Federal Register, Volume 76 Issue 145 (Thursday, July 28, 2011)

[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Rules and Regulations]
[Pages 45184-45195]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19026]

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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: Interim final rules with request for comments.

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SUMMARY: We are revising our rules to implement amendments to the
Social Security Act (Act) made by the Social Security Disability
Applicants' Access to Professional Representation Act of 2010 (PRA). We
are making 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. We also are
revising some of our eligibility policies for non-attorney
representatives under titles II and XVI of the Act.

DATES: These rules are effective August 29, 2011.
Comment Date: To ensure we consider your comments, we must receive
them by September 26, 2011.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2010-0025 so
that we may associate your comments with the correct regulation.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number
SSA-2010-0025. The system will issue a tracking number to confirm your
submission. You will not be able to view your comment immediately
because we must post each comment manually. It may take up to a week
for your comment to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Mail your comments to the Office of Regulations, Social
Security Administration, 107 Altmeyer Building, 6401 Security
Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at http://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.

FOR FURTHER INFORMATION CONTACT: Joann S. Anderson, Office of Income
Security Programs, Social Security Administration, 6401 Security
Boulevard, Baltimore, MD 21235-6401, (410) 965-6716. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-

[[Page 45185]]

1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security
Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

Claimants may use representatives to help them with their claims
for benefits before us. Prior to March 2, 2004, the Act authorized us
to withhold 25% of a claimant's past-due benefits under title II of the
Act when the claimant hired an attorney representative and to pay the
attorney's fees directly from the withheld amounts.\1\ The Social
Security Protection Act of 2004 (SSPA) amended section 1631(d)(2) of
the Act and authorized us for five years to withhold 25% of a
claimant's past-due benefits in claims filed under title XVI of the Act
and pay any approved fee directly to the claimant's attorney.\2\ The
SSPA also authorized a five-year demonstration project during which we
could similarly withhold 25% of the past-due benefits for claims filed
under titles II and XVI of the Act and pay fees directly to non-
attorney representatives who met specific requirements.\3\ Both SSPA
provisions were set to expire on February 28, 2010.\4\
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\1\ 42 U.S.C. 406.
\2\ Public Law 108-203, section 302. The authority began
February 28, 2005.
\3\ Section 303 of the SSPA.
\4\ Sections 302(c)(2) and 303(e)(2) of the SSPA.
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The SSPA specified five requirements that a non-attorney
representative had to meet to be eligible for direct fee payment. The
representative had to:
(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 wrote and administered, which
tested 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 determined 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 were 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
SSPA required that the continuing education courses, and the
instructors providing the education courses, meet our prescribed
standards.\5\
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\5\ Section 303(b) of the SSPA.
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The SSPA also gave us the discretion to add requirements and
authorized us to assess reasonable fees to cover our cost of
administering the demonstration project requirements.\6\
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\6\ Sections 303(b) and (c) of the SSPA.
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We published several notices in the Federal Register that solicited
public input and described the policies we would use to implement these
requirements and the fee assessment.\7\ Using our discretion, we also
added a sixth requirement--representational experience. We describe in
more detail below how we implemented these requirements under the SSPA.
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\7\ 69 FR 50431 (Aug. 16, 2004), 69 FR 77307 (Dec. 27, 2004), 70
FR 2447 (Jan. 13, 2005), 70 FR 14490 (Mar. 22, 2005); 70 FR 41250
(July 18, 2005), and 72 FR 46121 (Aug. 16, 2007).
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We also published interim final rules and final rules to include
information in our regulations about the SSPA, such as the
demonstration project, the withholding and direct fee payment
provisions for non-attorney representatives, direct fee payment to
attorney representatives under title XVI of the Act, and the SSPA's
five-year sunset date of February 28, 2010.\8\
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\8\ See 72 FR 16720 (Apr. 5, 2007), 72 FR 44765 (Aug. 9, 2007),
and 20 CFR 404.1717(a) and (c), 416.1517(a) and (c), and
416.1530(e).
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The PRA

On February 27, 2010, Congress enacted the PRA and revised the Act
in two main ways.\9\ First, it permanently extended our authority to
withhold 25% of a claimant's past-due benefits and directly pay any
authorized fees to attorney representatives for claims filed under
title XVI of the Act.\10\ To accommodate this change, we are revising
our rules in final sections 416.1530 to remove the sunset date and
making other conforming changes.
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\9\ Public Law 111-142.
\10\ Section 2 of the PRA.
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Second, the PRA permanently extended our authority to withhold 25%
of past-due benefits and directly pay any authorized fees to eligible
non-attorney representatives under titles II and XVI of the Act.\11\
The PRA includes nearly identical language to the SSPA about the five
mandatory requirements for direct fee payment, our discretion to add
requirements, and our ability to assess representatives a reasonable
fee to cover the cost of administration. Based upon our experience with
the demonstration project, in these interim final rules we are
modifying how we implement these provisions to help non-attorney
representatives more easily understand and comply with our requirements
and process.
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\11\ Section 3 of the PRA.
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The following information explains how we have been implementing
the SSPA's requirements, how we will implement the PRA, and the
revisions we are making to our rules.

Application Process

To implement the requirements of the SSPA, we required non-
attorneys who wanted to receive direct fee payment to apply with us. We
held one application period per year through 2009, except for the first
year when we held two application periods. We required any non-attorney
representative who wanted to be eligible to receive direct fee payment
to complete an application, submit the required documentation, and pay
the application fee. We required applicants to postmark their
applications by the last day of the application period. We also gave
applicants who timely paid the application fee 6 weeks to cure defects
in an incomplete application. After we verified that all other
requirements had been met, we permitted the applicant to take our
written examination.
We allowed an applicant who did not complete the application in a
timely manner, pay the application fee, or pass the examination, to
reapply during any subsequent application period. However, we required
the applicant to complete an application, pay an application fee, and
meet the requirements each time he or she reapplied to take the
examination.
We have decided to change two of our procedures in order to
streamline the application process. As explained above, we previously
verified that each applicant met the education or equivalent
qualifications, insurance, and criminal background check requirements
before we permitted him or her to take the examination. Under these
rules, an applicant must indicate that he or she meets the education or
equivalent qualification requirement and pass the criminal background
check before we permit the applicant to take the examination. However,
we will not request documentation or verify that an applicant meets the
education or equivalent qualifications and insurance requirements until
after he or she takes and passes the examination. This change will help
us save resources because we will not need to verify information about
applicants whom we

[[Page 45186]]

determine, based on information in their applications, to be ineligible
to take the examination, or who do not pass the examination.
Second, instead of the 6-week time period we currently give an
applicant to cure defects in his or her application, we will make this
process consistent with our protest procedures and give an applicant 10
calendar days from the date we notify him or her that there is a defect
in the application to correct the problem. We will permit only an
applicant who both timely submits the application and timely pays the
application fee to cure defects in his or her application. We are
making this change because we will require an applicant to provide less
documentation before he or she passes the examination under these
rules.
We are adding these requirements in final sections 404.1717(a)(1),
(b), and (f) and 416.1517(a)(1), (b), and (f).

