heard you know how to protect SSI and Medicaid benefits when an injured person is going to receive a settlement or jury award. Can you help me?”

• SPN Attorney: “Of course.“

AND THE RACE IS ON!!!

Why it matters

• Personal Injury/wrongful death attorney knows how to manage the civil case.

• Court may require approval if the person is a minor or incapacitated.

• Avoid malpractice for civil attorney by getting Special Needs attorney involved to counsel injured party/family regarding potential loss of public benefits.

• Personal injury/wrongful death attorney wants to get paid.

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5 What Are you trying to achieve?

•Settlement process is to:

•Achieve their post-loss goals

•Transition successfully into post-settlement life

Settlement Planning Topics

•Consists of some or all of the following:

•Setting Client Expectations

•Working with the Client & Family to execute a plan that

includes:

When do you get involved?

• Date of Loss: 2015

• Family retained an attorney to pursue claim:

2015

• Trial/Arbitration/Mediation/Settlement:

2017

• Work on Liens: January 1, 2018

• Money is ready to be distributed: January 15, 2022

• You receive the call from the Personal Injury Attorney—can you get a hearing date for Court approval by February 10, 2022?

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6 Who is on the

“team”

• Personal Injury/Wrongful Death Attorney

• Injured party

• Family of injured party or deceased person.

• Structure settlement broker

• Medicare Set Aside specialist

• Financial advisor/planner

• Special needs planning attorney

Step One:

Slow down

• Step One: PI questionnaire to be completed

• Understand the facts

• Understand what benefits are in place now and what do they provide

• Is this a minor who is not disabled

• Is this a person who will no longer be self sufficient long term

• Is this a person over age 65

Step Two:

• Who is the client

• Who can you talk to about the matter

• Who will sign the fee agreement

• Define how you are getting paid (hourly, flat fee, combination)

• Define who is paying you

• From the settlement?

• As a cost to the PI attorney?

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7 Step Three

• Step Three

• Provide options:

• EX. Minor who is not incapacitated other than due to age

• Structured settlement: starts at age 18 and perhaps avoid conservatorship?

• Review structure options with client

• Conservatorship with all funds restricted and pay out at age 18?

• Trust under state law to pay out with more flexibility?

• Special Needs Trust

Issues to think through

• Person who will not be financially self sufficient due to injuries.

• Under age 65 and SNT will work?

• Disabled prior to age 26 and fund

$15,000 to ABLE?

• Fund to pooled trust, may cause penalty or may not?

• Who will act as trustee (bond issues?)

• Define your on going role—do you represent the trustee going forward?

Government Benefit Analysis

• Worth keeping benefits?

• Buy health insurance?

• Converting to DAC due to loss of parent?

• Minimal state assistance or large settlement? Self fund?

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8 Expectations of Family

• Money is for everyone

• We can use it for anything we need

• We waited a long time for this money and have a long list of needs

• We need a house

• Injured party needs an accessible vehicle

SNT Disclosure Form

Details of how SNT’s work

• Any outstanding debts to be paid?

• Money owed to family members that court will approve?

• They have lived with this situation for a long time!

• Set expectations early—a trustee is a gate keeper.

• SNT has a pay back provision.

• Need to fund funeral now.

• Limits on the distributions.

• Does the Trustee need Medicaid approval before making distributions?

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9 Notification

WHAT AGENCIES NEED TO BE NOTIFIED ABOUT THE SETTLEMENT AND FUNDING

OF THE TRUST?

WHO IS RESPONSIBLE FOR THAT TASK?

Sample letter to SSA

SSA Counts Your Trust

FIRST THEN

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Documentation to Trustee

• If you represent the Trustee

• Documentation regarding how to make distributions

• Standards and process for decision making

• Reminder about payback provision

• Reminder to pay for funeral now

• Are accountings required to be filed or provided to anyone

• Closing letter when your work is completed

Non‐

Personal Injury Situations

• Person on SSI and/or Medicaid long term care is entitled to an inheritance.

• Are you also handling the probate of the estate?

• Similar analysis:

• Under age 65?

• Need court permission to fund SNT?

• Who do you represent?

THANK YOU!

Kile Law Firm, PC 8727 E. Via de Commercio Scottsdale, AZ 85258 (480) 348‐1590 [email protected]

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SSA Mechanics Boot Camp

Wednesday October 13, 2021

Representing SSA Disability Claimants

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Representing SSA Disability Claimants Lloyd King

A beginner’s guide to adding Social Security Disability to your practice.

