Social Security has posted its final numbers on fees paid to attorneys and others for representing Social Security claimants in 2015. The total was $1.094 billion. This was down $46 million or 4%, from 2014. Fees are down $335 million, or 23%, from their peak in 2010.
All attorneys who practice Social Security law face considerable economic pressure. Almost no one is entering this field of practice now. The attorney fee provisions of the Social Security Act were designed to allow claimants to have representation. This right could be effectively eliminated over coming years unless something changes. One important way that the Acting Commissioner of Social Security could assure that claimants don't lose their right to representation is to increase the cap on Social Security attorney fees. It's currently $6,000. The Social Security Act allows the Acting Commissioner to raise this to adjust for inflation but does not require that she do so. If adjusted for inflation, the cap would now be over $7,000. It's past time to raise the cap.
All attorneys who practice Social Security law face considerable economic pressure. Almost no one is entering this field of practice now. The attorney fee provisions of the Social Security Act were designed to allow claimants to have representation. This right could be effectively eliminated over coming years unless something changes. One important way that the Acting Commissioner of Social Security could assure that claimants don't lose their right to representation is to increase the cap on Social Security attorney fees. It's currently $6,000. The Social Security Act allows the Acting Commissioner to raise this to adjust for inflation but does not require that she do so. If adjusted for inflation, the cap would now be over $7,000. It's past time to raise the cap.
34 comments:
Best way would be to be like real lawyers and let you collect your fees from your claimants. Get SSA totally out of it. Let you charge whatever you want and make it a competitive playing field so reps that charged less would get more work.. Yes??
We've had debate in the comments section on this before, and I've already voiced opposition to both increasing the max fee cap and to forcing reps to collect from claimants, but just to the first commenter's point: reps CAN charge any fee they want, and nothing is stopping them from offering a lower fee (in fact I do).
Of course the cap should be raised - there is no reason why it shouldn't be tied to inflation. However, with the constant attacks against the SSD system in general (and attorney reps in particular), I'm just glad that we have appeared to dodge the political arrows coming our way for the time being and can now just focus on our clients and practice.
It is still possible to run a profitable practice while still properly serving your clients. With the drop in fees and pay rates, the "fly by night" SSD practices have disappeared. The more established firms, who have adopted efficiencies and have been smart with their marketing, are still standing.
As 12:32 stated, its refreshing to see the fly by nights and big box groups getting crippled.
An attorney is free to charge a lower fee than the max allowed. If you want to deal with claimants that shop around and look for cheap as opposed to competent representation, good for you. That's why many reputable attorneys in other lines of work have stopped offering free consultations. I guess that will be the next business model for social security mills. Max your fee at 3,000 and put in no work and only take slam dunks. It's almost as bad as advertising a 97% approval rate, putting in no work, and only taking slam dunks.
You have a really difficult time proving the "we are in it for the Claimants" line. You are in it for the money. Pure and simple. It is easy legal work and a decent payout. If it wasn't people wouldn't do it. A few non-profits might tackle the occasional claim, lets face it, until the hearing not much really happens. If it is a good claim and you get a nice function report from the doctor it gets approved.
I am glad I walked away from the business before it fell apart. Sorry for all the people who have lost jobs for the big companies, but when you saw B&B sell out to an investment group you should have seen the writing on the wall.
I find it funny that the most conservative people I deal with are government employees feeding at the same trough as the people they truly despise.
We can live with the $6000 max fee. The problem we have is getting the fee paid. We are owed a large amount of fee payments and are staying in business on a credit line.
I understand that SSA is understaffed and claimant's come first, but the delay in processing fee payments is getting ridiculous. This came up at the last NOSSCR conference and, to my knowledge, nothing has come of it.
You would think NOSSCR would be pulling out all the stops to help its members get paid. The same goes for NADR. If someone knows of any efforts that have been made, please let us know by posting a comment.
The biggest problem in paying fees timely is the appointing of multiple reps. As you know, SSA recognizes individual reps, not firms. If there is more than one rep, payment of the fee is a manual process. Part of this is the claimants fault in appointing another rep without dismissing the prior rep(s) thinking this would hurry their cases along.