Application Fee

Both the SSPA and the PRA allow us to assess reasonable fees to
cover the cost of administering the requirements for non-attorney
representative eligibility for direct fee payment, such as the cost of
administering the written examination and conducting criminal
background checks.\12\ After Congress enacted the SSPA, we published
two notices in the Federal Register that explained how we administered
the application fee process.\13\
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\12\ Section 303(c) of the SSPA and section 3(a) of the PRA.
\13\ 70 FR 2448 and 70 FR at 41252.
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We set the fee at $1,000 per applicant, specified the means of
payment, and required applicants to pay the fee when they submitted
their applications. We would refund or apply the fee to a subsequent
application period in two circumstances:
If the contractor who administered the demonstration
project for us was at fault for failing to administer an examination
and an applicant did not take the rescheduled examination; or
If circumstances beyond the applicant's control, such as a
death in the applicant's immediate family, a documented illness of the
applicant, or a transportation problem that could not have been
reasonably anticipated and planned for, prevented an applicant from
taking a scheduled examination.
We assessed whether the applicant's circumstances warranted a
refund, considering basic principles of fairness and sound management.
We would not refund or credit a fee to a subsequent application if
an applicant:
Took and failed the examination; or
Failed to arrive on time for an examination because of
circumstances within the applicant's control, such as a traffic problem
or a child-care problem of a type that could have been anticipated and
planned for.
Our action about whether to provide a refund or apply a fee to a
future application period was final and not subject to further review.
Most of these requirements have worked well, and we are adding them
in final sections 404.1717(a)(2) and (c) and 416.1517(a)(2) and (c).
However, we are making three changes to our current procedures.
First, we will refund the application fee instead of applying the fee
to a subsequent application if: (1) We fail to administer a scheduled
examination and an applicant is unable to take the rescheduled
examination, or (2) we agree that circumstances beyond the applicant's
control that could not have been reasonably anticipated and planned for
prevented the applicant from taking a scheduled examination. This
change will give applicants use of the money until they apply again,
and it will help us administer the direct fee payment program more
efficiently. Second, we are no longer going to use the ``principles of
fairness and sound management'' test to determine when to refund an
application fee. Instead, we will consider an applicant's individual
circumstances. Examples of circumstances that we may consider to be
beyond an applicant's control that cannot reasonably be anticipated or
planned for include a death in the applicant's immediate family or the
documented illness of the applicant or the applicant's immediate family
member. However, we will not refund the application fee if: (1) An
applicant took and failed the examination, or (2) an applicant failed
to arrive on time for the examination because of circumstances within
the applicant's control that could have been anticipated and planned
for. Finally, these interim final rules do not specify the application
fee amount. If we decide to change the current application fee of
$1,000, we will notify the public through appropriate methods and may
announce the changes on our Web site: http://www.socialsecurity.gov/representation. We will notify applicants of any change in the
application fee amount in the application package.

Education or Equivalent Qualifications

For a non-attorney representative to receive direct fee payment,
the SSPA and the PRA both require either that a representative have ``a
bachelor's degree from an accredited institution of higher education,''
or that we determine that the representative has ``equivalent
qualifications derived from training and work experience.'' \14\ After
the SSPA, we published a notice in the Federal Register that explained
how we would administer this requirement.\15\ We stated how we would
determine that an applicant who did not have a qualifying bachelor's
degree could meet the equivalent qualifications requirement by using a
formula that balanced the applicant's years of education and his or her
relevant professional experience:
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\14\ Section 303(b)(1) of the SSPA and section 3(a) of the PRA.
\15\ 70 FR at 2448-49.
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If the applicant did not have a bachelor's degree, but had
three years or more of undergraduate study at an accredited institution
of higher learning, the applicant must have had at least one year of
relevant professional experience, at least six months of which must
have involved claims for benefits under title II or XVI of the Act;
If the applicant had at least two, but less than three
years of undergraduate study at an accredited institution of higher
learning, the applicant must have had at least two years of relevant
professional experience, at least one year of which must have involved
claims for benefits under title II or XVI of the Act;
If the applicant had at least one, but less than two years
of undergraduate study at an accredited institution of higher learning,
the applicant must have had at least three years of relevant
professional experience, at least two years of which must have involved
claims for benefits under title II or XVI of the Act; or
If the applicant had less than one year of undergraduate
study at an accredited institution of higher learning, or no
undergraduate education, the applicant must have received a high school
diploma or a General Educational Development (GED) certificate and have
had at least four years of relevant professional experience, at least
two years of which must have involved claims for benefits under title
II or XVI of the Act.\16\
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\16\ 70 R at 2448-2449. Applicants who possessed a juris doctor
degree could only participate in the demonstration project if they
did not qualify to receive direct fee payment as attorneys under 42
U.S.C. 406 and 1383.
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We also considered relevant professional experience to be work
through which the applicant demonstrated familiarity with medical
reports and the ability to describe and assess mental or physical
limitations. We stated that applicants could gain

[[Page 45187]]

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 also considered relevant
professional experience to include work involving claims for benefits
under title II or XVI of the Act. We asked applicants to show that they
met this requirement before they took the examination.
We have found it cumbersome to administer this formula for
balancing years of education and relevant professional experience. To
help simplify the application process, we have decided not to use this
formula. Instead, we will now require applicants to demonstrate that
they have either:
A bachelor's degree from an accredited institution of
higher learning, or
At least four years of relevant professional experience
and either a high school diploma or GED certificate.
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.
We will ask for proof of an applicant's education, appropriate
training, or work experience after the applicant passes the
examination. The kinds of proof we may accept include, but are not
limited to, copies of an official education transcript, copies of an
Internal Revenue Service Form W-2 (Wage and Tax Statement), or letters
from an applicant's employer verifying the length and type of
employment.
We are adding these requirements in final sections 404.1717(a)(3)
and 416.1517(a)(3).

