I-1-2-57.Evaluating Fee Petitions
Last Update: 2/25/05 (Transmittal I-1-48)
Although there are jurisdiction limits at the hearing level regarding who can authorize a fee over $12,000.00 (see HALLEX I-1-2-6 B.2.), there is not a maximum fee amount that can be requested or authorized under the fee petition process. A fee authorizer evaluating a petition must consider the following criteria for evaluating fee petitions and determining a representative's reasonable fee.
A. Criteria for Evaluating Fee Petitions
When evaluating the fee petition to determine a reasonable fee for representation, the fee authorizer must consider the factors listed below.
1. Purpose of the Program
The fee authorizer must consider the purpose of the program. For title II this purpose is to provide the measure of economic security for program beneficiaries. For title XVI, the purpose is to assure a minimum level of income for supplemental security income recipients who otherwise do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.
2. Services Provided
Depending on the circumstances in the case, the fee authorizer also will consider whether the representative:
Researched relevant law or rulings.
Searched old records to obtain the evidence.
Arranged a medical examination.
Submitted medical or lay evidence of disability or other factors of entitlement.
Contacted the Social Security Administration (SSA) as needed about the status of the claim.
Participated at the hearing.
Promoted timely decision making or acted in a way that delayed the issuance of the decision without justification.
Recognize that SSA does not set a standard value for each type of service because of the variety of activities in which a representative may engage and because the same activity may be more demanding in one situation than another. Even routine services are necessary and have value.
A representative submitted a copy of a hospital report that served as the primary basis for the Administrative Law Judge (ALJ) finding the claimant disabled.
A representative submitted a copy of medical evidence the representative had used successfully in a recent workers' compensation claim to support the claim for a period of disability and disability insurance benefits. The representative provided SSA with readily available evidence we may not have had. However, the submission of new medical evidence relating to the period before insured status expired would have been a far more valuable service.
3. Complexity of the Case
Evaluate the complexity of the case based on the work or documentation needed to resolve the issues. Do not underestimate complexity because of the representative's knowledge or experience as a representative.
Example: A representative contacted numerous sources for information used to establish the claimant's date of birth, a task of some complexity.
4. Level of Skill and Competence Required in Providing the Services
Consider the issues involved and the probing the representative did to resolve them. Do not base the assessment on what the fee authorizer would have done following existing instructions or on what the representative could have done theoretically, given the representative's expertise.
Example: One representative submitted a copy of the evidence the representative used in the claimant's workers' compensation claim. A representative in another case scheduled a medical examination and submitted the results for evaluation, along with other new evidence showing the claimant's condition. The representative's actions in the second case demonstrate greater skill and competence.
5. Amount of Time Spent on the Case
Credit the time allegedly spent on services (e.g., one hour to arrange a medical appointment), unless the time seems exaggerated or inordinate (e.g., 20 hours to research when the fee authorizer knows the representative regularly handles social security claims).
Refer to B. below for time to exclude.
6. Results the Representative Achieved
Consider the results achieved along with all the other factors.
Do not permit this factor to completely override the others. If SSA made a favorable determination on one claim and an unfavorable determination on another claim, the fee authorizer should not disregard the other factors and authorize the fee amount the representative requests in the first, but authorize no fee in the second, simply because of the outcome.
If the representative and claimant have entered into a contingency contract, providing that there will be no fee if the claim is not favorably decided, SSA will honor that provision. In such a case, SSA will not authorize any fee for services if the representative petitions.
Do not authorize the fee primarily on the basis of the amount of benefits awarded (or lack thereof); the benefit amount payable is unrelated to the extent or caliber of services the representative provided.
Example: An assessment of the client's description of symptoms prompted the representative to develop evidence of a medical condition the field office and Disability Determination Services had overlooked. This established the claimant's entitlement to disability insurance benefits. When evaluating, you credit the favorable results the representative achieved. You also credit the representative's demonstrated skill and competence in a case complicated by the claimant stressing the symptoms of a medical condition that alone was not disabling, and SSA not recognizing the significance of the claimant's other symptoms.
7. Level(s) in the Administrative Process
Consider the level(s) in the administrative process at which the representation began.
Example: If the claimant appointed the representative after receiving notice of the reconsideration determination and the ALJ favorably decided the claim, assume the representative interviewed the claimant about what had happened thus far, researched the law and eligibility factors, and determined whether new evidence was available.
8. Amount of Fee Requested
Consider the amount the representative requested and apply all of the factors listed above in conjunction with the excluded items identified in B. below. After considering these factors, if the fee the representative requested is reasonable for the services provided, authorize a fee in the amount requested. The fee authorizer may authorize a fee in a greater or lesser amount than that requested, providing it is reasonable.
B. Excluded Activities
In evaluating the amount of time a representative spent on the case, the fee authorizer must exclude any time claimed for:
Preparing the fee petition or any other activities related to charging or collecting a fee, such as status inquiries; and
Services the representative did not provide before SSA. (See HALLEX I-1-2-5 and I-1-2-71 B.)
The representative's expenses are not considered part of the fee for services. The representative must look to the claimant for reimbursement of any expenses.
D. Concurrent Titles II and XVI Cases
Pursuant to Social Security Ruling SSR 83-27 (C.E. 1983, p. 77), SSA determines a reasonable fee for the services provided in connection with both the titles II and XVI programs when all the circumstances below apply.
The concurrent titles II and XVI claims, or post-entitlement or post-eligibility actions, involved a common substantive issue (e.g., disability).
Although some services may have been unique to the title II or XVI claim or post-entitlement action, most of the representative's services focused on resolving the common issue. The representative did not perform two sets of services different in most respects.
The services the representative provided led to favorable determinations or decisions in both cases.
If the representative is eligible for direct fee payment, under SSR 83-27 SSA will certify the fee amount for direct payment from title II past-due benefits withheld unless a portion of the fee amount is attributable to services provided exclusively in connection with the title XVI program.
When evaluating the fee petition to determine a reasonable fee for representation in concurrent titles II and XVI cases that involved a common substantive issue, consider the circumstances above, as well as:
The purposes of the programs, in A.1. above; and
The factors listed in A.2. through A.8. above.
If all the criteria and factors are met and SSA is withholding for possible direct payment of a representative's fee, decide whether any services were so unique to the supplemental security income program that you must designate a portion of the fee amount as attributable to title XVI exclusively.
E. Documenting the Fee Rationale
Complete the Form SSA-1178 (Evaluation of Fee Petition for Representation) (refer to POMS GN 03905.080) to document the rationale for setting the fee. Use this form to show the amount of the fee you find reasonable, and to explain and document your rationale. The rationale must reflect how you set the fee using the factors in A.1. through A.8. above.
If the amount of the fee you believe is reasonable is $12,000 or less, file the SSA-1178 in the hearing office or Appeals Council file when the SSA-1560A-U5 is distributed. (See I-1-2-58 for procedures on processing the SSA-1560A-U5.)
If the amount of the fee you believe is reasonable exceeds $12,000, send the recommendation you prepared on the SSA-1178 to the authorizing official with the SSA-1560A-U5. Refer to I-1-2-6 B.2.