I practice in a semi-rural area almost 100 miles from the ODAR in which 95% of my cases are heard. Wages in our now mostly out-sourced industries have always been lower than in the more urbanized areas. Because workers make less, they pay less FICA. When adjudicated disabled, my clients typically receive $800-900/month, much less than the national average and often little more than the SSI stipend. Apparently, despite having the earnings records, the ALJs either don't understand this, or don't give a d**n. Perhaps the ALJs, living in urbanized areas, think wages in our area are the same as where they live and work. 75-80% of my awarded cases have the onset dates "amended," no matter what the medical evidence. This is forced by the ALJs, who apparently believe that they must cut AT LEAST a year of benefits from all claimants--no matter what the medical evidence shows as to onset, diagnosis, and treatment. This high degree of amended onset dates did not occur at the previous ODAR to which our area was assigned. The clients are so destitute after 2 1/2 to 3 years (50% of my clients' homes have been foreclosed), that they take ANY dribble of benefits--even if all past-due benefits are lost. Oh yes, at least 2 ALJs at this ODAR frequently push "amended" onset dates of 6 months before the hearing or even as of the date of the hearing.
Because of the low wages and low benefits, I seldom see a case in which there are $24,000 of past-due benefits. In some cases, I don't get paid--the case belongs to the client, not to me--and the desperate client would rather receive a certain dribble of low monthly benefits than to wait another 1 1/2 years to have a 14% chance of winning a remand and then waiting another 6 months for the remanded hearing where the same ALJ will deny the case or force an even more recent amended onset date down the claimant's throat to avoid another appeal.
However, in fairness, the cap should be raised with the COLA.
The reason attorney fees have declined is because Social Security has denied so many cases. In WV, if an attorney doesn't win your case, then he doesn't get paid, which adds to the decline in attorney fees.
10:44, if the evidence supports the AOD, don't amend it. Almost never is there supporting evidence on the AOD, unless it has been a severe accident. Being laid off doesn't cut it. Look at the evidence and find the smoking gun.
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11:00 AM, in all States if the attorney doesn't win your case they don't get paid. That is the law!!
How is anyone against tying the max fee to COLA? You realize that you are making like 10-15% less than you were when the cap was last raised due to inflation. Really, all government caps/benefits/etc should be tied to COLA. Not doing so artificially deflates their cost, and then when the cap is raised it's a big hit. Keeping these things in line with the original % of the budget makes allocating resources more realistic and consistent.
Also, if you want SSA out of the direct payment then the trade off has to be allowing atty liens on benefits and/or writing the checks to the attorneys, a la insurance companies in PI/WC. Does running collections against SSI claimants sound like a profitable venture to anyone? Sheesh.
Lastly, offering lower fee rates is an interesting idea, but frankly, SSI/SSDI claimants are, on the whole, not the most savvy bunch. If they were, would they trust some atty wearing a cowboy hat from New York City whose online reviews made clear they were a mill run out of a warehouse?
11:10 am:
How can I be against tying the max fee to a cola? The cola does not take into account two relevant factors: Market conditions and average wait time. Although the lawyer oversupply has lessened slightly, I see no indication that is a shortage of lawyers willing to handle Social Security claims at the current max fee. If you add to that the non-attorney reps, there is no market case for raising the fee.
Additionally, the average wait time for a hearing has gone up. This raises the average fee for each case.
I don't see a case for raising the max fee at the current time and I see no case for tying it to a cola. The current law allows the Commissioner to consider a number of relevant factors and not just the cost of living.
11:10
These are surely ways we could change the process, but I can't help but notice they put the financial burden off the rep and on either the claimant or some mix of federal, state, and local gov'ts. I guess reps are ok with that, but from a public policy standpoint I think like everyone else wouldn't/shouldn't be.
In the spirit of the program and protecting those most vulnerable - those destitute AND disabled or aged - perhaps we consider adjusting the SSI payment amount, or income and resource limits for inflation first.
How about "punishing" wrongful denials at the DDS level by making SSA pay the reps instead of taking it from the claimants? If the ALJs insist on making wronful denials, then punitive awards should be made at the higher levels, with no cap to reps. The longer you make the claimant wait, the more SSA would have to pay the claimant and the reps! And also, bring in the concept of "res ipsa loquitur" (the thing speaks for itself) when it comes to someone's work history. When a claimant works for a company for 8-10 years at $50,000 a year without significant time missing work to 6-7 months on sick leave, returns for a few months only to go back on sick leave... I'm guessing the wait for a hearing will go down significantly!
@ 1:30 PM, 11:10 here, thank you for the considered, apparently sincere, and snark free response. So rare on the interwebs these days!
Those are fair points that I concede I had not fully considered. That said, after consideration, I fail to see that they are all that relevant.