Written Examination

For a non-attorney representative to receive direct fee payment,
the SSPA and the PRA both require the representative to pass an
examination that we write and administer that ``tests [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].'' \17\
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\17\ Section 303(b)(2) of the SSPA and section 3(a) of the PRA.
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After the SSPA, we published a notice in the Federal Register that
explained how we would administer this requirement.\18\ We said that we
would administer written examinations that included 40-50 multiple-
choice questions in English only. We offered two examinations during
the first year of the demonstration project. From 2006 through 2009, we
offered the test once per year on a weekday. The test-takers had open-
book access to reference materials that we supplied, such as the most
recent edition of the Compilation of the Social Security Laws, Volume
1, and our regulations in 20 CFR chapter III. We based the examinations
on situations arising from the subject areas in the reference materials
and considered a score of 70 to be passing. We allowed an applicant who
failed the examination to reapply to take the examination during a
subsequent application period and provided an applicant with the
opportunity to protest a failing score.
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\18\ 70 FR at 2450.
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We are adding the requirement that a non-attorney representative
take and pass our written examination in final sections 404.1717(a)(5)
and 416.1517(a)(5). However, we will specify the details of how we
administer the examination, the contents of the examination, and our
scoring procedures through other means of communication, such as on our
Web site.
While we do not anticipate changing how we administer the
examination requirement at this time, we may change this process in the
future without publishing a notice in the Federal Register. We will
notify the public and applicants of any relevant changes through
alternate methods, such as through our Web site: http://www.socialsecurity.gov/representation.

Liability Insurance

For a non-attorney representative to receive direct fee payment,
both the SSPA and the PRA require that the representative ``secure[]
professional liability insurance, or equivalent insurance, which [we
determine] to be adequate to protect claimants in the event of
malpractice by the representative.'' \19\
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\19\ Section 303(b)(3) of the SPA and section 3 of the PRA.
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In the Federal Register notices that we published after Congress
passed the SSPA, we explained how we would administer this
requirement.\20\ At first, we required applicants to have a minimum
total annual amount of coverage of $1 million (for all incidents in
that year), plus coverage of $250,000 per incident for coverage of
errors and omissions committed by the non-attorney representative. We
later reduced the per-incident minimum coverage to $100,000 per
incident and decided to consider business liability insurance as
professional liability insurance. For professional liability insurance,
we also changed the minimum annual aggregate amount to $500,000. For
business liability insurance, we set the minimum annual aggregate
amount in accordance with the following schedule:
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\20\ 70 FR at 2449 and 70 FR at 41251.

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Number of covered employees Minimum aggregate amount
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1 to 10.................................... $500,000.
11 to 25................................... $1 million.
26 to 50................................... $2 million.
51 to 100.................................. $3 million.
101 to 200................................. $4 million.
201 or more................................ $5 million.
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We believed that these insurance coverage amounts would adequately
protect claimants in the event of malpractice by non-attorney
representatives, while increasing the ability of non-attorney
representatives who wished to participate in the demonstration project
to obtain insurance. We also stated that these amounts were consistent
with insurance agency practices and standards, which emphasized the
per-incident coverage and relied on graduated schedules in increasing
minimum aggregate amounts.
Under these procedures, a non-attorney representative must use a
firm licensed to provide insurance in the State in which the non-
attorney representative conducts business to underwrite the insurance
policy. We also required the policy to provide coverage for liability
insurance claims made in those States in which the non-attorney
representative represents claimants before us. We required an applicant
to submit proof that he or she had the required insurance coverage
before the application period closed to be able to take the
examination. We also required non-attorney representatives who
established eligibility to participate in the demonstration project to
maintain their insurance coverage to continue to be eligible to receive
direct fee payment.
We have found some of the current requirements to be ineffective
because some representatives have canceled

[[Page 45188]]

their insurance coverage without informing us. To help ensure that non-
attorney representatives maintain adequate liability insurance, we are
revising how we will apply this requirement.
We will now require non-attorney representatives who want to
receive direct fee payment to provide their initial proof of insurance
coverage after passing the examination. We will, at various times,
request that representatives provide proof that they have maintained
professional or business liability insurance coverage in amounts we
prescribe. If we find that a representative has not maintained
continuous coverage since our last verification, the representative
will be ineligible for direct fee payment for at least 6 full calendar
months. We provide more details about this in the Ineligibility and
Protest Procedures section, below.
We are revising our rules to require that each eligible non-
attorney representative ``[p]rovides proof of and maintains continuous
liability insurance coverage in an amount we prescribe'' in final
sections 404.1717(a)(6) and 416.1517(a)(6). We will specify the amount
of required insurance coverage in our subregulatory instructions and
periodically adjust the required coverage amounts to protect claimants
adequately. We are continuing to require representatives to have
professional or business liability insurance coverage in the same
amounts listed earlier. However, we may change these amounts each year.
If we change them in the future, we will announce the changes by the
end of any examination application period for that year. We will notify
the public of any relevant changes through alternate methods, such as
through our Web site: http://www.socialsecurity.gov/representation.

Criminal Background Check

For a non-attorney representative to receive direct fee payment,
the SSPA and the PRA both require that a ``representative has undergone
a criminal background check to ensure the representative's fitness to
practice before [us].'' \21\
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\21\ Section 303(b)(4) of the SSPA and section 3 of the PRA.
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After the SSPA, we published a notice in the Federal Register that
explained how we would administer this requirement.\22\ Under those
procedures, we would reject any applicant who:
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\22\ 70 FR at 2449.
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Had been suspended or disqualified from practice before
us;
Had a judgment or lien assessed against him or her by a
civil court for malpractice or fraud;
Had a felony conviction;
Engaged in substantial misrepresentation in submitting his
or her application or supporting materials for the application;
Failed to pass our administrative records check (check of
SSN, etc.); or
Failed to provide documentation as requested by our
contractor to perform the criminal background investigation.
We will continue to follow most of these requirements. However, we
are not continuing with the disqualifying standard: ``Engages in
substantial misrepresentation in submitting his or her application or
supporting materials for the application.'' Instead, we will require an
applicant to attest under penalty of perjury that he or she ``[h]as not
misrepresented information provided on his or her application or
supporting materials for the application.''
We are making this change to clarify that we will not accept even
minor misrepresentations by applicants. We also are not stating that a
contractor will conduct the criminal background investigation because
we may not use a contractor in the future. We are clarifying that a
representative must continue to meet the criteria in the criminal
background check at all times to remain eligible to receive direct fee
payment. All other current requirements will remain in effect.
We are adding these requirements in final sections 404.1717(a)(4)
and 416.1517(a)(4), 404.1714(d) and 416.1517(d).

