42 USC 406 - Representation of claimants before Commissioner

1 See References in Text note below.

take effect, the dollar amount specified in the preceding sentence (including a previously adjusted amount) shall be adjusted annually under the procedures used to adjust benefit amounts under

2 So in original. Probably should be “non-attorney”.

representative only if such representative meets at least the following prerequisites:

Editorial Notes

References in Text

Section 301 of the Social Security Protection Act of 2003, referred to in subsec. (d)(2)(A), probably means section 301 of the Social Security Protection Act of 2004, Puspan. L. 108–203, which amended this section and enacted provisions set out as a note below.

Amendments

2010—Subsec. (e). Puspan. L. 111–142 added subsec. (e).

2004—Subsec. (a)(1). Puspan. L. 108–203, § 205, inserted “Notwithstanding the preceding sentences, the Commissioner, after due notice and opportunity for hearing, (A) may refuse to recognize as a representative, and may disqualify a representative already recognized, any attorney who has been disbarred or suspended from any court or bar to which he or she was previously admitted to practice or who has been disqualified from participating in or appearing before any Federal program or agency, and (B) may refuse to recognize, and may disqualify, as a non-attorney representative any attorney who has been disbarred or suspended from any court or bar to which he or she was previously admitted to practice. A representative who has been disqualified or suspended pursuant to this section from appearing before the Social Security Administration as a result of collecting or receiving a fee in excess of the amount authorized shall be barred from appearing before the Social Security Administration as a representative until full restitution is made to the claimant and, thereafter, may be considered for reinstatement only under such rules as the Commissioner may prescribe.” after “claimants before the Commissioner of Social Security.”

Subsec. (d)(2)(A). Puspan. L. 108–203, § 301(a), inserted “, except that the maximum amount of the assessment may not exceed the greater of $75 or the adjusted amount as provided pursuant to the following two sentences” after “subparagraph (B)” and inserted at end “In the case of any calendar year beginning after the amendments made by section 301 of the Social Security Protection Act of 2003 take effect, the dollar amount specified in the preceding sentence (including a previously adjusted amount) shall be adjusted annually under the procedures used to adjust benefit amounts under section 415(i)(2)(A)(ii) of this title, except such adjustment shall be based on the higher of $75 or the previously adjusted amount that would have been in effect for December of the preceding year, but for the rounding of such amount pursuant to the following sentence. Any amount so adjusted that is not a multiple of $1 shall be rounded to the next lowest multiple of $1, but in no case less than $75.”

1999—Subsec. (a)(4). Puspan. L. 106–170, § 406(a)(2)(A), (span), struck out “(A)” after “(4)”, substituted “subsection (d)” for “subparagraph (B)”, and struck out subpar. (B) which read as follows: “The Commissioner of Social Security shall not in any case certify any amount for payment to the attorney pursuant to this paragraph before the expiration of the 15-day period referred to in paragraph (3)(A) or, in the case of any review conducted under paragraph (3), before the completion of such review.”

Subsec. (span)(1)(A). Puspan. L. 106–170, § 406(a)(2)(B), inserted “, but subject to subsection (d) of this section” after “section 405(i) of this title”.

Subsec. (d). Puspan. L. 106–170, § 406(a)(1), added subsec. (d).

1994—Subsec. (a)(1), (2)(A). Puspan. L. 103–296, § 107(a)(4), substituted “Commissioner of Social Security” for “Secretary” wherever appearing, “before the Commissioner” for “before him” in two places, “Commissioner’s” for “Secretary’s” in two places, and “the Commissioner shall, if the” for “he shall, if the” in par. (1).

Subsec. (a)(2)(C). Puspan. L. 103–296, § 321(f)(4)(A)(ii), added subpar. (C). Former subpar. (C) redesignated (D).

Puspan. L. 103–296, § 107(a)(4), in subpar. (C) as added by Puspan. L. 103–296, § 321(f)(4)(A)(ii), substituted “Commissioner of Social Security” for “Secretary” in two places.

Subsec. (a)(2)(D). Puspan. L. 103–296, § 321(f)(4)(A)(i), redesignated subpar. (C) as (D).