When the cap went from 4K to 6K, there was not a shortage of lawyers. B&B was going full steam at the time, and I knew lots of attys doing SSDI work. NOSSCR probably had a similar number of members as well. If anything, there are less attys doing SSDI now (RIP B&B). Moreover, while the SSDI atty market may be a consideration when setting the cap amount, I fail to see why that argues against having the cap tied to COLA. COLA does tie to the greater economy (though admittedly, not the relatively small SSDI rep market) and therefore would generally be in line with the original relative value/amount of the cap. Basically tying the cap to COLA is not raising it, it's keeping it the same in terms of the relative value of money. I also think using the "market" generally as a rationale for determining the cap is kind of silly. I mean how often do you want to revisit the cap? The market swings several times each year, and certainly from year to year. We don't want to set the cap everytime there is significant economic upturn or downturn so we? No, so lets just tie it to COLA, which will do that for us.
As to wait times, these have been longer in the past, and now are getting to those levels again. Again, this is just too variable a factor to use as a criteria for setting the cap, much less an argument against tying it to COLA. And at some point, your fee caps out, so who cares about the wait times. This is also a perverse incentive to delay a determination on the claimant's app (turn in that OTR and make 2K or wait a another year and make 5K).
@ Tim
I'm sure you know this, but disability determinations are incredibly subjective. Two ALJs in the same office are unlikely to see a case the same way, so why would we assume that DDS and ALJs should agree? There's usually no clear objectively provable case of disability. If in those rare circumstances where DDS totally blows it and fails to see that someone obviously meets a Listing, then maybe. But these are relatively few and far between. Moreover, the threat of punishing SSA for initial determinations that get overturned would probably lead to a lot of favorables at the DDS level (or maybe a lot more denials at the ALJ level), but I don't think it would necessarily improve the quality or defensibility of those decisions.
3:53 PM Are you suggesting that DDS SHOULD only approve the claims that meet a listing? Why not those that meet the Preponderance of the Evidence? How OBVIOUS does it have to be?
Tim, that's just not DDS' role. You may not like it, but that's how the system (and many like it) work. Pretty much every claim gets an initial determination at DDS. Thus, DDS has to process every claim. They do, and properly so, a much more cursory review. Since their review is admittedly cursory, and since the gov't doesn't want to just give away the store, DDS errs on the side of denials. This is pretty basic stuff here when dealing with huge scale operations involving detailed decision making--initial reviews are broad and quick, with non-obvious cases going further down the road for more review.
That one would expect State-run (but Federally-funded) DDSs to have the same or similar level of decision making process as happens at ODAR (which you say is plenty deficient itself, I might add) with a fraction of the budget, no ALJs (or attorneys for that matter) and much less access to medical experts is beyond me. It would be unsettling if DDSs starting paying a large percentage of their cases because that occurrence could be attributable to only two things: either the people of America are becoming extremely ill and injured such that they are obviously disabled and/or DDS began allowing cases it couldn't possibly have had time enough to evaluate properly.
Tim, 3:53 here, it's not a matter of being obvious, it's a matter of being objectively verifiable.
If the Listing calls for lab finding a, clinical sign b, and a period of 6 months between the two (for example), then 10/10 people should be able to look at the facts and agree that the case either does have a, b, and 6 months or not. Those cases should always be approved initially no doubt. However, most cases are not that clear cut, and most cases are paid at step 5. This necessarily requires credibility determinations that are necessarily going to be more involved than an initial DDS review and necessarily subjective. What is obvious to one person is not at all clear to another.
11:10 and second post 3:53:
Thank you for your comments. I hope you won't consider this "snarky" but Social Security's job is to look out for the interest of the claimants, not the lawyers/representatives. The fees are paid by the claimants, not Social Security. This is not a benefit program for lawyers and reps!
Frankly, Social Security probably raised the cap from $4000 to $6000 earlier than they should have. We have plenty of qualified attorneys and reps in our area. Is there a shortage in your area? Give us the location and I promise you that a plethora of firms will be there pronto. I don't know of any local representative in our area that is planning to abandon the practice if the cap is not raised. Are you going to stop taking Social Security cases if the cap is not raised?
I think the cap should not be raised at the present time and it should definitely not be tied to a COLA which is used to protect beneficiaries and NOT vendors.
Amen @ 3:31
3:31, 11:10 here
I must not be making myself clear. I am not advocating for an increase in the cap. I have no opinion on whether the cap is too high or low. What I am saying is that I believe the cap should always have been tied to COLA.
I believe the cap first came into being in 1991, and was 4K. It could be that that if it were tie to COLA (or at least some relevant economic index), the cap would be less than 6K now, I don't know. As I said, I believe all regularly recurring benefits/caps/etc should be tied to COLA (or some relevant economic index). No one has said anything here to make me think that should not be the general rule. It keeps things consistent with the original intention/goal of setting the benefit amount.