Continuing Education

For a non-attorney representative to receive direct fee payment,
both the SSPA and the PRA require that a ``representative 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, and the
instructors providing such education, [must] meet [the] standards [that
we] prescribe.'' \23\
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\23\ Section 303(b)(5) of the SSPA and section 3 of the PRA.
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After the SSPA, we published a notice in the Federal Register that
explained how we would administer this requirement.\24\ We stated that
we would generally defer to organizations providing courses as to the
subject matter, the requirements for receiving credit for an hour of
instruction, and the qualifications of instructors. However, we
reserved the right to reject specific courses or instructors if we
determined that a course or instructor was unacceptable. We created a
framework in which we required certain hours of continuing education
requirements during certain time periods, depending on how long a
representative participated in the demonstration project and whether
the representative was a course instructor. We required eligible non-
attorney representatives to report their continuing education
information to us, and we specified which information to report.
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\24\ 70 FR 41250-41251.
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We have found the framework that balanced hours and length of
participation to be unnecessarily complex for representatives to follow
and for us to administer. We also believe that some of the continuing
education courses lacked sufficient substance. To help ensure that non-
attorney representatives receive pertinent and adequate continuing
education, we are revising our rules to require that each non-attorney
representative who is eligible to receive direct fee payment
``[c]ompletes and provides proof that he or she has completed all
continuing education courses that we prescribe by the deadlines we
prescribe'' in final sections 404.1717(a)(7) and 416.1517(a)(7). We
will no longer follow our prior formula to calculate continuing
education hour requirements. Instead, we will prescribe which courses
representatives must take, and we will select courses that we deem
necessary to enhance the representative's professional knowledge in
matters such as those related to entitlement to benefits, ethics, the
Listing of Impairments,\25\ and other disability topics under titles II
and XVI of the Act. We will also prescribe when representatives must
complete the courses and how representatives will certify that they
have completed the courses. We will notify the public and eligible non-
attorney representatives about specific course requirements. We will
notify the public of any relevant changes through alternate methods,
such as through our Web site: http://www.socialsecurity.gov/representation.
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\25\ 20 CFR part 404 subpart P appendix 1, which also applies to
title XVI of the Act under 20 CFR 416.925.
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If a representative does not take the prescribed continuing
education courses or provide us with the necessary proof

[[Page 45189]]

that he or she has completed the prescribed courses, the representative
will be ineligible for direct fee payment for at least 6 full calendar
months. We provide more details about this in the Ineligibility and
Protest Procedures section, below.

Representational Experience

The SSPA gave us discretion to establish additional requirements
for non-attorneys to receive direct fee payment.\26\ We published two
notices in the Federal Register in which we explained an additional
requirement that non-attorney representatives have certain minimum
representational experience.\27\ We stated that each applicant must
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 also described the types of
work that would qualify, and we provided examples of how we would
calculate the 24- and 60-month periods.
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\26\ Section 303(b) of the SSPA.
\27\ 70 FR at 2449 and 70 FR at 41252.
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Although the PRA also gives us discretion to establish additional
requirements,\28\ we have decided not to continue with the
representational experience requirement. We found that this requirement
unnecessarily complicated the application process without adding
significant benefit. In our experience administering the demonstration
project, we found that passing the written examination is a better
barometer to assess representatives' knowledge and skills.
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\28\ Section 3(a) of the PRA.
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Ineligibility and Protest Procedures

Both the SSPA and the PRA require that non-attorney representatives
meet the requirements listed above before we determine that they are
eligible to receive direct fee payment.\29\ 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.
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\29\ Section 303(b) of the SSPA and section 3(a) of the PRA.
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After the SSPA, we published a notice in the Federal Register that
explained how an applicant could protest our action finding that he or
she was ineligible to take the examination or receive direct fee
payment.\30\ We stated that we would notify non-attorney
representatives in these situations.
---------------------------------------------------------------------------

\30\ 70 FR at 41252.
---------------------------------------------------------------------------

If an applicant timely paid the application fee but submitted an
incomplete application, we would notify the applicant and give him or
her 6 weeks after the close of the application period to cure the
defects. If we determined that an applicant was not qualified to take
the examination for reasons other than failure to pay the application
fee, such as failing the criminal background investigation, we also
would notify the applicant. The applicant could protest our action
within 10 calendar days of the date of our notice and use the protest
period to correct the defects in his or her application. We also
allowed an applicant to file a protest with us if he or she failed the
examination.
As stated above, we required eligible non-attorney representatives
to continue to meet the requirements to continue to receive direct fee
payment.
If we notified an eligible representative that we proposed to
suspend direct fee payment because he or she failed to meet our
continuing education requirement, we gave the representative 10
calendar days to protest our action and show that he or she met this
requirement. If there was no protest, the suspension began on the first
day of the month following the month in which the protest period ended.
If there was a protest and we still found that the representative was
ineligible, we began suspending direct fee payment on the first day of
the month following the month in which we notified the representative
about our action in response to the protest. We would end the
suspension the month after the month we determined that he or she
completed all of the unmet requirements.
Similarly, if we notified an eligible representative that we
proposed to suspend direct fee payment because he or she failed to meet
our insurance coverage requirements, we gave the representative 15
calendar days to protest our action and show that he or she met this
requirement. If there was no protest, the suspension began on the first
day of the month following the month in which the protest period ended.
If there was a protest and we decided that the representative was
ineligible, we began suspending direct fee payment on the first day of
the month following the month in which we notified the representative
about our action in response to the protest. We would end the
suspension on the first day of the month following the month in which
we notified the representative that he or she again met our
requirements.
We stated that every protest must include supporting facts and
complete documentation. Our action in response to a protest was final
and not subject to further review. We also said that we would not
withhold or make direct fee payment to a non-attorney representative in
any case in which we effectuated a determination or decision while the
suspension is in effect.
In these interim final rules, we are also adding rules about how we
handle protests when we determine that a non-attorney representative is
not eligible to receive direct fee payment. Our experience
administering the demonstration project showed that we could improve
upon our protest procedures to make them easier to understand, follow,
and administer.
Because it is easier to administer a uniform process, we will now
require that a representative submit his or her protest in writing, and
we will limit all protests to 10 calendar days from the date he or she
receives notice of our action finding him or her ineligible. Our action
in response to a protest will remain final and will not be subject to
further review.
We will no longer allow applicants to protest failing examination
scores. We use several checks to verify the accuracy of scores. Our
experience shows that we confirmed all previously protested test scores
as being accurate; therefore, we denied all test score protests that
applicants filed. As stated earlier, we will allow a representative who
fails the examination to reapply during a subsequent application
period, but a representative must complete a new application and pay
the application fee each time he or she reapplies.
If an applicant does not attest that he or she meets our education
or equivalent qualifications requirement and we find that the applicant
is ineligible to take the examination because this requirement is not
met, we will continue to allow the applicant to protest this finding.
If an applicant files a protest and we confirm our earlier finding, we
will not allow the applicant to sit for the examination. We will allow
the applicant to reapply in a subsequent application period. As stated
earlier, an applicant must complete a new application and pay the
application fee each time he or she reapplies. As also stated earlier,
we will now verify the education or equivalent qualifications
requirement after applicants take and pass the examination.
If an applicant takes and passes the examination, but we find that
the applicant provided false or misleading information about his or her
education or equivalent qualification, we will find that the applicant
is ineligible to receive direct fee payment. We will provide the
representative with the opportunity to protest our finding. If the
representative does not protest, we will make the

