Representative Fee Agreements and Fee Petitions Best Practices

Transcription

1 Representative Fee Agreements and Fee Petitions Best Practices Deborah Demic, Staff Attorney, ODAR, Region VIII Sasha Kurbegov, Staff Attorney, ODAR, Region VIII AA

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3 Representative Fee Agreements and Fee Petitions Best Practices Section AA Representative Fees Deborah Demic, Staff Attorney, ODAR, Region VIII Sasha Kurbegov, Staff Attorney, ODAR, Region VIII 809

4 Section AA National Social Security Disability Law Conference Representative Fees Policy and Procedures at the Hearing Level 1 ODAR Region VIII Deborah Demic & Sasha Kurbegov Regional Staff Attorneys 2 Social Security Fee Approval Process A representative cannot charge a fee without approval from SSA. Two mutually exclusive processes: Fee agreement a contract in advance of decision Fee petition process representative must file the fee request after his or her services are completed 3 HALLEX Information about the fee agreement approval process can be found in: HALLEX I through HALLEX I

5 Representative Fee Agreements and Fee Petitions Best Practices Section AA 4 Fee Agreement Process The agreement must be submitted before the date of the decision by SSA. If all statutory criteria are met, the fee agreement must be approved under terms of the agreement. The Administrative Law Judge (ALJ) or Senior Attorney Adjudicator (SAA) does not decide the amount of the fee. 5 Requirements for Fee Agreement Approval HALLEX I (A) and 206(a)(2) of The Act: Agreement must provide for a fee which does not exceed the lesser of: 25 percent of past-due benefits or $6,000 (or another amount determined by the Commissioner) Decision must be favorable or partially favorable Agreement should be filed before the decision is issued Claim must result in past-due benefits Representative and claimant must both sign/date the agreement 6 Exceptions to the Fee Agreement Process HALLEX I (B) Claimant appointed representatives from same firm, and all did not sign the agreement (unless non-signing representatives waive fees prior to the date of the decision) Claimant appointed representatives from different firms (unless all other representatives waived fees) Claimant discharged representative or representative withdrew (unless former representative waived fee) 811

6 Section AA National Social Security Disability Law Conference 7 Exceptions to the Fee Agreement Process (Continued) HALLEX I (B) The appointed representative died before the decision was issued. A court has found the claimant to be incompetent and the guardian did not sign the agreement. 8 Example 1 q The claimant appoints Attorney Allen from Firm A and they sign and timely submit a fee agreement. q Attorney Ames, also from Firm A, represents the claimant at the hearing. At the hearing, the claimant and Ames sign a fee agreement and submit it to the ALJ. q One week later, the ALJ issues a favorable decision, but disapproves the fee agreement because both representatives from the same firm did not sign a single fee agreement. Appeal rights are given. q Within the 15-day appeal period, Ames submits a waiver of fee from Allen to the Regional Chief Administrative LawJudge (RCALJ). q The RCALJ affirms the disapproval since the fee waiver was not submitted prior to the date of the favorable decision. 9 Example 2 q The claimant appoints Mr. Allen from Firm A and weeks later, appoints Mr. Barnes from Firm B. Both representatives had filed separate fee agreements. q Prior to the date of the decision, Mr. Allen withdrew and waived charging and collecting a fee. q If all other statutory requirements are met, the fee agreement between the claimant and Mr. Barnes must be approved. 812

7 Representative Fee Agreements and Fee Petitions Best Practices Section AA 10 Example 3 q The claimant and Ms. Fairwell signed and submitted a fee agreement. Fairwell later retired and sent a withdrawal notice to the claimant and the Hearing Office. q The claimant then hired Ms. Smith as her new representative. They both signed a fee agreement and submitted it to ODAR. Smith helped the claimant to obtain an on-the-record favorable decision. q A review of the record shows that although Fairwell had withdrawn before the date of the favorable decision, she did not waive charging a fee, so the agreement between Smith and the claimant cannot be approved. 11 Provisions that Invalidate the Agreement HALLEX I (C)(3) The agreement sets a minimum fee. For example:...the fee will be the lesser of 25 percent of past-benefits or $6,000, provided that there will be a minimum fee of at least $1, Provisions that Invalidate the Agreement (continued) HALLEX I (C)(3) A clause that provides that the representative may file a fee petition For example: If the past-due benefits are significantly eroded by the workers compensation offset or other circumstances, or if the past-due benefits do not exceed $2,000, the representative reserves the right to file a fee petition. 813

8 Section AA National Social Security Disability Law Conference 13 Provisions that Do Not Invalidate the Agreement HALLEX I (C)(2) The representative reserves the right to seek review of the amount that otherwise would be the maximum amount payable under the Social Security Act. The representative may request administrative review of the amount of the fee if past-due benefits do not exceed a certain amount. 14 Provisions that Do Not Invalidate the Agreement (continued) The fee does not include out-of-pocket expenses. The representative will charge interest on the unpaid balance. The representative will split the authorized fee. 15 Two-Tiered Agreements HALLEX I An agreement may include a provision limiting the fee agreement's application to services through a specific level of the administrative appeals process. The ALJ must be able to readily ascertain, at the time of the decision, which tier of the fee structure applies. 814