Lloyd King Law Firm, PLLC 9131 Anson Way, Ste 100 Raleigh, NC 27615 (919) 747-3419

www.kingdisability.com

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1. Helpful Resources

National Organization of Social Security Claimant’s Representatives (NOSSCR) – NOSSCR has over 3,000 members in all 50 states and Puerto Rico. It holds two annual conferences in various locations around the country, and online continuing education programs for disability representatives, numerous publications, administrative updates, summaries of court and administrative decisions, and operates a client referral service. https://nosscr.org

National Association of Disability Representatives (NADR) – Membership open to a wide range of professionals involved in the disability practice. It also conducts annual conferences, provides continuing legal education, a national referral service, and an online forum for members. www.nadr.org

Thomas E. Bush, Social Security Disability Practice - A two-volume publication that covers all aspects of representing disability claimants at all steps of the claims process from initial client contact though federal district court practice. Includes sample forms needed to effectively represent disability claimants.

Social Security Administration Website – A valuable resource for information about of Social Security’s programs and procedures. www.ssa.gov

2. Security Act, Regulations, Rulings and Agency Operating Procedures

Social Security Act, 42 USC §§ 301-1305 – Suppl. 4 1934

Title II of the Act governs the Disability Insurance Benefits Program, Title XVI of the Act governs the Supplemental Security Income program. www.ssa.gov/OP_Home/ssact/ssact.htm

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Code of Federal Regulations

20 CFR § 404 addresses Title II Disability Insurance Benefits. 20 CFR § 416 addresses Title 16 Supplemental Security Income. www.ssa.gov/OP_Home/cfr20/cfrdoc.htm

Acquiescent Rulings (AR) and Social Security Rulings (SSRs).

Acquiescent Rulings explain how Social Security will apply decisions of the US Court of Appeals that are at variance with SSA’s national policies in adjudicating claimant under Title II and Title XVI of the Social Security Act. www.ssa.gov/OP_Home/rulings/ar-toc.html

Social Security Rulings are precedential decisions relating to the programs administered by the agency and are published under the authority of the Commissioner of Social Security.

Although SSRs do not have the force and effect of the law or regulations, they are binding on all components of the agency. www.ssa.gov/OP_Home/rulings/ar-toc.html

Program Operational Manual System (POMS)

POMS is the Social Security Administration’s primary manual of policy and procedures for the Agency’s field personnel. www.secure.ssa.gov/apps10

Hearings, Appeals, and Litigation Law Manual (HALLEX)

HALLEX is Social Security publication sets out the operating procedures used by the Office of Hearings Operations for processing and adjudicating claims at the hearing, Appeals Council, and federal civil action levels.  

3. Types of Disability Benefits

The Social Security Act creates for two broad categories of disability benefits – Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSID). While the

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two programs have different eligibility requirements, the definition of disability for adults is the same - “disability” means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment (or combination of impairments) which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” The term “disability” for children means that the child has a medically determinable physical or mental impairment (or combination of impairments);the impairments(s) results in marked and severe function limitations; and the impairment(s)has lasted (or is expected to last at least one year or to result in death.

There are five major types of Social Security disability benefits:

Title II - Disability Insurance Benefits – these benefits are paid to adults who have not reached full retirement and have earned enough work credits and meet the definition of

“disability.” The number of work credits required depends on the claimant’s age. Disabled before 24 years old – 6 credits in the 3 years prior to onset of disability. Disabled between age 24 and 30 – need credits for half of the amount of time between when the claimant turned 21 and the onset of disability. Disabled at 21 or older – need at least 20 credit over the last 10 years before disability.

Title II - Disabled Widow/Widower Benefits – these benefits are paid to the disabled widow, widower, or surviving divorced spouse of a deceased worker who earned enough Social Security credits prior to their death. To be eligible for this benefits program, the claimant must be meet the definition of “disability” and (1) be at least age 50, but not yet age 60, (2) have been married to the deceased spouse for not less than 9 months immediately prior to the deceased spouse for not less than 9 months immediately prior to the day in which the deceased spouse died, unless

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an exception applies, (3) be unmarried, unless the marriage can be disregarded, and (4) not be entitled to an equal or higher Social Security retirement benefit based on the claimant’s own work.

Title II - Disabled Adult Child Benefits – these benefits are pay to claimants who are (1) over the age of 18, (2) not married, (3) have a “disability” that began before the claimant was 22, and (4) has at least of parent who received Social Security benefits or is deceased but at the time of death was insured for Social Security benefits. The amount of the benefit depends on the worker’s earnings record, and there is a 5-month waiting period after the onset of disability before benefits begin. Spouses and dependent children of disabled workers are eligible to receive partial benefits. After receiving SSDI for two years, a person with a disability becomes eligible for Medicare.

Title XVI - Supplemental Security Income for Adults – these benefits are available for claimants who meet the definition of “disability” and have limited income and resources. For single individuals, the claimant has to have less than $2,000 in income and assets; married individuals have combined income and assets with spouse of less than $3,000.