[[Page 45190]]

representative permanently ineligible to receive direct fee payment. If
the representative protests and we confirm our earlier finding, we will
make the representative permanently ineligible to receive direct fee
payment. We may also refer the information to our Office of the General
Counsel so it can decide if we should bring sanctions against the
representative.
If we find that an applicant does not meet our criminal background
check (including a check of our administrative records) and is
ineligible to take the examination, we will allow the applicant to
protest this finding. If an applicant files a protest and we confirm
our earlier finding, we will not allow the applicant to take the
examination.
An applicant who passes our written examination will only become
eligible to receive direct fee payment when he or she provides proof of
sufficient liability insurance in an amount we prescribe and provides
proof of education or equivalent qualifications. We will not allow an
applicant to protest our finding that he or she has not yet provided
this documentation. In this situation, an applicant will become
eligible to receive direct fee payment once he or she provides this
proof, assuming that he or she continues to meet all other eligibility
requirements.
We will continue to monitor whether eligible non-attorney
representatives meet our requirements and remain eligible to receive
direct fee payment. We may find a representative is ineligible to
receive direct fee payment if he or she: (1) Provided false or
misleading information about his or her bachelor's degree or equivalent
qualifications; (2) would fail our criminal background check if
conducted today; (3) has not provided sufficient proof of maintaining
continuous liability insurance; or (4) has not completed or provided
documentation of the required continuing education courses. As stated
above, we will send a notice to the representative that states what
action we will take and the applicable protest procedures.
If we find that an eligible non-attorney representative provided
false or misleading information about his or her bachelor's degree or
equivalent qualifications, or would fail our criminal background check
if conducted today, we will provide the representative with the
opportunity to protest our finding. If the representative does not
protest, we will make the representative permanently ineligible to
receive direct fee payment beginning with the month after the month the
protest period ends. If the representative protests and we confirm our
earlier finding, we will make the representative permanently ineligible
to receive direct fee payment the month after the month we uphold our
finding. We may also refer the information to our Office of the General
Counsel so it can decide if we should bring sanctions against the
representative.
If we find that an eligible non-attorney representative has not
completed or provided documentation of the required continuing
education courses, we will also provide the representative with the
opportunity to protest our finding. If the representative does not
protest, the representative will be ineligible for direct fee payment
for 6 full calendar months beginning with the month after the month the
protest period ends. If the representative protests and the action we
take in response to the protest confirms our earlier finding, we will
make the representative ineligible for direct fee payment for 6 full
calendar months beginning with the month after the month we uphold our
finding. After the 6-month suspension period is over, we will resume
direct fee payment to the representative in the first month after the
month we find that he or she demonstrates that he or she meets our
continuing education requirements. A representative may submit this
required documentation at any time during or after the end of the 6-
month suspension.
We will also provide an eligible representative with the
opportunity to protest our action if we find that a non-attorney
representative has not provided sufficient proof that he or she had
maintained the continuous liability insurance coverage. If the
representative does not protest, the representative will be ineligible
for direct fee payment for 6 full calendar months beginning with the
month after the month the protest period ends. If the representative
protests and the action we take in response to the protest confirms our
earlier finding, we will make the representative ineligible for direct
fee payment for 6 full calendar months beginning with the month after
the month we uphold our finding. The non-attorney representative may
provide us with documentation that he or she maintains the required
liability insurance coverage no earlier than in the sixth month of the
suspension. After the 6-month suspension period is over, we will resume
direct fee payment to the representative in the first month after the
month we find that the non-attorney representative again maintains the
required liability insurance coverage.
We are adding these requirements in final sections 404.903,
404.1717(d) and (e), 416.1403, and 416.1517(d) and (e).

Currently Ineligible Non-Attorney Representatives

Some non-attorney representatives who became eligible for direct
fee payment during the demonstration project are currently suspended
from eligibility because they did not maintain the required liability
insurance coverage or meet our continuing education requirements. Prior
to the effective date of these interim final rules, we may end their
suspensions under the current requirements if they provide the
necessary proof to us. After the effective date of these interim final
rules, we will notify those non-attorney representatives who did not
provide sufficient proof and inform them of our new requirements. We
will allow these representatives to protest their suspensions under the
protest procedures explained in these rules.
Because we are not changing the amount of insurance coverage we
currently require, a representative who protests our finding that he or
she failed to maintain the required liability insurance must provide
documentation showing proof of coverage in the amount listed above. A
representative who protests our finding that he or she did not meet our
continuing education requirements must provide documentation showing
that he or she met our requirements under the demonstration project
prior to the effective date of these rules. If the action we take in
response to the protest confirms our earlier finding, we will make the
representative ineligible for direct fee payment for 6 full calendar
months beginning with the month after the month we uphold our finding.

Other Changes

We are adding a definition for ``eligible non-attorney'' in final
sections 404.1703 and 416.1503 and defining this term to mean ``a non-
attorney representative who we determine is qualified to receive direct
payment of his or her fee under [20 CFR 404.1717(a) or 416.1517(a)].''
We are also adding a definition for ``date we notify him or her'' in
final sections 404.1703 and 416.1503 and defining this phrase to mean
``5 days after the date on the notice, unless the recipient shows us
that he or she did not receive it within the 5-day period.'' We also
clarify in final sections 404.1717 and 416.1517 that an individual who
is a licensed attorney or is suspended or disbarred from the practice
of law in any jurisdiction cannot be an eligible non-

[[Page 45191]]

attorney. Finally, we are making conforming changes to final sections
404.1720, 404.1730, 416.1520, and 416.1530 for clarity.

