The Social Security Administration has announced that representatives who request direct fee payment must file all appeals electronically. 77 Fed. Reg. 4653 (Jan. 31, 2012). Beginning March 16, 2012, “appointed representatives [will be required to] file certain appeals [requests for reconsideration and requests for hearing] using our electronic systems in matters for which the representatives request direct fee payment.”
The announcement applies only to the filing of requests for reconsideration and requests for hearing in Title II and SSI disability claims. Note that this requirement is an affirmative duty under the Rules of Conduct, 20 C.F.R. 404.1740(b)(4) and 416.1540(b)(4), that applies to representatives who request direct fee payment, but does not affect the actual fee withholding. This announcement also has nothing to do with direct deposit of fees, and the requirements do not apply in cases where the representative will not be requesting that the fee be withheld and paid directly.
On September 12, 2011, SSA published a final rule that first announced that certain services would have to be done electronically. 76 Fed. Reg. 56107 (Sept. 12, 2011). Because filing appeals is now an “affirmative duty,” the continued failure to do so could lead to an investigation by the Office of General Counsel as a possible violation of the Rules of Conduct. If investigated as a possible violation of the Rules of Conduct, eligible representatives requesting direct payment of fees who continuously fail to file online appeals could be sent a letter asking for an explanation as to why they are not following this rule. If pursued, it could lead to sanctions under the Rules of Conduct.
The requirement that the appeal be filed online will not apply if a system limitation prevents the electronic filing of an appeal. In this situation, the representative should file a paper appeal. SSA is only concerned about a representative who “purposefully violated this duty or is attempting to circumvent [these] rules.”
SSA has encouraged the use of electronic filings when possible. Last year, attorneys filed more than 500,000 online appeals, an increase of 40% from the prior year. The benefits of online appeals include the fact that representative will be sent a receipt upon filing, and the appeal will be immediately processed. Online appeals are faster to process, which will allow SSA employees to spend time on other work, thus reducing the overall appeal time.
The requirement to file an online appeal does not apply to claimants. It only applies to “appointed representatives.” So if a claimant files his or her appeal before hiring a representative, the representative’s requirement to file the appeal online does not apply. When you are retained, you would submit the Forms SSA 1696 and 1695, and other documents as you have before.
SSA is aware that some forms, including Forms SSA 1696, SSA 1695 and SSA 827 cannot be electronically filed. Paper copies of these forms should be submitted, and will be associated with the appeal that was filed electronically.
Additional information will be available in February and March 2012 on SSA’s Representing Claimants Web site at www.ssa.gov/representation, in a web cast, and in a FAQ. These rules are effective for appeals filed on or after March 16, 2012.