Title XVI - Supplemental Security Income for Children – these benefits are available for persons who are neither married nor head of a household, is under the age of 18, or is under the age of 22 and is a student regularly attending school. Social Security will also consider income sources available to the child, including the parent(s) income and assets, and any step-parents income and resources but only if the child lives with the step parent and the natural or adoptive parent.

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4. Disability determination process

Disability applications are processed at the initial and reconsideration levels through the local SSA field offices and state agencies (usually called Disability Determination Services or DDS). The field office is responsible for verifying non-medical eligibility requirements, which may include age, employment, marital status, and Social Security coverage information. The field office then sends the case to a DDS for medical evaluation of disability.

The DDSs, which are fully by the federal government, are state agencies responsible for developing medical evidence and making the initial determination and reconsidered determination on whether or not a claimant is disabled or blind under the law. DDS will attempt to obtain the medical records from the claimant's own medical sources that are listed by the claimant or representative in the disability application. If that evidence is unavailable or insufficient to make a determination, the DDS will arrange for a consultative examination (CE) to obtain the additional information needed. Although the SSA rules state that the claimant's treating source is the preferred source for the CE, they rarely schedule a CE with the treating doctor and usually obtain the CE from an independent source. DDS will also send forms to the claimant and a close contact asking for information about the claimant’s activities of daily living and work history. These forms help DDS obtain information about the claimant’s illnesses and conditions affect their ability to function and perform everyday tasks, and to determine the demands of the claimant’s past work for use in the sequential evaluation process. Proper completion of the forms can facilitate a favorable decision early in the process and avoid fatal inconsistencies at the ALJ hearing. Adult function report - www.ssa.gov/forms/ssa-3373-bk.pdf; Third-Party Function Report - www.ssa.gov/forms/ssa-3380.pdf; and Work History Report - www.ssa.gov/forms/ssa- 3369.pdf.

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After completing its development of the evidence, trained staff at the DDS makes the disability determination at both the initial and reconsideration levels. Then, the DDS returns the case to the field office for appropriate action. If the DDS found that the claimant is disabled, SSA completes any outstanding non-disability development, computes the benefit amount, and begins paying benefits. If the claimant was found not to be disabled, the file is kept in the field office in case the claimant decides to appeal the determination.

Appeals from a Notice of Reconsideration go the local hearing office (currently called Office of Hearing Operations) for the scheduling of a hearing before an Administrative Law Judge (ALJ). In most disability cases, the ALJ’s decision is limited to them medical requirements of disability and non-medical decisions are made the Social Security.

5. Representing Social Security Claimants

Appointment of Representative – Social Security regulations provide that a claimant may appoint any attorney who is in good standing and (1) has the right to practice law before a court of a State, Territory, District, or island possession of the United States, or before the Supreme Court or a lower Federal court of the United States; (2) is not disqualified or suspended from acting as a representative in dealings Social Security; and (3) is not prohibited by any law from acting as a representative. Claimant may also appoint any person who is not an attorney to be their representative in dealings with Social Security if the person (1) is capable of giving valuable help to the claimant connection with the claim; (2) is not disqualified or suspended from acting from acting as a representative with Social Security; (3) is not prohibited by any law from acting as a representative, and (4) is generally known to have a good character and reputation. Persons lacking good character and reputation, include, but are not limited to, persons who have a final conviction

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of a felony or any crime involving moral turpitude, dishonesty, false statements, misrepresentation, deceit, or theft.

Use Form SSA-1696, Claimant’s Appointment of Representative, when representative is accepted. Submit the completed SSA Form 1696 and fee agreement to the appropriate Social Security field office based on the zip code of the claimant’s residence address. To determine the correct field office go to www.ssa.gov/locator and enter the claimant’s zip code. Do not submit the Form SSA-1696 or fee agreement to DDS. If the claim is pending in the hearing office or Appeals Council when you appointed, submit copies of the Form SSA-1696 and fee agreement to the respective office.

Direct payment of a Fee to a Representative – A representative seeking direct payment of his or her legal fee from Social Security must (1) complete and file Form SSA-1699, Registration for Appointed Representative Services and Direct Payment, and (2) complete the direct payment and affiliation in section 5 of Form SSA-1696, Claimant’s Appointment of Representative Form. Form SSA-1699 should be completed and faxed to the offices of Central Operations at 1-877-3827. You will receive your Representative Identification (Rep ID) once the registration. The instructions for the form state that you should allow 2 to 3 weeks to receive the notice

Fee Agreement and Fee Petition Process - The Act and SSA regulations prohibit representatives from charging or collecting any fee for representational services that SSA has not authorized, or that is more than the maximum amount SSA authorized. Sanctions include suspension or disqualification from practice before Social Security and the representative may also be subject to fines and imprisonment.

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Social Security has two mutually exclusive methods for representatives to have their fee approved for representation at the administrative level – (1) the Fee Agreement Process, or (2) the Fee Petition Process.