9 Representative Fee Agreements and Fee Petitions Best Practices Section AA 16 Sample Two-Tiered Language If SSA favorably decides the claim(s) at or below the first Administrative Law Judge hearing, the fee shall be the lesser of 25 percent of past-due benefits or $6,000. If the claim progresses beyond the hearing level of the administrative review process, the representative will request a fee through the fee petition process. 17 Not a Two-Tiered Agreement I agree to pay my attorney a fee of 25 percent of past-due benefits or $6,000 (whichever is less) for services he performs before SSA. If my case goes to court, I will pay an additional fee for any services provided before the District Court. 18 Right to Seek Administrative Review Does Not Invalidate Agreement The decision maker will not disapprove a fee agreement solely because it contains a provision stating that: The representative has the right to seek review of the amount that otherwise would be the maximum fee under 206(a)(2)(A) of the Social Security Act. The representative may request administrative review (under 206(a)(3)(A) of the Social Security Act) of the amount of the fee if the past-due benefits do not exceed a certain amount. - Hallex I (C)(2) 815

10 Section AA National Social Security Disability Law Conference 19 Dividing the Fee Agreement Pie HALLEX I : If a fee agreement has been approved, and there are multiple appointed representatives: SSA divides the fee evenly among all appointed representatives. A fee is authorized only for each of the representatives who has not waived a fee. The ALJ or SAA does not have a role in this process. 20 Administrative Review Under a Fee Agreement 21 Who May Request Review? Claimant/Parties affected by the claim Representative ALJ or SAA who believes: representative did not adequately represent the claimant s interest or the fee is clearly excessive in light of services provided. the approval/disapproval is incorrect 816

11 Representative Fee Agreements and Fee Petitions Best Practices Section AA 22 Deciding if the Fee is Reasonable HALLEX I Expectations of the parties when they entered into the agreement, as expressed in written agreement filed with SSA. Purpose of the program to assure minimum income (SSI) or measure of economic security (title II beneficiaries) Type and extent of the services performed Results achieved by the representative Amount the representative requested for his or her services, including any prior amount authorized or requested, not including expenses 23 Deciding if the Fee is Reasonable HALLEX I (continued) The ALJ/SAA bases the determination on: Administrative review level when representative retained, and level to which the representative took the claim Complexity of the case Level of skill and competence required Time the representative spent on the case 24 FEE PETITIONS Information about the fee petition process is contained in: HALLEX I through HALLEX I

12 Section AA National Social Security Disability Law Conference 25 When a Petition Can Be Filed There is no fee agreement. Fee agreement was disapproved. The Regional Chief Judge vacated an approved fee agreement by an ALJ or SAA. Note: If there are no past due-benefits, the fee agreement approval will be vacated, and the representative must file a fee petition if he or she wishes to collect a fee. 26 Filing the Fee Petition Filed after services have ended Form SSA 1560-U4 is usually used Requirements: amount of fee requested itemized list of services No time limit, but for direct pay, must be submitted within 60 days of award notice. Petition is filed with the ALJ or SAA who issued the decision. 27 Who May File the Petition Only an appointed representative may submit a petition. Each appointed representative must file his or her own fee petition. SSA only recognizes individuals, not firms or other organizations. A petition includes only services performed by the representative or services delegated to staff members. 818

13 Representative Fee Agreements and Fee Petitions Best Practices Section AA 28 Who May File the Petition Continued: A representative may file a petition for a claim that is denied, unless he or she agreed not to charge a fee for an unfavorable decision (see Hallex I (A)(6)). The agency will honor that fee agreement provision A representative must give the claimant a copy of the petition prior to filing with the agency. 29 Acting on the Petition HALLEX I-1-2-6(B)(2): The ALJ or SAA who decided the case is the deciding official. If a recommended fee is in excess of $10,000, the ALJ or SAA refers the case to the Regional Chief Judge. The ALJ/SAA may issue a fee award for up to $10,000 regardless of the amount requested. 30 Reviewing the Petition HALLEX I : Purpose of the program to provide economic security or minimum level of income Specific services provided by the representative Complexity of the case Skill and competence required 819

14 Section AA National Social Security Disability Law Conference 31 Reviewing the Petition Continued: Time spent on the case Results achieved Level in the administrative process Amount of fee requested by the representative 32 Factors not Considered Time spent on activities related to charging or collecting the fee. Expenses related to representation. Time spent before the United States District Court or higher level court. 33 Common Problems Fee Agreements Two-Tiered: Not using plain language to specify the applicable level of adjudication; All representatives from the same firm or business not submitting or signing a single fee agreement; Waiving right to a fee after the decision has been issued; Fee Petitions Not providing an itemized list of services as set forth by 20 CFR (a)/ (a) Not identifying a specific dollar amount under a fee petition request; Delaying the submission of your fee petition. 820

15 Representative Fee Agreements and Fee Petitions Best Practices Section AA 34 Questions? 821

16 Section AA National Social Security Disability Law Conference 822