According to Delaware Online, fewer than 40 Delawareans have enrolled in the plan thus far. Federal Officials have been visiting healthcare clinics in recent weeks to help promote the plan that an estimated 4 million people nationally are eligible for. According to HealthCare.gov, Delaware and 22 other states have opted to have the US Department of Health and Human Services administer the plan. For Delaware residents that means that you apply for coverage directly from the federal government.

It is important to note that there are criteria that must be met in order to be eligible to purchase the plan, and the monthly premiums can still be significant. To qualify you must:

1. Be a citizen or national of the United States or lawfully present in the United States.
2. Have been uninsured for at least the last six months before you apply.
3. Have a pre-existing condition or have been denied coverage because of your health condition.

If you qualify (and can afford the premiums), the plan covers a broad range of benefits including primary care, hospital care, prescription medications, testing, and specialty care. Three types of plans are offered, the standard option, the extended option, and the HSA option. The difference between the plans are the monthly premium and the deductible before benefits begin. A detailed summary of the benefits is available from the Pre-Existing Condition Insurance Plan website.

The current monthly rates for the Pre-Existing Condition Insurance Plan for Delaware Residents are summarized below (please note that these rates may be adjusted in the future):

The standard and extended options both have separate deductibles for medical and prescription costs. Under the standard plan, the medical deductible for in-network care is $2,000 and the prescription deductible is $500. The extended plan has a $1,000 deductible for in-network care and a $250 deductible for prescription costs. The HSA option has a combined deductible of $2,500 for in-network medical and prescription costs. Copay and co-insurance benefits do not begin until after the calendar year deductible is spent. The maximum out-of-pocket medical costs under these plans is $5,950 for in-network care and $7,000 for out of network care.

Coverage under these plans begin based on when the application is completed. If your application is completed on or before the 15th of the month, coverage begins no later than the first day of the following month, if your application is completed after the 15th of the month, your coverage may not begin until the first day of the second calendar month after you apply.

To apply for benefits in States that the plan is administered by the US Department of Health and Human Services, you may complete and submit a paper application or apply online at https://www.pcip.gov/Apply.html. The following documentation is needed when applying for the federally administered program:

1. Denial letter from an insurance company licensed in your state that is dated within the past 12 months, or a letter in the past 12 months from an insurance agent or broker that shows that you are not eligible for one or more health insurance plans because of your medical condition; or,
2. Offer of individual insurance coverage within the past 12 months that you did not accept that has an exclusion for a pre-existing medical condition; or,
3. If you are under 19 (or you live in Massachusetts or Vermont), an offer of individual insurance coverage within the last 12 months that show a premium that is at least twice as much as the Pre-Existing Condition Plan premium for the Standard Option in your State.

To determine the Pre-Exisiting Condition Insurance Plan requirements for your State, visit http://www.pcip.gov or http://www.healthcare.gov.

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What does Medically Determinable Physical or Mental Impairment Mean?

A medically determinable physical or mental impairment is a medical condition that can be shown to exist by medically acceptable clinical and laboratory diagnostic techniques. (20 CFR §404.1508). Social Security Regulations specifically state, “a physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.”

Even if you have a number of symptoms that are preventing you from working, if you have not received a diagnosis, you cannot be found disabled. (See 20 CFR §404.1529). This is why medical treatment is so important to Social Security disability claims. If your symptoms, such as pain, fatigue, weakness, or nervousness, are not explained with medical signs or laboratory findings that show a medically determinable impairment, Social Security cannot determine that your symptoms affect your ability to do basic work activities. (See 20 CFR §404.1529).

Obtain a Medically Supported Diagnosis Before Applying for Disability Benefits.

If you are experiencing symptoms that prevent you from working, you must receive treatment to determine the cause of your limitations. Once you receive a diagnosis, your symptoms must be supported by signs and laboratory findings. “Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements.” (20 CFR §404.1528). Laboratory findings are “anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques.” (20 CFR §404.1528).

In the simplest form, you must receive treatment, your doctor must confirm that the symptoms you express are occurring, and test results should support the diagnosis. If you have not been diagnosed, or your diagnosis is not supported by signs and laboratory findings, you cannot be found disabled.

I suggest to my clients that they have open conversations with their doctors about their medical condition. If you are unable to obtain a diagnosis from your primary doctor, ask for a referral to a specialist. If you are diagnosed with a condition, but have not underwent any medical testing, ask if a test could confirm your diagnosis. Make sure that your doctors are asking you about your condition on each visit, and that you report any symptoms that you are experiencing.