Regulatory Procedures

Pursuant to sections 205(a), 702(a)(5), and 1631(d)(1) of the Act,
42 U.S.C. 405(a), 902(a)(5), 1383(d)(1), we follow the Administrative
Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in
the development of our regulations. The APA provides exceptions to its
prior notice and public comment procedures when a Federal agency finds
there is good cause for dispensing with such procedures on the basis
that they are impracticable, unnecessary, or contrary to the public
interest.
With regard to these rules, we find that good cause exists under 5
U.S.C. 553(b)(B) to issue these regulatory changes as interim final
rules without prior public comment. Congress enacted the PRA on
February 27, 2010, and the statute required us to ``provide for full
implementation * * * not later than March 1, 2010.'' \31\ Our
regulations about withholding for direct fee payment to attorneys and
eligible non-attorney representatives under title XVI of the Act and
direct fee payment to eligible non-attorney representatives under
titles II and XVI of the Act expired on February 28, 2010. In light of
the effective date of the changes contained in the PRA, we find it is
impracticable not to have implementing regulations while we initiate
notice and comment rulemaking proceedings. However, we are inviting
public comment on the changes made by these interim final rules and
will consider any responsive comments received within 60 days of
publication.
---------------------------------------------------------------------------

\31\ Section 3(c) of the PRA.
---------------------------------------------------------------------------

Executive Order 12866, as Supplemented by Executive Order 13563

We consulted with the Office of Management and Budget (OMB) and
determined that these interim 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 interim final rules will not have a
significant economic impact on a substantial number of small entities
because they affect individuals only. Therefore, the Regulatory
Flexibility Act, as amended, does not require us to prepare a
regulatory flexibility analysis.

Paperwork Reduction Act

These final rules contain public reporting requirements in the
regulation sections listed below. We are seeking approval for these
regulation sections under OMB Control Number 0960-0699, which we will
use to collect the information required by these sections. Below we
provide burden estimates for the public reporting requirements.

--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
Description of public Number of Frequency of burden per Estimated
Regulation section reporting requirement respondents response response annual burden
(annually) (minutes) *
--------------------------------------------------------------------------------------------------------------------------------------------------------
404.1717(a)(5); 416.1517(a)(5)............................. New Respondents Examination 200 1 120 400
404.1717(a)(3); 416.1517(a)(3)............................. New Respondents--Submission 200 1 10 33
of proof of Bachelor's
Degree or Equivalent
Qualifications.
404.1717(a)(7); 416.1517(a)(7)............................. New and Existing 710 1 20 237
Respondents--CE Submission
via e-mail/mail/or FAX of
training courses taken as
prescribed by SSA.
404.1717(a)(6); 416.1517(a)(6)............................. New and Existing 672 1 10 112
Respondents--Proof of
Continuous Professional or
Business Liability
Insurance Coverage (Scan
and E-mail).
404.1717(a)(6); 416.1517(a)(6)............................. New and Existing 38 1 15 10
Respondents--Proof of
Continuous Professional or
Business Liability
Insurance Coverage (Copy
and Mail).
404.1717(d); 416.1517(d)................................... New and Existing 45 1 45 34
Respondents--Written
Protests.
---------------------------------------------------------------
Totals................................................. ........................... 1,865 .............. .............. 826
--------------------------------------------------------------------------------------------------------------------------------------------------------

We submitted an Information Collection Request for clearance to OMB. We
are soliciting comments on the burden estimate; the need for the
information; its practical utility; ways to enhance its quality,
utility, and clarity; and ways to minimize the burden on respondents,
including the use of automated techniques or other forms of information
technology. If you would like to submit comments, please send them to
the following locations:

Office of Management and Budget, Attn: Desk Officer for SSA. Fax
Number: 202-395-6974. E-mail address: OIRA_Submission@omb.eop.gov.
Social Security Administration, Attn: Reports Clearance Officer, 1333
Annex, 6401 Security Blvd, Baltimore, MD 21235-0001. Fax Number: 410-
965-6400. E-mail: OPLM.RCO@ssa.gov.

You can submit comments until September 26, 2011, which is 60 days
after the publication of these rules. However, your comments will be
most useful if you send them to us by August 29, 2011, which is 30 days
after publication. To receive a copy of the OMB clearance package,
contact the SSA Reports Clearance Officer using any of the above
contact methods. We prefer to receive comments by e-mail or fax.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--

[[Page 45192]]

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, 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).

Dated: July 21, 2011.
Michael J. Astrue,
Commissioner of Social Security.

For the reasons set out in the preamble, we are amending 20 CFR
part 404 subparts J and R and part 416 subparts N and O as set forth
below:

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

Subpart J--[Amended]

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).

0
2. Amend Sec. 404.903 by adding new paragraph (bb) to read as follows:

Sec. 404.903 Administrative actions that are not initial
determinations.

* * * * *
(bb) Determining whether a non-attorney representative is eligible
to receive direct fee payment as described in Sec. 404.1717 of this
part.

Subpart R--[Amended]

0
3. The authority citation for subpart R of part 404 is revised 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. Revise Sec. 404.1703 by adding definitions for ``date we notify him
or her'' and ``eligible non-attorney'' in alphabetical order to read as
follows:

Sec. 404.1703 Definitions.

* * * * *
Date we notify him or her means 5 days after the date on the
notice, unless the recipient shows us that he or she did not receive it
within the 5-day period.
Eligible non-attorney means a non-attorney representative who we
determine is qualified to receive direct payment of his or her fee
under Sec. 404.1717(a).
* * * * *

0
5. Revise Sec. 404.1717 to read as follows:

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

(a) Criteria for eligibility. An individual who is a licensed
attorney or who is suspended or disbarred from the practice of law in
any jurisdiction may not be an eligible non-attorney. 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:
(1) Completes and submits to us an application as described in
paragraph (b) of this section;
(2) Pays the application fee as described in paragraph (c) of this
section;
(3) Demonstrates that he or she possesses:
(i) A bachelor's degree from an accredited institution of higher
learning; or
(ii) At least four years of relevant professional experience and
either a high school diploma or a General Educational Development
certificate;
(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;
(5) Takes and passes a written examination we administer;
(6) Provides proof of and maintains continuous liability insurance
coverage in an amount we prescribe; and
(7) Completes and provides proof that he or she has completed all
continuing education courses that we prescribe by the deadline we
prescribe.
(b) Application. An applicant must timely submit his or her
completed application form during an application period that we
prescribe. The application must be postmarked by the last day of the
application period. If an applicant timely submits the application fee
and a defective application, we will give the applicant 10 calendar
days after the date we notify him or her of the defect to correct the
application.
(c) Application fee. An applicant must timely submit his or her
application fee during the application period. We will set the fee
annually.
(1) We will refund the fee if:
(i) We do not administer an examination, and an applicant was
unable to take the rescheduled examination; or
(ii) Circumstances beyond the applicant's control that could not
have been reasonably anticipated and planned for prevent an applicant
from taking a scheduled examination.
(2) We will not refund the fee if:
(i) An applicant took and failed the examination; or
(ii) An applicant failed to arrive on time for the examination
because of circumstances within the applicant's control that could have
been anticipated and planned for.
(d) Protest procedures.
(1) We may find that a non-attorney representative is ineligible to
receive direct fee payment at any time because he or she fails to meet
any of the criteria in paragraph (a) of this section. A non-attorney
representative whom we find to be ineligible for direct fee payment may
protest our finding only if we based it on the representative's failure
to:
(i) Attest on the application or provide sufficient documentation
that he or she possesses the required education or equivalent
qualifications, as described in paragraph (a)(3) of this section;
(ii) Meet at all times the criminal background investigation
criteria, as described in paragraph (a)(4) of this section
(iii) Provide proof that he or she has maintained continuous
liability insurance coverage, as described in paragraph (a)(6) of this
section, after we previously determined the representative was eligible
to receive direct fee payment; or
(iv) Complete continuing education courses or provide documentation
of the required continuing education courses, as described in paragraph
(a)(7) of this section.
(2) A non-attorney representative who wants to protest our finding
under paragraph (d)(1) of this section must file a protest in writing
and provide all relevant supporting documentation to us within 10
calendar days after the date we notify him or her of our finding.

[[Page 45193]]

(3) A representative may not file a protest for reasons other than
those listed in paragraph (d)(1) of this section. If a representative
files a protest for reasons other than those listed in paragraph (d)(1)
of this section, we will not process the protest and will implement our
finding as if no protest had been filed. Our finding in response to the
protest is final and not subject to further review.
(e) Ineligibility and suspension.
(1) If an applicant does not protest, in accordance with paragraph
(d)(2) of this section, our finding about the criteria in paragraphs
(a)(3) or (a)(4) of this section, the applicant will be either
ineligible to take the written examination for which he or she applied
or ineligible to receive direct fee payment if the applicant already
took and passed the examination prior to our finding. If an applicant
protests in accordance with paragraph (d)(2) of this section and we
uphold our finding, the applicant will be either ineligible to take the
written examination for which he or she applied or ineligible to
receive direct fee payment if the applicant already took and passed the
examination prior to our finding.
(2) If an eligible non-attorney representative does not protest, in
accordance with paragraph (d)(2) of this section, our finding about the
criteria in paragraphs (a)(3) or (a)(4) of this section, the non-
attorney representative will be ineligible to receive direct fee
payment beginning with the month after the month the protest period
ends. If the eligible non-attorney representative protests in
accordance with paragraph (d)(2) of this section and we uphold our
finding, the non-attorney representative will be ineligible to receive
direct fee payment beginning with the month after the month we uphold
our finding.
(3) If an eligible non-attorney representative does not protest, in
accordance with paragraph (d)(2) of this section, our finding about the
criteria in paragraph (a)(6) of this section, the non-attorney
representative will be ineligible to receive direct fee payment for 6
full calendar months beginning with the month after the month the
protest period ends. If the eligible non-attorney representative
protests in accordance with paragraph (d)(2) of this section and we
uphold our finding, the non-attorney representative will be ineligible
to receive direct fee payment for 6 full calendar months beginning with
the month after the month we uphold our finding. In either case, the
non-attorney representative may provide us with documentation that he
or she has acquired and maintains the required liability insurance
coverage described in paragraph (a)(6) of this section, no earlier than
the sixth month of the ineligibility. The non-attorney representative
will again be eligible to receive direct fee payment beginning in the
first month after the month we find that we have received sufficient
documentation that the non-attorney representative meets the
requirements of paragraph (a)(6) of this section.
(4) If an eligible non-attorney representative does not protest, in
accordance with paragraph (d)(2) of this section, our finding about the
criteria in paragraph (a)(7) of this section, the non-attorney
representative will be ineligible to receive direct fee payment for 6
full calendar months beginning with the month after the month the
protest period ends. If the eligible non-attorney representative
protests in accordance with paragraph (d)(2) of this section and we
uphold our finding, the non-attorney will be ineligible to receive
direct fee payment for 6 full calendar months beginning with the month
after the month we uphold our finding. In either case, the non-attorney
representative may provide us with documentation that he or she has
satisfied the criteria in paragraph (a)(7) of this section at any time.
The non-attorney representative will again be eligible to receive
direct fee payment beginning in the first month after the month we find
that we have received sufficient documentation, but not earlier than
the month following the end of the 6 month ineligibility period.
(f) Reapplying. A representative may reapply to become eligible to
receive direct fee payment under paragraph (a) of this section during
any subsequent application period if he or she:
(1) Did not meet the initial criteria for eligibility in paragraphs
(a)(1), (a)(2), (a)(3), or (a)(5) of this section in a prior
application period; or
(2) Failed to timely correct a defective application in a prior
application period, as described in paragraph (b) of this section.

0
6. Amend Sec. 404.1720 by revising paragraph (b)(4) to read as
follows:

Sec. 404.1720 Fee for a representative's services.

* * * * *
(b) * * *
(4) If your representative is an attorney or an eligible non-
attorney, and you are entitled to past-due benefits, we will pay the
authorized fee, or a part of the authorized fee, directly to the
attorney or eligible non-attorney out of the past-due benefits, subject
to the limitations described in Sec. 404.1730(b)(1). If the
representative is a non-attorney who is ineligible to receive direct
fee payment, we assume no responsibility for the payment of any fee
that we have authorized.
* * * * *

0
7. Amend Sec. 404.1730 by revising the first sentence of paragraph
(a), heading and introductory text of paragraph (b)(1), heading and the
first sentence of paragraph (b)(2), heading of paragraph (c), and
paragraph (c)(1) to read as follows:

Sec. 404.1730 Payment of fees.