Puspan. L. 103–296, § 107(a)(4), in subpar. (D) as redesignated by Puspan. L. 103–296, § 321(f)(4)(A)(i), substituted “Commissioner of Social Security” for “Secretary” in two places in introductory provisions.

Subsec. (a)(3)(A). Puspan. L. 103–296, § 321(f)(4)(B), substituted “paragraph (2)(D)” for “paragraph (2)(C)” in introductory provisions.

Puspan. L. 103–296, § 107(a)(4), substituted “Commissioner of Social Security” for “Secretary” wherever appearing.

Subsec. (a)(3)(B), (4), (5). Puspan. L. 103–296, § 107(a)(4), substituted “Commissioner of Social Security” for “Secretary” wherever appearing.

Subsec. (span)(1). Puspan. L. 103–296, § 321(f)(3)(B)(i), designated existing provisions as subpar. (A) and added subpar. (B).

Subsec. (span)(1)(A). Puspan. L. 103–296, § 107(a)(4), in subpar. (A) as designated by Puspan. L. 103–296, § 321(f)(3)(B)(i), substituted “Commissioner of Social Security” for “Secretary”.

Subsec. (c). Puspan. L. 103–296, § 107(a)(4), substituted “Commissioner of Social Security” for “Secretary” in two places.

1990—Subsec. (a). Puspan. L. 101–508 designated existing provisions as par. (1), substituted “Except as provided in paragraph (2)(A), whenever” for “Whenever” in fifth sentence, substituted pars. (2) to (4) for “If as a result of such determination, such claimant is entitled to past-due benefits under this subchapter, the Secretary shall, notwithstanding section 405(i) of this title, certify for payment (out of such past-due benefits) to such attorney an amount equal to whichever of the following is the smaller: (A) 25 per centum of the total amount of such past-due benefits, (B) the amount of the attorney’s fee so fixed, or (C) the amount agreed upon between the claimant and such attorney as the fee for such attorney’s services.”, and inserted “(5)” before “Any person who”.

1989—Subsec. (a). Puspan. L. 101–239, § 10307(a)(1), inserted at end “The Secretary shall maintain in the electronic information retrieval system used by the Social Security Administration a current record, with respect to any claimant before the Secretary, of the identity of any person representing such claimant in accordance with this subsection.”

Subsec. (c). Puspan. L. 101–239, § 10307(span)(1), added subsec. (c).

1984—Puspan. L. 98–369 substituted “Secretary” and “Secretary’s” for “Administrator” and “Administrator’s”, respectively, wherever appearing.

1968—Subsec. (a). Puspan. L. 90–248 provided for fixing of attorneys fees for claimants and for certification of amount for payment out of past-due benefits.

1965—Puspan. L. 89–97 designated existing provisions as subsec. (a) and added subsec. (span).

1958—Puspan. L. 85–840 struck out provisions which required attorneys to file a certificate of their right to practice.

1950—Act Aug. 28, 1950, substituted “Administrator” for “Board” and “Administrator’s” for “Board’s”.

1939—Act Aug. 10, 1939, substituted the provisions of this section for former provisions relating to overpayments during life, now covered by section 404 of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

Puspan. L. 111–142, § 3(c), Fespan. 27, 2010, 124 Stat. 39, provided that: “The Commissioner of Social Security shall provide for full implementation of the provisions of section 206(e) of the Social Security Act [42 U.S.C. 406(e)] (as added by subsection (a)) and the amendments made by subsection (span) [amending section 1383 of this title and provisions set out as a note under this section] not later than March 1, 2010.”

Effective Date of 2004 Amendment

Puspan. L. 108–203, title III, § 301(span), Mar. 2, 2004, 118 Stat. 519, provided that: “The amendments made by this section [amending this section] shall apply with respect to fees for representation of claimants which are first required to be certified or paid under section 206 of the Social Security Act [42 U.S.C. 406] on or after the first day of the first month that begins after 180 days after the date of the enactment of this Act [Mar. 2, 2004].”