Persistence is so important when you are suffering from serious symptoms affecting your ability to work. Make sure that your doctor understands what you are experiencing, and that her or she is helping you obtain an explanation and treatment for your symptoms. If your condition cannot be explained by a physical condition, also ask your doctor to explore possible psychological causes.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Show Notes: Social Security Disability Law Weekly Podcast Episode 7

• Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

• Issues during my week in practice
  • Difference between Social Security Disability Insurance and Supplemental Security Income Payments
    • Discussion of disability programs offered by the Social Security Administration and the difference between SSDI and SSI.
• Social Security News (Discussion of Topics Reported in the News and Blogs this Week)
  • Video Hearings vs. Traditional Disability Hearings: Why Video Hearings Might Be Your Best Bet by Jonathan Ginsberg of Social Security Disability Blog
    • Overview of the differences between Video Teleconference Social Security Disability Hearings and In-Person Hearings
  • Benefits for the Disabled Widow or Widower by Gordon Gates of the Social Security Disability Lawyer Blog
    • Discussion of the Disabled Widow or Widower program offered by the Social Security Administration

Closing Credits:

• Contact Steve Butler to Discuss Social Security Disability Law Weekly
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy
  • Facebook: http://facebook.com/SSALaw

I hope you enjoyed the seventh episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

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I meet with many individuals that are between the age of 62-65, and do not realize that they are able to pursue Social Security Early Retirement benefits and Social Security Disability Insurance benefits at the same time. These individuals normally assume that these programs are mutually exclusive, and that a decision has to be made to pursue one program or the other. In fact, the Social Security Administration will let individuals apply for both programs simultaneously.

There are some important reasons why individuals that are eligible for early retirement should consider applying for both programs; however, it is also important to know that there can be a negative impact on your Social Security payments if you are ultimately found not disabled.

What Happens when I Accept Early Retirement from Social Security?

When you elect to receive your Social Security Retirement at age 62 you are receiving a 25% reduction in your retirement benefit if you were born between 1943 and 1954. [See Social Security Administration’s Retirement Benefits by Year of Birth Page for reduction based on other years of birth.] This is a permanent reduction if you elect to start retirement at age 62. This means that if your full retirement benefit at 66 would be $1,000 per month, you will only receive $750 per month (for the rest of your life) if you retire early.

How Does Disability Impact My Early Retirement?

The exception to this lifelong reduction is if the Social Security Administration determines you are disabled at some point before you reach full retirement age. If you are found to be eligible for Social Security Disability and your payments start retroactively prior to the date you actually began receiving reduced retirement, your early retirement application is effectively withdrawn. The Social Security Administration will pay you the difference between your reduced retirement and your full Social Security benefit for each month that you have already been paid, and you will receive your full payment for each month going forward.

Example

For example, let us assume that an individual named John Smith was born on January 1, 1948. He turned 62 on January 1, 2010. John stopped working because of his health condition on May 2, 2009. Since he was unable to work, he applied for early retirement on January 1, 2010 when he turned 62. John’s full retirement rate is $1,000, but since he elected early retirement at 62, he is only entitled to $750 per month in retirement benefits. [If John is found disabled, he receives payment at his full Social Security rate of $1,000 per month]

Now since John has the necessary quarters of coverage for retirement, he is eligible to begin retirement benefits immediately when he turned 62. John is informed that he can also apply for disability since he stopped working because of a medical impairment that prevented him from continuing to perform work. John applies for Social Security Disability Insurance and alleges that his disability began on May 2, 2009.

The Social Security Administration determines on June 6, 2010 that John is disabled, and that his disability began on May 2, 2009. John is entitled to start disability payments in November 2009. He has already received early retirement benefits from January 2010 until May 2010. Since he was found disabled, he is entitled to his full Social Security rate of $1,000 per month. The Social Security Administration will pay John $1,000 for November and December 2009, and will pay him $250 per month from January 2010 until May 2010 (since he already received $750 per month from early retirement). His early retirement benefits will stop effective June 2010, and John will receive only his disability check of $1,000 per month going forward.

Since John was found entitled to Disability benefits prior to the date that his early retirement began, there is no reduction in his Disability payment. Even when John turns 66, he will continue to receive his full Social Security rate as long as he remained disabled until he turned 66. The benefit to John is that he received payments from January 2010 until May 2010 while he was waiting for his disability application to be decided. This would be important to John, because otherwise he would have no income during that period.

