The last time the fee cap was raised almost eight years ago some attorneys and representatives asked their existing clients to sign a new fee agreement with the higher cap. A lot of people, including me, criticized those who did this, on the grounds that it was unethical. But there is something that could have been done to prevent this problem from ever arising. Here is an excerpt from Social Security's Program Operations Manual Series (POMS) that points the way:
SSA will accept language in a fee agreement that would apply if the Commissioner increases the limit after the date of the agreement. In the examples below, if the decision maker approves the fee agreement on or after the date the Commissioner increases the limit, and the agreement meets all conditions of the fee agreement process and no exceptions apply, SSA will authorize a fee of the lesser of 25 percent of past-due benefits or the increased cap limit:
EXAMPLE 3-1: If SSA favorably decides the claim, I will pay my representative a fee equal to the lesser of 25 percent of my past-due benefits or the dollar amount established pursuant to section 206(a)(2)(A) , which is currently $5,300, but may be increased from time to time by the Commissioner of Social Security.
EXAMPLE 3-2: If SSA favorably decides the claim, I will pay my representative a fee equal to the lesser of 25 percent of my past-due benefits or $5,300 (or such higher amount as the Commissioner of Social Security may prescribe pursuant to section 206(a)(2)(A) of the Social Security Act).
EXAMPLE 3-3 I will pay my representative a fee equal to 25 percent of any past-due benefits from my claim or, if less, the maximum dollar amount allowed pursuant to section 206(a)(2)(A) of the Social Security Act, based on the date SSA approves my fee agreement.
6 comments:
Up to $5300.00 is better than it was when I retired though it falls short of what an hourly fee would come to on a more complex case. Can Reps submit fee petitions for cases in which extensive medical testing and new exams are required? If not, then is this being considered as a legislative initiative by NOSSCAR?
You can petition the court for a higher fee if justified then the ALJ would determine the appropriate action.
Under the ststute, the claimant(s), the representative, and the decision maker all have the right to request administrative review of the amount of the fee under the fee agreement. This applies at the initial and reconsideration levels as well as the ODAR level. This has been in the ststute since the fee agreement process began. Note: The decision maker is the ALJ only for claims that rose to the hearing level. For claims allowed at the initial or reconsideration level, the CR in the DO or the CA in the PSC is the decision maker.
I'm pretty sure that most CR's/CA's have never heard of/ let alone adjudicated such an issue. It may be more likely in the PSC, but does anyone know if the SSA is really pushing this issue?
CRs/CAs do not make the decision on the administrative review request - for claims decided at the initial and reconsideration level (the only times they are the decision makers) the review is done by the SCPSs in the PSCs and DSs in ODO. The information about how to do a decision maker request is covered in training class and in POMS. If CRs do not do this, it is a management/training issue. I know that I have done a decision maker request for admin review when I felt it was justified. Unfortunately, the CR is usually the decision maker and I cannot make the request.
I have remanded hearings to ALJ's and the Hearings Review Counsel regarding issues such as program fraud and certain DIB determinations. But, it may be just a matter of the type of claim we had in my shop. Usually not a lot of extra medical development required. CA coast is mainly ag, and the cases involve peope who are too beat up to work.
Note: ALJ's really hate it when you call 'em up and rack on 'em about dumb disallowances, but I did it and got away with it. I'm really serious about DIB and the need for timely decisions.
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