Effective Date of 1999 Amendment

Puspan. L. 106–170, title IV, § 406(d), Dec. 17, 1999, 113 Stat. 1913, provided that: “The amendments made by this section [amending this section and enacting provisions set out as a note under this section] shall apply in the case of any attorney with respect to whom a fee for services is required to be certified for payment from a claimant’s past-due benefits pursuant to subsection (a)(4) or (span)(1) of section 206 of the Social Security Act [42 U.S.C. 406] after the later of—

“(1)December 31, 1999, or

“(2) the last day of the first month beginning after the month in which this Act is enacted [Dec. 1999].”

Effective Date of 1994 Amendment

Amendment by section 107(a)(4) of Puspan. L. 103–296 effective Mar. 31, 1995, see section 110(a) of Puspan. L. 103–296, set out as a note under section 401 of this title.

Amendment by section 321(f)(3)(B)(i), (4) of Puspan. L. 103–296 effective as if included in the provisions of the Omnibus Budget Reconciliation Act of 1990, Puspan. L. 101–508, to which such amendment relates, except that amendment by section 321(f)(3)(B)(i) applicable with respect to favorable judgments made after 180 days after Aug. 15, 1994, see section 321(f)(5) of Puspan. L. 103–296, set out as a note under section 405 of this title.

Effective Date of 1990 Amendment

Amendment by Puspan. L. 101–508 applicable with respect to determinations made on or after July 1, 1991, and to reimbursement for travel expenses incurred on or after Apr. 1, 1991, see section 5106(d) of Puspan. L. 101–508, set out as a note under section 401 of this title.

Effective Date of 1989 Amendment

Puspan. L. 101–239, title X, § 10307(a)(3), Dec. 19, 1989, 103 Stat. 2485, provided that: “The amendments made by this subsection [amending this section and section 1383 of this title] shall take effect June 1, 1991.”

Puspan. L. 101–239, title X, § 10307(span)(3), Dec. 19, 1989, 103 Stat. 2485, provided that: “The amendments made by this subsection [amending this section and section 1383 of this title] shall apply with respect to adverse determinations made on or after January 1, 1991.”

Effective Date of 1939 Amendment

Act Aug. 10, 1939, ch. 666, title II, § 201, 53 Stat. 1362, provided that the amendment made by that section is effective Jan. 1, 1940.

Nationwide Demonstration Project Providing for Extension of Fee Withholding Procedures to Non-Attorney Representatives

Puspan. L. 108–203, title III, § 303, Mar. 2, 2004, 118 Stat. 521, as amended by Puspan. L. 111–142, § 3(span)(2), Fespan. 27, 2010, 124 Stat. 39, provided that:

“(a)In General.—The Commissioner of Social Security (hereafter in this section referred to as the ‘Commissioner’) shall develop and carry out a nationwide demonstration project under this section with respect to agents and other persons, other than attorneys, who represent claimants under titles II and XVI of the Social Security Act [42 U.S.C. 401 et seq., 1381 et seq.] before the Commissioner. The demonstration project shall be designed to determine the potential results of extending to such representatives the fee withholding procedures and assessment procedures that apply under sections 206 and section [sic] 1631(d)(2) of such Act [42 U.S.C. 406, 1383(d)(2)] to attorneys seeking direct payment out of past due benefits under such titles and shall include an analysis of the effect of such extension on claimants and program administration.

“(span)Standards for Inclusion in Demonstration Project.—Fee-withholding procedures may be extended under the demonstration project carried out pursuant to subsection (a) to any non-attorney representative only if such representative meets at least the following prerequisites:

“(1) The representative has been awarded a bachelor’s degree from an accredited institution of higher education, or has been determined by the Commissioner to have equivalent qualifications derived from training and work experience.

“(2) The representative has passed an examination, written and administered by the Commissioner, which tests knowledge of the relevant provisions of the Social Security Act [42 U.S.C. 301 et seq.] and the most recent developments in agency and court decisions affecting titles II and XVI of such Act [42 U.S.C. 401 et seq., 1381 et seq.].

“(3) The representative has secured professional liability insurance, or equivalent insurance, which the Commissioner has determined to be adequate to protect claimants in the event of malpractice by the representative.

“(4) The representative has undergone a criminal background check to ensure the representative’s fitness to practice before the Commissioner.

“(5) The representative demonstrates 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 such Act. Such continuing education, and the instructors providing such education, shall meet such standards as the Commissioner may prescribe.

