From a contracting notice posted by the Social Security Administration:
... Disability claimants who have an Appointed Representative (AR) have an increased likelihood of award at the hearings level, but not earlier in the disability adjudication process. Experts have suggested that the current attorney fee structure, under which representatives receive 25 percent of claimants’ back benefits up to $6,000, encourages representatives to work with claimants later in the disability adjudication process.
In April of 2019, SSA convened a Technical Expert Panel (TEP) to discuss a potential demonstration that would alter the incentives for representatives to work with applicants at the reconsideration level of adjudication. The TEP discussed alternatives to the current attorney fee structure as well as opportunities to improve representatives’ access to case information and documentation. The TEP provided SSA with recommendations to test as part of a future demonstration to increase representation at the reconsideration level and improve the quality of that representation to help SSA arrive at the correct outcome as soon as possible.
SSA is considering a few options for alternative fee structures. One, a minimum fee, that would ensure that ARs receive at least a certain amount for all awarded claims, or 25 percent of back benefits, whichever is greater, up to $6,000. This minimum amount would likely be around $2,500. We consider this level because it is close to the current average fee of $2,900. In theory, this guaranteed minimum could induce ARs to take some claims that they otherwise would not have taken, while minimizing the risk of paying extra for claims that the ARs would have taken under current policy.
A second option is a flat fee for awarded claims. This flat fee would likely be around $3,000, for the same reasons mentioned earlier. In this case, the flat fee is slightly above the average payment to increase representation.
See also this study that was completed last summer.The AR Demonstration (ARD) will test at least one alternative fee structure and will evaluate the impact and quality of representation at the reconsideration level of adjudication and other outcomes. ...
The interesting thing is that raising the fee cap isn't even being considered. I think that would help more claimants get representation than a minimum fee. The problem isn't so much that attorneys are scared of getting a low fee as it is that attorneys are scared of getting no fee. Raise the minimum fee and the risk-reward ratio is altered so that we take on more iffy cases. I think this proposal would only affect my behavior in cases such as a claimant who is already receiving early retirement benefits and that's not that much left to get for them if disability benefits are approved. It would not affect my behavior in cases at the initial and reconsideration levels since I already take on those cases. It might affect the behavior of others who don't take on cases at the initial and reconsideration levels but I think most already are taking on cases at the initial and reconsideration levels. Right now the group that has the most difficulty obtaining representation are those under the age of 50. This proposal would do nothing for them. The flat rate fee would be especially bad since it would make the risk-reward ratio even worse. We would still have the same risk but the reward for a win would be less. It's the risk-reward ratio that Social Security needs to be looking at.
38 comments:
I would like to see them add a flat fee for representing claimants who are in front of ALJs after a continuing disability review or for claimants with non-disability issues such as overpayments. Very few of them are represented because there is no provision for a fee and it would make a difference.
One major problem I'm having is even getting the local office to recognize and affirm I'm the attorney before the first denial on claims I'm filing electronically for incoming claimants. Sounds like a polite attempt to cut our incomes even further as the approval rates continue to go down. I have been feeling like they are trying to show us the door for the last few years. The maximum fees while becoming more rare are helping me to keep my doors open.
This administration wants to make it harder for claimant's to get representation not easier. They want to deflate us out of the business. We can all try to get on with Legal Aid offices and use our skills for a small set salary as opposed to starving in private practice. Heritage Foundation BS that reeks!
"More iffy"
The average fees at the Recon level are much lower than at the hearing level because the claim is decided without the hearing level delay, so the back award is less. Allowing a minimum fee in favorable cases would be a much greater incentive to representation at the reconsideration level than an increase in the maximum fee would be. Very few cases awarded on reconsideration have maximum fees.
"The problem isn't so much that attorneys are scared of getting a low fee as it is that attorneys are scared of getting no fee."
But that's exactly what the study is proposing - it guarantees a minimum fee of $2500 so that attorneys don't need to be afraid of getting no fee.
"Raise the minimum fee and the risk-reward ratio is altered so that we take on more iffy cases."
I'm not sure if this is a suggestion or a complaint, but again, this is what the study proposes. The goal is to get more representation, so it sounds like you're agreeing that the minimum fee will achieve that.
The quality of work done by a representative at the initial and reconsideration level would improve if representatives had greater access (any acces!) to the SSA claim file.