Warning

It is important to remember that if the individual in the example above had not been approved for Social Security Disability Insurance, he would have received the reduced retirement rate for the rest of his life. Individuals that are eligible to begin Early Retirement and apply for Disability should always remember that there is no guarantee that they will be approved for Disability benefits. If you do not want to risk receiving reduced retirement benefits for the rest of your life, then you should simply apply for Disability benefits if you are between the age of 62-65.

The second warning is that the Social Security Administration could determine that your disability began at a later date. If John had not been found disabled until May 2, 2010, his disability benefits would not begin until November 2010. Since he began retirement payments in January 2010, there would have been 10 months that he only received early retirement benefits. John would begin receiving disability benefits in November 2010, but his disability payment amount would be reduced by the number of months he already received early retirement. When John turns 66, he would have a permanent 10-month reduction on his retirement benefits.

In other words, when he turned 66, the Social Security Administration would pay John at a rate as if he had retired at age 65 and 2 months. For an individual born in 1948, starting benefits at age 65 and 2 months would result in a permanent reduction of 5.6%. John’s disability benefit and his retirement rate at age 66 would then be reduced to $944 per month. [Please see the Social Security Administration’s Retirement Benefits by Year of Birth Page for information about early retirement reduction rates based on year that you were born. See POMS RS 00615.110 for more information about benefit reductions when entitled to both Social Security Retirement and Social Security Disability Insurance Benefits.]

What to Remember

It is important to understand what your options are if you are eligible to apply for both disability and early retirement. Prior to pursuing both retirement and disability benefits, it is normally a good idea to speak with someone that has knowledge of the interaction between the two programs. If you decide to proceed without the assistance of an attorney, ask the Social Security Administration to run through scenarios with you of what will happen if you are found disabled on the date that you stopped working, but also if you are not found disabled until a later date, or if you are never found disabled.

It is also normally a good idea to consult with a financial planner when deciding how to proceed with early retirement benefits. A financial planner will be able to review the positive and negative consequences of receiving retirement payments at reduced rate.

This article was written by Steven Butler. Steven is a partner atLinarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Episode 6 of Social Security Disability Law Weekly Podcast includes discussion of: importance of local attorneys in Social Security Disability Claims; use of an iPad in Administrative Law Judge Hearings; don’t blame the messenger when unpleasant information is communicated about your disability or SSI claim; Social Security Denials Remain High in Delaware; impact of disability on Social Security Retirement benefits; and concept of medical record lag in Social Security claims. Download Episode 6 or press play below to listen in your browser.

Show Notes: Social Security Disability Law Weekly Podcast Episode 6

• Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

• Off Topic
  • Support local attorneys – discussion of advantages of having a local attorney
  • Is my attorney using an iPad?
• Issues during my week in practice
  • Don’t Blame the Messenger!
    • Finding out that you don’t qualify for Social Security disability can be difficult, but it is important to remember that the person communicating the message to you isn’t the one making the rules.
• Social Security News (Discussion of Topics Reported in the News and Blogs this Week)
  • Social Security Denials Remain High by Mike Chalmers of the Delaware News Journal
    • Further discussion of the relatively high denial rate for Social Security disability claims by Delaware Administrative Law Judges
  • Social Security Disability Benefits at Retirement Age by Scott Lewis of Indiana Social Security Disability Lawyer Blog
    • Description of what happens when you reach retirement age and are on disability
    • Reminder to consider loss of benefit when on Early Retirement instead of disability
  • The Medical Records Time Lag by Gordon Gates of the Social Security Disability Lawyer Blog
    • More complete medical records can help you win your claim

Closing Credits:

• Contact Steve Butler to Discuss Social Security Disability Law Weekly
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy
  • Facebook: http://facebook.com/SSALaw

I hope you enjoyed the sixth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

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Social Security Disability Law Weekly, Episode 5, includes discussion of use of technology in disability claims; alcohol abuse and mental health claims; importance of trying work before applying for disability; problem of being disabled and uninsured; how to qualify for Social Security based on mental illness/bipolar disorder; improve your Social Security Reconsideration appeal; and, more reasons to file an appeal of your disability denial. Download Episode 5 or press play below to listen in your browser.

