Social Security has posted its final numbers
on fees paid to attorneys and others for representing Social Security
claimants in calendar year 2017. The total was $1.21 billion, up 11% from 2016. Despite the increase, attorney fees are still down from their peak of $1.43 billion in 2010.
Thing may have been a little less bad last year but all attorneys who practice Social Security law face considerable
economic pressure. 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 well over $7,000. It's past time to raise the
cap.
Every time I write about attorney fees, I get responses that go something like these:
- "Attorneys who represent claimants are lazy. They do nothing for the money they're paid." Those who post this need to ask themselves the question, "If representing Social Security claimants is such easy money, why don't Social Security employees leave their jobs with the agency and jump on this gravy train?" Social Security employs thousands of attorneys but hardly a one of them has left Social Security to represent Social Security claimants in recent years. What does that tell you?
- "When I was in private practice, I spent hundreds of hours doing depositions and meeting with my client and other witnesses in each individual case. Social Security attorneys don't do anything like that so they're worthless." Those who post this forget that they or their firms were being paid tens if not hundreds of thousands of dollars per case. You try spending hundreds of hours on each Social Security case when the total possible fee is no more than $6,000 and see how long you last! The challenge in representing Social Security claimants is doing a professional job when the economics require you to represent lots of clients. Give it a try and find out for yourself how easy that is.
- "If you can't make any money, why don't you just quit representing Social Security claimants?" I think this sort of thing is posted by one or more people who work at right wing think tanks or GOP Congressional offices who would prefer that claimants go unrepresented. If you think that Social Security disability benefits (and probably Social Security in general) shouldn't exist, you might be fine with anything that makes it harder for people to obtain benefits. Who cares about being fair to claimants when none of them should be getting benefits anyway? I think this is very much a minority viewpoint. I also think if someone who currently espouses this viewpoint actually becomes disabled, they would quickly change their tune and become indignant if they can't find an attorney to represent them.
18 comments:
Couple of thoughts.
First, the SSA should allow withholding for expenses. Medical records cost money. Not having our medical record costs withheld from the accrued is a serious hardship which could easily be eliminated. Each ODAR could designate a medical records service to provide records. Any records submitted by the claimant or rep using this service would have the cost withheld. The ALJ could be given the right to disallow any inappropriate charges. Further, ODAR could use the volume this would generate to negotiate a good rate with the records company.
Second, if there is going to be a maximum fee, then there should be a minimum fee. Many times we obtain benefits for a claimant with an amended onset date which drastically reduces the accrued. There should be a minimum fee (say the equivalent of 2 months of benefits) on any fully favorable award.
Medical record expenses are becoming a growing cost and burden on this practice. They are basically a free additional service I provide because I am not going to play collector to my clients. It's too time consuming, usually futile and hurts future referrals. I am not a TV or heavy advertising lawyer. I keep my practice alive organically. As far as us having to be quiet about this I would respond that no other profession or occupation allows itself to be slowly strangled to death without a fight. Wall Street bitched about having bonuses limited when they were being bailed out by the US government. Lack of representation will only mean more injustice and desperation for our people.
@12:22 AND 3:36:
Have you tried using the HIPAA/HITECH law to reduce fees for medical records? Google it if you are not familiar with it. The price gouging allowed by many states for medical records is just outrageous.
@12:22 - The fee system should be changed to reward representatives who are able to help the claimant get benefits as quickly as possible. The current system penalizes early dilligence with a zero to small fee. Claimants should be allowed to authorize payment of a fee out of FUTURE benefits up to a certain amount. This would also allow claimants to get representation on no fee/low fee cases such as cessations.
I am not a right winger but the last issue is one i often wonder about. I often hear the statement that current trends make it hard for a claimants attorney to keep a 100% SSA practice. My question is why couldnt you supplement your practice doing other things? How does one have a "right" to do solely one area of law? To me this is purely an economic decision for the attorney, not a policy statement.
To the extent that this affects claimants, that is an entirely different question. I would never advocate that claimants go without representation, and i realize that economic trends affect the quality and availability of representation in this niche area. (Though the self-flattery is unironically lost on many who esppuse this view.) But what grounds do you all have to stand on to insist that you be able to keep your 100% ssa practices, or any particular percentage for that matter?
@8:50
I am an attorney and I don’t think I have a "right" to do solely one area of practice. I have not heard any attorney claim such a "right". The practice of law is a business just like any other business and subject to all the technological and economic trends of the last 25 years.