Fee Agreement - A fee agreement is a written statement signed by the claimant and the representative(s) who expect to charge and collect for legal services provided at the administrative level. This written statement details the contingency fee arrangement between the parties, and will only be approved when the claim results in a favorable decision with past-due benefits. Currently, SSA will approve a fee agreement if the fee specified in the fee agreement does not exceed the lesser of 25 percent of the past-due benefits or $6,000 (current fee cap). The appointed representative must submit the fee agreement before the date of the first favorable determination or decision for approval. If the representative does not submit a fee agreement before that date, SSA assumes that the Appointed Representative will either file a fee petition or waive the fee. Two-tier fee agreements that includes a provision limited the agreement’s application to services through a specific level of the administration process is permissible, with representative requesting a fee through the fee petition process for services provided beyond the specified level.

The fee agreement and fee petition processes are not interchangeable. However, if a representative elects the fee agreement process but SSA does not approve the agreement, the representative must file a fee petition if he or she wants to charge and collect a fee. Fee agreement provisions that will cause Social Securtiy to disapprove a fee agreement are provisions that: (1) that require a claimant to pay a minimum fee, (2) retains the right to petition for petition for an additional fee if 25 percent of past-due benefits exceeds the specified dollar cap, and (3) claimant appoints more than one representative and they do not sign a single fee agreement.

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Fee Petition Process – If the representative elects to use the fee petition process, the representative must file the fee petition with Social Security. When using the fee petition process, the representative should request fee approval only after he or she have completed all services for the claimant and any auxiliaries. Representatives have the option to petition either before or after Social Security effectuates the determination(s). Representatives can use fee petition form SSA- 1560-U4. Social Security will determine a reasonable fee for the provided on a claim, considering the purpose of the disability programs, and (1) the extent and type of services the representative performed; (2) the complexity of the case; (3) the level of skill and competence required of the representative in giving the services; (4) the amount of time the representative spent on the case;

(5) results the representative achieved; (6) the levels of review to which the representative took the claim and at which level he or she became the representative; and (7) the amount of fee requested for services provided, including any amount authorized or requested before but not excluding any amount of expenses incurred.

How to File an Application for Disability benefits - I encourage all clients to create their personal “my Social Security account” at www.ssa.gov prior to filing the application in order to access their earnings statement, to facilitate faster processing of their initial application, and to track the progress of their disability claim. Prior to the COVID pandemic, claimants could visit a Social Security field office and have a claims representative prepare the application. All Social Security offices are currently closed to the public due to the pandemic, except for rare exceptions, and this method of filing is no longer available. Claimants can schedule an appointment for a telephone interview with a Social Security representative who will file the application for the claimant by calling Social Security at 1-800-772-1213. Claimants can either apply online at www.ssa.gov on their own or with the assistance of a

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representative. When a representative files the application, the processing of the application differs depending on whether the claimant is present with the representative or not. If the claimant is present with the representative, the online process will require the representative to login into the claimant’s “My Social Securtiy Account” in order to verify the claimant’s identity. If the claimant is not present with the representative, the representative can complete the application online and Social Security will mail the claimant a summary of the application for the claimant’s review and signature, or a representative will call the claimant to review the information and take a telephone signature.

Information Needed for the Application

Biographical Information about the Claimant:

• Claimant’s date and place of birth and Social Security number.

• The name, Social Security number, and date of birth or age of claimant’s current spouse and any former spouse. Dates and places of marriage and dates of divorce or death (if appropriate).

• Names and dates of birth of children not yet 18 years of age.

• Claimant’s bank or other financial institution's Routing Transit Number and the account number.

Information about the Claimant’s Medical Condition(s):

• Name, address, and phone number of someone SSA can contact who knows about the claimant’s medical conditions and can help with the application.

• Information about the claimant’s medical illnesses, injuries, or conditions:

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o Names, addresses, phone numbers, patient ID numbers, and dates of treatment for all doctors, hospitals, and clinics.

o Names of medicines the claimant is taking and who prescribed them.

o Names and dates of medical tests the claimant has had and who ordered them.

Information about the Claimant’s Work History:

• The amount of money earned last year and this year.

• The name and address of the employer(s) for this year and last year.

• The beginning and ending dates of any active U.S. military service you had before 1968.

• A list of the jobs (up to 5) that the claimant had in the 15 years before the onset of disability and the dates the claimant worked at those jobs.

• Information about any workers' compensation, black lung, and/or similar benefits the claimant filed, or intends to file for in the future.

Electronic Records Express and eFolder – Almost all Social Security disability claims are electronic files that are accessible by appointed representatives when the claim is pending at Disability Determination Services, the hearing office, and the Appeals Council. Representatives can review and submit documents to the eFolder via Electronic Records Express when the case is pending at DDS, the hearing office, and the Appeals Council.