Show Notes: Social Security Disability Law Weekly Podcast Episode 5

• Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

• Why Technology is Important to Social Security Disability Law
  • Discussion of my attendance at American Bar Association TechShow in Chicago
  • Discussion of how technology has improved Social Security’s processing of disability claim files
• Question from Last Week’s Podcast
  • Does Alcohol Dependence in Mental Health/Depression claims guarantee that your disability claim will be denied?
• Issues during my week in practice
  • Attempting to obtain disability benefits without ever attempting to work
    • Discussion of importance of trying work before applying for Supplemental Security Income Payments
    • Link to Delaware Division of Vocational Rehabilitation
  • Serious medical problems without medical insurance
    • Review of how lack of medical insurance limits options for individuals that have disabilities
    • Link to Delaware Division of Social Services Medicaid Information Page
• Social Security News (Discussion of Topics Reported in the News and Blogs this Week)
  • Bipolar Disorder and Social Security Disability by Aaron Rifkind of Illinois Social Security Blog
    • Explanation of the Medical Listing criteria for qualifying for disability benefits based on Bipolar Disorder
    • Important to also determine if you qualify based on your Residual Functional Capacity
  • Four Tips for Filing for Your Social Security Disability Reconsideration by Cavey Barrett, Attorneys at Law
    • Steps you can take to improve your reconsideration appeal
  • Another Reason to Appeal Your Denial by Gordon Gates of the Social Security Disability Lawyer Blog
    • Discussion of how high turnover at Disability Determination Services impacts denial rates at the initial application and reconsideration levels

Closing Credits:

• Contact Steve Butler to Discuss Social Security Disability Law Weekly
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy
  • Facebook: http://facebook.com/SSALaw

I hope you enjoyed the fifth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

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Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

Episode 4 includes discussion of: emergency room treatment in disability claims; Delaware District Court Appeals; Delaware State Bar Association Seminar on Social Security; Disability Onset Date when filing a second application for benefits; Attorneys at Administrative Law Judge Hearings; and high Global Assessment of Functioning (GAF) scores. Download Episode 4, or press play below.

Show Notes: Social Security Disability Law Weekly Podcast Episode 4

-          Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

-          Issues during my week in practice

• Emergency Room Treatment as Primary Care
  • Discussion of using hospital as only source of treatment
  • Suggestion to consider low-cost medical clinics as alternative (Delaware Low-Cost Healthcare)
• Meeting to discuss Social Security Appeals with Chief Judge Gregory Sleet of the United State District Court for the District of Delaware
  • Chief Judge Sleet brought together Delaware Attorneys that practice in the Social Security area with representatives from the Social Security Administration General Counsel’s office to discuss Social Security Issues at the District Court level
• Delaware State Bar Association Social Security Disability Ethics Presentation
  • Discussion about Delaware State Bar Association CLE on “Can Social Security Disability Help Your Client?” (Registration Form)

-          Social Security News (Discussion of Topics Reported in the News and Blogs this Week)

• Disability Onset in Subsequent Claims by Aaron Rifkind of Illinois Social Security Blog
  • Social Security allows individuals to file a new claim for disability benefits after being denied by an Administrative Law Judge, but you can only be found disabled beginning the day after the ALJ denial
  • What date should you use as your alleged onset date if you file a new claim
• Am I Required to Have an Attorney at a Hearing by Tim Moore of Disability Secrets Blog
  • Discussion of factors that should be considered when determining if you should be represented at an ALJ hearing
• Is GAF of 65 Too High? By Gordon Gates of the Social Security Disability Lawyer Blog
  • Global Assessment of Functioning or GAF scores are a tool used by Mental Health Providers (psychiatrist, psychologist and therapists) to provide a snapshot of your functioning at the time you are evaluated
  • GAF scores of 51 or higher, normally cause problems in being approved for Social Security Disability based on mental illness
  • Disability cannot be determined solely based on a GAF score

Closing Credits:

-          Contact Steve Butler to Discuss Social Security Disability Law Weekly

• DelawareDisability.com Contact Form
• Email: Steve@SSAlaw.us
• Twitter: @DisabilityGuy
• Facebook: http://facebook.com/SSALaw

I hope you enjoyed the fourth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

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Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Disability Insurance Benefits and Supplemental Security Income payments. The podcast is hosted by Steven Butler of Linarducci & Butler, PA.

Episode 3 focuses on: Impact of Vacation on Disability Claim; Completion of Materials for “Can Social Security Disability Help Your Client?” seminar; What if Disney Ran the Social Security Administration; How Social Security Benefits are Taxed; How a Disability Attorney Can Help Your Claim; SSI Benefits while in a Public Institution; and, Complaining About ALJ Bias. Download now or press play below.