I agree that the cap increase was probably unwarranted. I was simply making the point that whatever the reason for the increase was (and I truly have no idea what the rationale was), the relative availability of SSDI reps was not it, since, as we agree, there were a glut of reps in 09 (the same is probably true of the 2002 increase to $5300). But to me this just argues for tying the fee to COLA. Then we would have assurance that the cap is the same relatively as it always was, and you would never have to raise the cap in some seemingly arbitrary fashion.
I am not sure what led you to believe I am some money grubbing lawyer. Indeed, I am not a rep at all. My interest is ensuring that SSDI/SSI/SSRI serves it's purpose for all of us. We are all potential SSDI (or god help us SSI) claimant's and if we're lucky, we're all going to be SSRI claimants.
No-one should expect to get rich doing SSDI. And reps do have a relatively "easy" job as compared to many other areas of law. But reps are necessary. Without reps, hearings would take longer, wait times increase, and the backlog would spiral (more) out of control, and that would serve nobody. The point of the direct fee is to induce lawyers/reps to take SSDI cases, because without it, few would. As I said earlier, running collections/suing SSI/SSDI claimant is an unworkable business model. More importantly, it is antithetical to the purpose of the Act. Therefore, it is in everybody's interest to ensure that reps are able to make a living doing this work, and hence, I believe, important that the fee cap remain at a level that was originally determined to be sufficient for that purpose - i.e. the same value as $4,000 was in 1991.
I am really not sure why this is so controversial.
And no, I don't see your response as snark. The bolding was probably a little overboard though. :)
As a regular reader of this blog, I don't understand why Dan Smith consistently advocates against his own interesst as an SSD advocate: no increase of fee cap, no connecting fee cap to FICA, no automatic fee mechanism, lowering fee below 25%, etc... Are you sure you're not really a republican congressman in disguise?
I'm just a rep who's seen one too many instances of shenanigans from my counterparts.
To clarify what you've posted, I've never advocated eliminating the automatic fee mechanism and I lower my own fee only on cases that are approved at DDS (when reps don't even have access to records).
Not a congressman, certainly not a republican.
1:05 PM:
How could Dan Smith be a Republican if he is arguing in favor of the claimant's interest? The claimant pays fees and lowering fees is in the claimant's interest. I thought self-interest was a Republican virtue.
It is possible to put aside self-interest and argue an issue based on logic, legality, morality or ethics.
11:10
Have enjoyed arguing with you but we are just going to have to agree to disagree. However, I see where you are coming from. I think the whole fee process needs to be reformed but that's an argument for another day.
As to the bolding, I was just showing off my HTML skills. :) 3:31
Frankly, if more reps were like Dan, the fees and fee structure wouldn't be under such scrutiny, because it would be easy for outsiders to see the value in their services.
Unfortunately, raising the fees would just bring out more bottom-feeders like Binder & Binder, which means more high-volume, low-quality, unethical representation. A few bad apples spoil the bunch.
3:53 PM (1/15), 5:30 PM, 6:11 PM: So, your essentially telling me DDS' job is to take a half-assed "look" at the files, fill out a RFC rating that allows you to deny and then hopes the claimant goes away... Then goes through the charade again at reconsideration... So, when the claimant asks for a hearing and an OTR, the atorneys give the impression (going through the motions) that they actually make a decision... Claimant has to hire a rep for the hearing... SSA employees at all levels claim the "greedy" reps are just trying to "profit" from the unfortunate, poor claimants... Meanwhile, hopelessness after 2 years of waiting leads some to become suicidal... Republicans get upset about 35-40% approval rates to claimants that already "had 2 chances" to be approved... Am I missing anything?
Oh, yeah, the other 2 "bites" at the apple... The Appeals Council... which appears to be becoming another charade... and Federal Courts... "Good luck with that!!!"
Re 10:44 on 1/13/16's comments regarding the ALJs are amending the onset dates: DDS is doing that, too, It is quite distressful to witness that happening. Sometimes it seems very arbitrary and there's no question that it causes a hardship for the claimants, and of course the representatives, whose fees are based upon the past due benefits paid. I'm noticing a number of favorable decisions in my practice but the fees are low largely because of the amendment of the onset date. Sometimes and amendment of an onset date is appropriate, however I am noticing this as a general trend.
I am just curious- how long are most of you waiting for fees? I am a newer attorney in NJ but so far have received fees in a timely manner until now. I have been waiting 11 months for a fee.
Great thoughts you got there, believe I may possibly try just some of it throughout my daily life.
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