I don't complain about this practice area because I have done others. I also left law practice for a while and got a "respectable" job. This is not a bad practice area if you are content with making a good living. If your goal is to get rich, start one of those national/multi-state high volume
disability mills.
The fact is that there are representatives who do close to nothing. It is not a service to the Social Security bar for other representatives to bury their heads in the sand and pretend that it does not happen.
Not in a think tank, I just think. I think that if you make a choice to practice in a low payout field, then you need to stop whining and complaining. You have the right to fail, lets face it, not all lawyers graduate at the top of their class, somebody has to do this. I believe that as long as the average remains around $200/hr there will be no shortage of reps.
BTW, I left SSA as a CR, went to work for a nationwide representative firm as Director of Operations, made good money but got tired of getting people on benefits that I knew could work. The straw that broke the camels back was a veteran, Chaplin, who we represented for PTSD from listening to solders stories. With his officer retirement and disability he made more than when he was on active duty.
Now I work in social services, I do about 50 applications a year, about half get approved at the Initial. Only one or two at Recon, and the rest go to Hearing. If I cant get an OTR I hand it off to a non-atty rep who represents the Claimant for free or a reduced rate at the Hearing. We do not charge for this service.
I haven't seen a single Social Security ALJ voluntarily leave the agency to become a rep. Good luck making $165 a year right off the bat hanging your own shingle.
Up the quality of representation and reward it while outsourcing the government payroll costs to the reps/recipients so the program self-funds:
1. Ban non-attorney representation and require attorneys to become board-certified with the Agency creating the certification requirements.
2. Require legal lawyer representatives to acquire medical evidence but federalize/copycat across the board the sprinkling of state laws requiring free medical records for disability claimants; if necessary you could make it a condition of being able as the provider to participate in the medicare system.
3. Further the existing success of having attorney reps file the applications and appeals online, and outsource the folder assembly and other exhibit preparation. Heavily shift SSA labor costs to lawyers.
4. Just like Supreme Court briefs, require the representatives as appellate lawyers to neutrally abstract the record, including a chronological abstract of MER, with harsh penalties if not neutral and inclusive of all evidence. A similar judicial quality Work History would be beneficial so the lawyers are responsible for the detail work of going through the NDNH and IRS records and matching to actual employers and job functions with equivalent proposed DOT Job Titles numerically and any deviations from SCO or revised handbook. All before hearing.
5. Remove the $6K cap and make it a straight 25% of backpay. If the law firms are going to do more ODAR/State Agency/Field Office outsourced work, which is more payroll, make them earn it.
6. Require a certain percentage/quantity of non-fee cases (cessation, overpayment, etc.) annual caseload as a condition of the above referenced board certification.
7. Remove the cap on the user fee at the same time you remove the $6K cap on the attorney fees. Put those funds into general funds and adequately fund the support staff working the appeals. My clients would have no problem with a unlimited user fee if it would process their claims quicker. Attorneys would not gripe about it if there is no cap on 25%. The costs of all these enhancements and quality improvements and big-boy changes to the system would come from the high PIA protracted cases with the biggest backpay -- which are the claimants that can afford it the most (high earners) and need it the most (complex, lengthy, federal remand type cases).
And while at it how about banning LTD subrogation and allow SSA to either take a credit for LTD payments or to only let them sell supplemental policies.
@11:51,
Yeah, let's get already swamped law offices to start doing the agency's job for them. If your intention is to drive Disability firms out of business, your list is a pretty good blueprint.
@ 11:51. You've put way too much thought into ideas that will never happen. If you are a rep, you should spend more time working on your clients files rather than daydreaming these ideas. On second thought, you aren't a rep because thinking like that is so anti-rep that it would do just as @ 1:32 says in putting reps out of business. Rather I think you work for the agency, which of course means you have a different motive for your ideas.
@1:32
One of thes reason so many law offices are swamped is because they devote their resources in strange ways. In my experience, the three biggest expenses for most representative groups are employee payroll, advertising, and rent. Without giving away too many ideas, my own opinion is that two of those three are pretty wasteful.
Under the current paradigm, yes, adding additional responsibilities to representative groups is not practical. But this marketplace is a malleable one. From a business standpoint, we will all have to change with the times.