Show Notes:

-          Now Available in iTunes (subscribe in iTunes)

This Week’s Topics:

-          Issues During Week in Disability Law Practice

• Impact of Vacation on Disability Claim
• Completion of Materials for Social Security Disability Ethics Presentation
  • Discussion about Delaware State Bar Association CLE on “Can Social Security Disability Help Your Client?” (Registration Form)
• What if Disney Ran the Social Security Administration

-          Social Security News (Discussion of Topics Reported in the News and Blogs this Week)

• How are my Social Security Benefits Taxed? – Blog post by Sheri Abrams
  • Discussion of importance of seeking help from a tax professional once awarded Disability Benefits
  • Social Security Frequently Asked Questions about Tax
    • Do I have to Pay Income Tax on my Social Security? (Social Security Administration
    • Withholding Federal Income Tax from Social Security (Social Security Administration)
    • Social Security and Income Tax (National Organization of Social Security Claimants’ Representatives)
• How a Disability Lawyer Helps Your Claim – Blog post by Gordon Gates
  • Overview of the ways that an attorney helps an individual applying for Social Security Disability Benefits
  • Also see:
    • A Doctor or a Lawyer for Your Disability Claim – Blog post by Gordon Gates
    • Advantages of Being Represented for Social Security Disability Claim – Blog post on DelawareDisability.com
• SSI Benefits while in a Public Institution
  • My SSI Benefits Stopped While I Was in the Hospital, Why? – Blog Post by Tomasz Stasiuk
  • Discussion of why SSI benefits are terminated while in a public institution
• Complaining about ALJ Bias – Blog Post by Jeffrey Delott
  • Discussion about Administrative Law Judge Bias Complaint Process
  • How to File an Unfair Treatment Complaint (Social Security Administration)
  • Administrative Law Judge/Public Alleged Misconduct Complaints System (Social Security Public Notice)

Closing Credits:

-          Contact Steve Butler to Discuss Social Security Disability Law Weekly

• DelawareDisability.com Contact Form
• Email: Steve@SSAlaw.us
• Twitter: @DisabilityGuy
• Facebook: http://facebook.com/SSALaw

I hope you enjoyed the third episode. Episode 1 and Episode 2 are still available. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

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Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Disability Insurance Benefits and Supplemental Security Income payments. The podcast is hosted by Steven Butler of Linarducci & Butler, PA.

Episode 2 focuses on: preparation for “Can Social Security Disability Help Your Client?” seminar; importance of following prescribed treatment in mental illness claims; the durational requirement of the Social Security Administration disability programs; enactment of new law allowing Social Security to continue to directly pay fees for SSI representation; impact of incarceration on disability benefits; and, the Social Security Administration hearing backlog. Download Podcast or press play below.

Show Notes:

-          Now Available in iTunes (subscribe in iTunes)

This Week’s Topics:

-          Issues During Week in Disability Law Practice

• Preparation for Social Security Disability Ethics Presentation
  • Discussion about Delaware State Bar Association CLE on “Can Social Security Disability Help Your Client?” (Registration Form)
• Mental Illness and Disability Benefits
  • The Law versus the Reality and the Importance of Following Prescribed Treatment
• Durational Requirement of the Social Security Administration Disability Programs
  • Reviews requirement to have Medically Determinable Impairment that is expected to last at least 12 Months or result in death

-          Social Security News (Discussion of Topics Reported in the News and Blogs this Week)

• HR 4532 – Social Security Disability Applicants’ Access to Professional Representation Act of 2010 signed into law February 27, 2010
  • Explanation of provisions of new law
    • Makes Permanent Attorney Fee Withholding in SSI Claims
    • Makes Permanent Program that Allows Qualified Non-Attorneys to be Directly Paid for Representation of Clients in SSI and SSDI Claims
• SSDI & SSI During and After Incarceration
  • Discussion of Blog Post by Jonathon Ginsberg – explaining eligibility for disability payments while incarcerated
• Social Security Disability Hearing Backlog Has Declined
  • Focuses on Charles Hall’s stories about reduction of hearing backlog and observations of how this impacts Delaware Administrative Law Judge Hearings
• Disability Blog Roundups
  • Bi-Monthly Social Security Disability Roundup by Gordon Gates
  • Monthly Social Security Disability Roundup by Aaron Rifkind

Closing Credits:

-          Contact Steve Butler to Discuss Social Security Disability Law Weekly

• DelawareDisability.com Contact Form
• Email: Steve@SSAlaw.us
• Twitter: @DisabilityGuy

I hope you enjoyed the second episode. Episode 1 is still available. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

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Today the National Organization of Social Security Claimants’ Representatives (NOSSCR) advised its members that HR 4532, the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ was signed into law by President Barack Obama on February 27, 2010.

