Proposed Text
CHAPTER 630
DISABILITY ADVOCACY PROJECT (REPEALED)
22VAC40-630-10. Definitions. (Repealed.)
The following words and terms, when used in this chapter,
shall have the following meanings unless the context clearly indicates
otherwise:
"Advocacy services" means legal services to help establish
eligibility for federal disability benefits.
"Agency" means the local department of social
services.
"Appeal process" means a review of the decision
on the disability claim which can involve four steps--reconsideration, hearing
before an administrative law judge, review by the Appeals Council, hearing in a
federal court.
"Bar association" means a professional
association for attorneys.
"Disability" means a physical or mental condition
rendering a person unable to perform any meaningful work and this condition is
expected to last at least 12 months or result in death.
"Disability Determination Services" means a
program administered by the Virginia Department of Rehabilitative Services
which makes decisions on disability claims for the Social Security
Administration.
"Disability insurance benefits" means Title II of
the Social Security Act which provides benefits to disabled persons who have
worked for a substantial period in employment covered by Social Security.
"Equal Access to Justice Act" means an act which
allows a federal court to grant an attorney a fee for proceedings before an
administrative agency.
"Federal disability benefits" means disability
insurance benefits or Supplemental Security Income or both.
"Foster child" means a child entrusted or
committed to foster care for whom the cost of maintenance is funded by state
and local foster care funds.
"General Relief Program" means an optional
program financed by state and local funds to provide maintenance or emergency
assistance to individuals who do not qualify for aid in a federal category. The
program is supervised by the state Department of Social Services and
administered by local agencies.
"Hearing before an administrative law judge"
means the first level formal fair hearing of decisions of the Social Security
Administration to deny federal disability benefits. The hearing is conducted by
an attorney who is an official of the Social Security Administration.
"Interim assistance" means a component of the
General Relief Program that can provide assistance to individuals who have
applied for Supplemental Security Income (SSI), who must apply for SSI, or are
appealing an SSI decision. Individuals receiving interim assistance must sign
an authorization allowing the Social Security Administration to send their
initial back-due Supplemental Security Income benefits to the local agency
which then reimburses its general relief budget for the amount of financial
assistance given the individuals while their Supplemental Security Income benefits
were pending approval.
"Legal aid attorney" means an attorney who
provides legal services at no cost to people within certain income guidelines.
"Private attorney" means an attorney engaged in
the private practice of law for which a fee is charged.
"Provider" means an attorney, or an individual
working under the supervision of an attorney legally allowed to do so, who
provides assistance in establishing an individual's eligibility for federal
disability benefits.
"Recipient" means an individual who is receiving
interim assistance.
"Reconsideration" means a review of the
disability claim by the Disability Determination Services.
"Recoupment" means the amount reimbursed to the
general relief or state and local foster care funds from an individual's back-due
Supplemental Security Income benefits for assistance to that individual while
approval for federal disability benefits was pending approval.
"Representative" means a person acting on behalf
of a foster child.
"Review by the Appeals Council" means a review of
the decisions of the administrative law judge by a review unit of the Social
Security Administration. The Appeals Council either decides the case or issues
an order returning it to an administrative law judge for further review.
"State and local foster care" means a method of
funding the costs of maintenance for foster children not eligible for federal
(Title IV-E) payments.
"Supplemental Security Income" means Title XVI of
the Social Security Act which provides benefits to a disabled person based on
financial need.
22VAC40-630-20. Referral. (Repealed.)
The agency electing to provide disability advocacy services
will identify recipients of the interim assistance component of general relief
or children receiving state and local foster care who have received written
notification from the Social Security Administration that their disability
claims at the application or reconsideration level have been denied. Within
five working days after the identification, the agency will send letters to the
interim assistance recipients explaining advocacy services, offering to refer
them to advocacy providers for legal representation during the appeal process,
providing information on how the appeal would affect their general relief
benefits, and advising them that they have five days from the receipt of this
letter to contact the agency requesting advocacy services.
If the interim assistance recipient or the foster child's
representative chooses to participate in the Disability Advocacy Project, he
will be allowed to select a provider from a list of qualified advocacy
providers with whom the agency has contracts or be allowed to select another
provider if that provider meets the qualifications and agrees to enter into a
contract with the agency.
The agency will have the interim assistance recipient sign
a Confidentiality Form (VDSS Form 032-01-040/2) giving the agency permission to
refer the recipient to the selected provider.
Within five working days after the selection, a referral
letter will be sent by the agency to the selected advocacy provider.
22VAC40-630-30. Duties of advocacy provider. (Repealed.)
Advocacy providers will perform the following services:
1. Within five working days of receipt of a referral letter from
the agency, send a letter to the interim assistance recipient or the child's
representative, acknowledging the referral and instructing the recipient or
child's representative to protect the filing date by filing a Request for
Reconsideration or Request for a Hearing with the Social Security
Administration within 60 days of the date of his denial notice.