My own suggestions are actually quite similar to 11:51’s in that they involve outsourcing responsibilities to the representative in order to save resources at the administration. Prehearing briefs should be due at the same time or just after the five-day evidence deadline. These briefs would involve fact pleading and issue pleading and would essentially amount to a draft fully favorable. An additional issue exhaustion requirement would prevent unnecessary appeals (speak now or forever hold your peace- don’t change your argument at the appeals council or federal court). Instead of spending all their time scouring the record and writing forgone conclusions dictated by judges, decision writers would instead be tasked with responding to these prehearing briefs with counter-arguments. After the hearing, The judge would simply adopt the claimant’s brief as a decision (saving time spent writing FF’s) or explain the reasons for rejecting them (which takes much less time than writing an entire UF).
These added responsibilities and (oh no! actual work!) would scare a lot of the hucksters out of this business and the more diligent practitioners who remain would ultimately benefit from reduced costs in advertising.
This is 11:51. I am a rep.. I average 34 hearings a month and cover them all myself. I write at least one federal brief a week. Myself. I am intimately aware of my fee per case average and my payroll costs. My point was that if I can move my fee per case average from $4,100 to $7K or $8K (25% and no cap) that it would be worth the increased labor costs to have my paralegals doing the extra work. If we did more of the work (while getting paid more for it) the case duration (costs from intake to fee in bank) would be reduced so there would be less time on desk which reduces overhead. The point was to help the agency while helping me help my clients.
I realize some of the ideas were outside the box and regret if anyone was offended. My belief is that we could elevate the claimant's bar, turn it into even more of a specialty, but a higher paid specialty, and be proud of our work and help our clients.
Some of us take a lot of pride in our work. We should get paid for it. I am good and I win cases. Which means if I can help the agency expedite the claims faster then I win faster and I make more $$$. Its business and its a profession and for me it is a calling to do good. Otherwise we are going to become drone mass marketers and it will become a paralegal, non-lawyer, low fee, high volume, non-law practice.
@1:48 "if myfee per case average from $4,100 to $7K or $8K (25% and no cap" I so hard I may qualify for benefits. And dude, if the fee went to $7,000,00 all I would have to do is win one!!
Greed is good, greed on my man greed on!
People that aren't reps need to understand that cases reaching the max fee are the exception rather than the rule. We want the max raised so that in those rare cases where we do have a large past due benefit, we can collect and offset the many other cases where we get nothing or close to nothing.
5:45 PM. As a claimant, I am for reps getting more money... Just not at the expense of the claimants. SSA's strategy has been to deny, delay, etc. to the most vulnerable in our society. Someone needs to be held accountable for this war on the disabled. ALJs who are overturned consistently need to be fired, just like those who approved everyone. It is not their job to "protect the trust fund." It is Congress' job to come up with the funding. It is SSA's job to determine if the claimant can "sustain SGA." Let's be honest here: what percentage of claimants that are denied "based upon our rules" would HR of SSA be willing to hire AND accommodate? I am guessing that number is really small.
@5:39, I understand, but why would you not want reps to have their fee max increased to keep pace with inflation? As you point out, SSA has been denying and delaying at record levels. Why do you feel that reps, who are the people truly on your side, should have their fees eroded by inflation? Would you be happier knowing that fees will be low, but that you can't find a rep., because all have left to pursue other law areas? Isn't that about as useful as trying to buy goods in a country that regulates prices, when the store shelves are empty? Go take a look at Venezuela news and see what happens when the government unreasonably caps prices that can be charged for goods and services.
I want SSA to pay ALL the fees, with no cap. I want ALL claimants to be represented. Why? Because they probably are naive enough to think that their doctor will help them. They also may be naive enough to believe the ALJ will be fair to them. Also, I want it to be in SSA's best interest to approve those who ultimately will be approved as soon as possible. The only way to do that is to make it costlier for SSA to drag its feet. Currently, the longer SSA can delay, the more they can cheat the claimants. That's what people would call it if a private company was set up this way, with 2 1/2 years delay for a hearing with a "company" judge and a "company" "expert." The "oversight" is then done by the "company" AC, which has been charged to "agree" more with the "company" "decisions," which seem so much more about justifying their "decision" rather than finding the truth. Meanwhile, the "company" has been forcing out those who are "too friendly" to the claimants while still allowing the most unjust to continue to serve. Their media "friends" have helped the "company" by spreading lies of fraud while also running stories of "redneck losers" trying to get disability because they have nowhere else to turn. In the name of "quality" the company has raised the standard de facto to beyond a reasonable instead of the preponderance of the evidence. The WAR ON THE DISABLED must end! Making SSA pay ALL the fees would be a good place to start!
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