This legislation is important because it permanently enacted fee withholding and direct payment of fees in Supplemental Security Income (SSI) cases and allows non-attorney representatives the option of being directly paid for representation of claimants in Social Security Disability Insurance (SSDI) claims and SSI.

Both of these provisions were enacted as a five-year demonstration project in the “Social Security Protection Act of 2004” that was set to sunset on March 1, 2010. By signing the bill on February 27, 2010, President Obama has allowed the Social Security Administration to continue to withhold fees for representation provided in SSI claims.

Importance of Fee Withholding in SSI Claims

Prior to SSI fee withholding, it was difficult for individuals pursuing only SSI claims to find representation. (SSI is a poverty-based disability program that is available only for individuals with little or no income or assets. Normally individuals that only qualify for SSI have limited work histories). Since there was no avenue for direct payment in SSI only claims prior to the demonstration project, it was difficult for legal representatives to be paid in SSI claims. Although the Social Security Administration would approve an SSI fee, attorneys were required to collect the fee directly from the individual that was awarded benefits.

I am happy to see that the SSI fee withholding provision has now become permanent. This will help individuals that only qualify for SSI payments to continue to receive representation for their claims. If this bill had not been passed, it is likely that a large population of disabled individuals would have lost access to legal representation.

Concern about Non-Attorney Representative Provision

The second provision of the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ made permanent a demonstration project that permits certain non-attorney representatives to have fees withheld and directly paid by the Social Security Administration. (This provision places qualified non-attorney legal representatives in the same position as licensed attorneys.) Although this provision was supported by NOSSCR, I have concerns about the impact this provision has on the quality of legal representation.

In order to qualify for fee withholding, individuals must only demonstrate that they have a bachelor’s degree or equivalent education, possess malpractice liability insurance, pass a criminal background check, pass an examination testing their knowledge of relevant provisions of the Social Security Act, and demonstrate ongoing completion of qualified continuing education courses. This is very different from the qualifications required of a licensed attorney.

Licensed attorneys are required to pass the State Bar Examination of at least one State in order to qualify to practice before the Social Security Administration. We are required to uphold the provisions of Social Security Administration, and are governed by professional conduct rules of the State (or States) that license us to practice law. Not only can our right to represent claimants before the Social Security Administration be stripped for unethical behavior, we can also face disciplinary actions from our own State and lose our right to practice law.

Enhanced Duties of Attorneys/Lawyers

As an attorney I am strictly governed in the handling of client money; in confidentiality of information I learn; in competency to perform my job; in management of my non-lawyer assistants; and in the content of my advertising materials. I must hold bachelor’s degree, have an accredited legal education, and pass an intense Bar Examination. This is important because legal rights are at issue when you are pursuing Social Security disability benefits. The representation permitted by this legislation would not normally be permitted by State Law.

I am not suggesting that non-attorney representatives are not capable of providing quality representation; however, I am concerned that they can advertise themselves in a way that does not make clear that they are not an attorney, and they are not required to adhere to the same ethical standards that an attorney must. I have seen non-attorney representatives engage in behavior that is intentionally misleading to clients and that would be a violation of the attorney rules of professional conduct. Although attorneys may also be guilty of this behavior, clients can file disciplinary actions that must be investigated when an attorney commits these acts. The Social Security Provisions fail to provide this same protection to disability applicants.

It is important that when an individual seeks representation, that they are aware of the experience and qualifications of their legal representation. Although a non-attorney representative can call himself or herself a legal representative, you must remember that these individuals are not required to have a formal legal education, and they are not required to follow the same ethical code that an attorney must.

For individuals seeking legal representation for Social Security Disability, remember that the fee permitted for a non-attorney representative is the same as an attorney representative. Realize that licensed attorneys are required by law to uphold a higher ethical standard and the violation of our professional ethics code can result in not only malpractice, but also the loss of the right to practice law. Inquire about an individual’s experience, qualifications, and legal philosophy prior to choosing a legal representative for a disability claim, and choose the individual that you think will best represent your interests.

This article was written by Steven Butler. Steven is a partner atLinarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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