2. Contact the interim assistance recipient or child's
representative by mail and telephone, if necessary, to schedule an appointment
for an interview. If the provider cannot contact the recipient or the recipient
does not keep the appointment, the provider will promptly notify the agency.
3. During the interview with the interim assistance
recipient or child's representative, provide legal advice and counsel regarding
federal disability benefits and the appeal process. The provider will assess
the potential eligibility of the recipient or child for federal disability benefits.
The decision whether to proceed or not proceed in the appeal process must be
made by the recipient or the child's representative after receiving legal
advice from the provider. The recipient or the child's representative must
request the services of the advocacy provider by signing the Social Security
Form SSA-1696-U4 under the Appointment of Representative section.
4. Within 15 working days of the initial interview with the
recipient or child's representative, send a notification letter to the recipient
or child's representative with a copy to the agency stating whether or not the
provider will accept this case for legal representation.
5. If the provider agrees to provide advocacy services, sign
Social Security Form SSA-1696-U4 under the Acceptance of Appointment and Waiver
of Fee sections. Copies of the form will be sent within five working days to
the Social Security Administration and to the agency.
6. Assist in the completion and timely filing of any
necessary Social Security forms requesting a reconsideration, hearing, or
review of the hearing decision.
7. Assist in obtaining and using medical, social, vocational
evidence, or expert testimony which may substantiate the presence and severity
of the disability.
8. Assist the recipient in making and keeping appointments
for examinations.
9. Prepare for and adequately represent the recipient or
child at interviews, hearings, or appeals related to application for
Supplemental Security Income.
10. Notify the recipient or the child's representative of
any denial and the right to appeal to the next level in the appeal process.
11. Notify the agency of any denial and the recipient's or
child's representative's decision to proceed or not proceed to the next level
in the appeal process.
12. Notify the recipient, the child's representative, and
the agency when advocacy services have ended.
22VAC40-630-40. Contracts. (Repealed.)
Agencies shall contract with licensed legal aid or private
attorneys, or advocates working under the supervision of an attorney who may
lawfully do so to provide legal representation in the appeal process. The
providers must have previously provided successful representation to disability
claimants during the reconsideration, administrative law judge hearing, Appeals
Council, or federal district court levels of the federal disability
adjudication process.
Qualified attorneys will be recruited by agencies giving
written notice to their local legal aid and bar associations that contracts for
legal representation of interim assistance recipients and foster children in
the federal disability benefits appeal process will be available.
22VAC40-630-50. Disbursement. (Repealed.)
To receive payment, the advocacy provider must submit a
petition and copy of the favorable Social Security Administration decision to the
agency within 60 days of such a decision. Disbursement for legal representation
will be made by the agency within 20 working days after the agency receives the
initial Supplemental Security Income payment due the recipient or child.
No disbursement will be made unless the following have
occurred:
1. The agency referred the recipient or child's
representative for legal representation;
2. The recipient or child's representative requested the
legal representation by signing the Appointment of Representative section of
Social Security Form SSA-1696-U4;
3. The advocacy provider signed the Acceptance of
Appointment and Waiver of Fee sections of Social Security Form SSA-1696-U4; and
4. The agency received the initial Supplemental Security
Income payment for the recipient or child.
No disbursement will be made for legal services given
before the date of the agency's referral letter. Providers shall not require
from the recipient or child's representative prepayment of any fees, costs, or
disbursement.
The disbursement made by the agency will represent payment
in full for all legal services to the recipient or child in this process with
no further obligation on the part of the state or local Department of Social
Services, the recipient, nor the child's representative.
Neither the recipient, the child's representative, the
state Department of Social Services, nor local agency shall be obligated to pay
any additional fees, costs, or disbursement related to the provision of legal
services in the appeal process including, but not limited to, payment for
medical, psychological, or vocational consultations obtained to substantiate
the disability claim. Under most circumstances, if pre-approved by Disability
Determination Services, the Social Security Administration will cover the cost
of these consultations.
Contracting attorneys will agree to waive their right to
legal fees paid by the Social Security Administration from the initial check
for retroactive disability insurance benefits due the recipient or child should
he be found eligible for both disability insurance benefits and Supplemental
Security Income. An award for attorney's fees under the Equal Access to Justice
Act will not be required to be waived.
The provider's fee will be paid entirely from the
recoupment from the initial Supplemental Security Income payment for state and
local financial assistance given the recipient or child while the Supplemental
Security Income application was pending approval. The fee per favorable
decision at the reconsideration level will be $300; at the hearing before an
administrative law judge, $600; and at the Appeals Council or federal district
court, $750. The fee may in no event exceed the recoupment for the state and
local assistance paid.
FORMS (22VAC40-630) (Repealed.)
Disability Advocacy Project Customer Letter.
Disability Advocacy Project Referral Form.
Disability Advocacy Project Reporting Form.