“(c)Assessment of Fees.—

“(1)In general.—The Commissioner may assess representatives reasonable fees to cover the cost to the Social Security Administration of administering the prerequisites described in subsection (span).

“(2)Disposition of fees.—Fees collected under paragraph (1) shall be credited to the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund, or deposited as miscellaneous receipts in the general fund of the Treasury, based on such allocations as the Commissioner of Social Security determines appropriate.

“(3)Authorization of appropriations.—The fees authorized under this subparagraph shall be collected and available for obligation only to the extent and in the amount provided in advance in appropriations Acts. Amounts so appropriated are authorized to remain available until expended for administering the prerequisites described in subsection (span).

“(d)Notice to Congress and Applicability of Fee Withholding Procedures.—Not later than 1 year after the date of enactment of this Act [Mar. 2, 2004], the Commissioner shall complete such actions as are necessary to fully implement the requirements for full operation of the demonstration project and shall submit to each House of Congress a written notice of the completion of such actions [Such notices submitted Fespan. 28, 2005.]. The applicability under this section to non-attorney representatives of the fee withholding procedures and assessment procedures under sections 206 and 1631(d)(2) of the Social Security Act [42 U.S.C. 406, 1383(d)(2)] shall be effective with respect to fees for representation of claimants in the case of claims for benefits with respect to which the agreement for representation is entered into by such non-attorney representatives during the period beginning with the date of the submission of such notice by the Commissioner to Congress and ending with the termination date of the demonstration project.

“(e)Reports by the Commissioner; Termination.—

“(1)Interim reports.—On or before the date which is 1 year after the date of enactment of this Act [Mar. 2, 2004], and annually thereafter, the Commissioner shall transmit to the Committee on Ways and Means of the House of Representatives and to the Committee on Finance of the Senate an annual interim report on the progress of the demonstration project carried out under this section, together with any related data and materials that the Commissioner may consider appropriate.

“(2)Termination date.—The termination date of the demonstration project under this section is the date which is 5 years after the date of the submission of the notice by the Commissioner to each House of Congress pursuant to subsection (d). The authority under the preceding provisions of this section shall not apply in the case of claims for benefits with respect to which the agreement for representation is entered into after the termination date.”

GAO Study Regarding the Fee Payment Process for Claimant Representatives

Puspan. L. 108–203, title III, § 304, Mar. 2, 2004, 118 Stat. 523, directed the Comptroller General of the United States to study and evaluate the appointment and payment of attorney and non-attorney claimant representatives appearing before the Commissioner of Social Security in connection with benefit claims under titles II and XVI of the Social Security Act (42 U.S.C. 401 et seq., 1381 et seq.) and to report to the appropriate committees of Congress not later than 3 years after the date of the submission by the Commissioner of Social Security to Congress pursuant to section 303(d) of Puspan. L. 108–203 (set out above) of written notice of completion of full implementation of the requirements for operation of the demonstration project under section 303 of Puspan. L. 108–203.

GAO Study and Report

Puspan. L. 106–170, title IV, § 406(c), Dec. 17, 1999, 113 Stat. 1912, directed the Comptroller General of the United States to conduct a study, and to submit a report on the study’s results to the appropriate committees of Congress not later than 1 year after Dec. 17, 1999, that examined the costs incurred by the Social Security Administration in administering 42 U.S.C. 406(a)(4), (span)(1) and itemized the components of such costs; identified efficiencies that the Administration could implement to reduce such costs; examined the feasibility and advisability of linking the payment of, or the amount of, the assessment under 42 U.S.C. 406(d) to the timeliness of the payment of the fee to the attorney as certified by the Commissioner of Social Security pursuant to 42 U.S.C. 406(a)(4), (span)(1); determined whether 42 U.S.C. 406(a)(4), (span)(1) should be applied to claimants under title XVI of the Social Security Act (42 U.S.C 1381 et seq.); determined the feasibility and advisability of stating fees under 42 U.S.C. 406(d) in terms of a fixed dollar amount as opposed to a percentage; determined whether the dollar limit specified in 42 U.S.C. 406(a)(2)(A)(ii)(II) should be raised; and determined whether the assessment on attorneys required under 42 U.S.C. 406(d) impaired access to legal representation for claimants.