(a) Fees allowed by a Federal court. We will pay an attorney
representative out of your past-due benefits the amount of the fee
allowed by a Federal court in a proceeding under title II of the Act. *
* *
(b) Fees we may authorize--
(1) Attorneys and eligible non-attorneys. Except as provided in
paragraph (c) of this section, if we make a determination or decision
in your favor and you were represented by an attorney or an eligible
non-attorney, and as a result of the determination or decision you have
past-due benefits, we will pay the representative out of the past-due
benefits, the smaller of the amounts in paragraph (b)(1)(i) or (ii) of
this section, less the amount of the assessment described in paragraph
(d) of this section.
* * * * *
(2) Non-attorneys ineligible for direct payment. If the
representative is a non-attorney who is ineligible to receive direct
payment of his or her fee, we assume no responsibility for the payment
of any fee that we authorized. * * *
* * * * *
(c) Time limit for filing request for approval of fee to obtain
direct payment. (1) To receive direct fee payment from your past-due
benefits, a representative who is an attorney or an eligible non-
attorney should file a request for approval of a fee, or written notice
of the intent to file a request, at one of our offices, or
electronically at the times and in the manner that we prescribe if we
give notice that such a method is available, within 60 days of the date
we mail the notice of the favorable determination or decision.
* * * * *

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

Subpart N--[Amended]

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

[[Page 45194]]

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
9. Amend Sec. 416.1403 by adding new paragraph (a)(26) to read as
follows:

Sec. 416.1403 Administrative actions that are not initial
determinations.

(a) * * *
(26) Determining whether a non-attorney representative is eligible
to receive direct fee payment as described in Sec. 416.1517 of this
part.
* * * * *

0
10. The authority citation for subpart O of part 416 is revised 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
11. Revise Sec. 416.1503 by adding definitions for ``date we notify
him or her'' and ``eligible non-attorney'' in alphabetical order to
read as follows:

Sec. 416.1503 Definitions.

0
12. Revise Sec. 416.1517 to read as follows:

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

[[Page 45195]]

(d)(2) of this section and we uphold our finding, the non-attorney
representative will be ineligible to receive direct fee payment
beginning with the month after the month we uphold our finding.
(3) If an eligible non-attorney representative does not protest, in
accordance with paragraph (d)(2) of this section, our finding about the
criteria in paragraph (a)(6) of this section, the non-attorney
representative will be ineligible to receive direct fee payment for 6
full calendar months beginning with the month after the month the
protest period ends. If the eligible non-attorney representative
protests in accordance with paragraph (d)(2) of this section and we
uphold our finding, the non-attorney representative will be ineligible
to receive direct fee payment for 6 full calendar months beginning with
the month after the month we uphold our finding. In either case, the
non-attorney representative may provide us with documentation that he
or she has acquired and maintains the required liability insurance
coverage described in paragraph (a)(6) of this section, no earlier than
the sixth month of the ineligibility. The non-attorney representative
will again be eligible to receive direct fee payment beginning in the
first month after the month we find that we have received sufficient
documentation that the non-attorney representative meets the
requirements of paragraph (a)(6) of this section.
(4) If an eligible non-attorney representative does not protest, in
accordance with paragraph (d)(2) of this section, our finding about the
criteria in paragraph (a)(7) of this section, the non-attorney
representative will be ineligible to receive direct fee payment for 6
full calendar months beginning with the month after the month the
protest period ends. If the eligible non-attorney representative
protests in accordance with paragraph (d)(2) of this section and we
uphold our finding, the non-attorney will be ineligible to receive
direct fee payment for 6 full calendar months beginning with the month
after the month we uphold our finding. In either case, the non-attorney
representative may provide us with documentation that he or she has
satisfied the criteria in paragraph (a)(7) of this section at any time.
The non-attorney representative will again be eligible to receive
direct fee payment beginning in the first month after the month we find
that we have received sufficient documentation, but not earlier than
the month following the end of the 6 month ineligibility period.
(f) Reapplying. A representative may reapply to become eligible to
receive direct fee payment under paragraph (a) of this section during
any subsequent application period if he or she:
(1) Did not meet the initial criteria for eligibility in paragraphs
(a)(1), (2), (3), and (5) of this section in a prior application
period; or
(2) Failed to timely correct a defective application in a prior
application period as described in paragraph (b) of this section.

0
13. Amend Sec. 416.1520 by revising paragraph (b)(4) to read as
follows:

Sec. 416.1520 Fee for a representative's services.

* * * * *
(b) * * *
(4) If your representative is an attorney or an eligible non-
attorney, and you are entitled to past-due benefits, we will pay the
authorized fee, or a part of the authorized fee, directly to the
attorney or eligible non-attorney out of the past-due benefits, subject
to the limitations described in Sec. 416.1530(b)(1). If the
representative is a non-attorney who is ineligible to receive direct
fee payment, we assume no responsibility for the payment of any fee
that we have authorized.
* * * * *

0
14. Amend Sec. 416.1530 by revising the first sentence of paragraph
(a), heading and introductory text of paragraph (b)(1), heading and the
first sentence of paragraph (b)(2), heading of paragraph (c), and
paragraph (c)(1) to read as follows:

Sec. 416.1530 Payment of fees.

(a) Fees allowed by a Federal court. We will pay an attorney
representative out of your past-due benefits the amount of the fee
allowed by a Federal court in a proceeding under title XVI of the Act.
* * *
(b) Fees we may authorize--
(1) Attorneys and eligible non-attorneys. Except as provided in
paragraph (c) of this section, if we make a determination or decision
in your favor and you were represented by an attorney or an eligible
non-attorney, and as a result of the determination or decision you have
past-due benefits, we will pay the representative out of the past-due
benefits, the smallest of the amounts in paragraphs (b)(1)(i) through
(iii) of this section, less the amount of the assessment described in
paragraph (d) of this section.
* * * * *
(2) Non-attorneys ineligible for direct payment. If the
representative is a non-attorney who is ineligible to receive direct
payment of his or her fee, we assume no responsibility for the payment
of any fee that we authorized. * * *
* * * * *
(c) Time limit for filing request for approval of fee to obtain
direct payment. (1) To receive direct fee payment from your past-due
benefits, a representative who is an attorney or an eligible non-
attorney should file a request for approval of a fee, or written notice
of the intent to file a request, at one of our offices, or
electronically at the times and in the manner that we prescribe if we
give notice that such a method is available, within 60 days of the date
we mail the notice of the favorable determination or decision.
* * * * *
[FR Doc. 2011-19026 Filed 7-27-11; 8:45 am]
BILLING CODE 4191-02-P