"Raise the minimum fee and the risk-reward ratio is altered so that we take on more iffy cases."
and in the whole written statement, not one thing about if they are actually disabled or not, but if there is a chance of getting paid, and how much to get paid.
That is the truth of the matter, isnt it?
A minimum fee is a dang good idea if it applies to redeterminations and terminations.
Claimants who are facing termination of benefits have no back benefits for a fee and $700 or less in benefits isn't going to make it easy for them to pay a rep out of pocket and still pay the water and electric bills.
"Raise the minimum fee and the risk-reward ratio is altered so that we take on more iffy cases."
Hmmm? So you are stating money is the sole motivation. If you analyzed it as an iffy case at the beginning, why would the prospects get better because there is a higher fee cap? You kind of implying you will work harder on iffy cases than usual.
It's funny that the purpose of this study and any potential test project is "to help SSA arrive at the correct outcome as soon as possible." Basically SSA is saying they are unable on their own to reach the correct decision at the initial and reconsideration levels.
These proposals are bad and predicated on faulty premises. First of all, I like to do the application if possible. Sometimes, someone gets approved on initial or reconsideration. That would have been missed if I had waited to request the hearing. Also, errors and omissions can be made on those forms that require you to run around documenting or correcting something. Give me the case early! Sometimes, I'm able to build a case that appeared difficult in the beginning. It would be nice if the cap could be raised though here in Mississippi it usually wouldn't make a difference most of the time, but this is something that hasn't been done in awhile.
Some interesting ideas. Wish there was some way they could tie ALJ pay to their ability to issue legally sufficient decisions, too.
I'm very concerned that this is setting representatives up to be set on a fool's errand. I say that because I believe the real unspoken truth is this is a rationing system. As such the first two denials and dismal early approval percentages are necessary to make the system tougher and longer to se who is still standing so to speak. I believe no matter what we will be in the majority of the claims for long periods with much less return. In other words very few claimant's reps will be able to stay in business resulting in more unrepresented claimants. Very skeptical of anything coming from these Heritage thinkers.
I'm not sure who would pay a flat fee which is only an advantage for low paying cases. I don't mind winning a case in the early stages, that's easier for me. But our fees come from the claimant's back money, so raising fees for those who didn't get much isn't good for the claimant.
Unfortunately, going to Legal Services isn't a solution. Funding to them has been cut drastically so that they quit doing disability cases and cut out the paralegals who were doing the cases.
Hey Glass House Dwellers (SSA)! Maybe eliminate the reconsideration level entirely in order to improve the quality of decision-making and expedite correct decision.
10:12 and 12:30 are on the right track. Again, most of us aren't doing this for the money alone. Of course I hope I win a case with a max fee, but raising the minimum fee wouldn't affect my decision to take a case at all. If there was a way to get paid for case with no fee, cessations and over payments, that would be nice, but in the current yearning to cut the program for everybody, I'm not expecting that. And anything, anything, that further reduces the fee in a higher paying case, I'm completely against.
Well my attorney only spent 2 hrs with me. I was approved on initial. In 3 months after she hit the "submit" button she got her 6K. I should have contested that amt to SSA. Later, I found multiple errors in my app & it resembled grammar from an 8th grader!!
Last year in it's "improved efficiency" plan to the OMB (which of course, OMB signed off on before the final plan was submitted), SSA said it planned to stop administering fee payments for reps as a cost savings.
3:40, if the fee was $6000 the total back award was at least $24,000. Even assuming a PIA of $2000 a month that means 12 months of back benefits, so your disability started at least 9 months before you applied.
Why did you wait so long? If you'd applied sooner, there would have been fewer back benefits. And if you didn't know you could get retroactive benefits and the lawyer helped you with that, then your $6000 was money well spent.
Thanks 3:40. Yes, a rep that wants their claimant paid will take the time to get all the relevant information into the application which of course helps the case. I did an appeal on a case where is was shocking on how much information was missing from the application. If you're approved on initial, yes you had a good case, but the rep made sure SSA could see that.
Perhaps I am mistaken, but won't any major fee changes require congressional approval?
If they really care so much about claimant representation why not guarantee us a flat minimum fee for every case we file win or lose, followed by a winner's fee? I somehow doubt any of this is about encouraging representation!
Why should SSA have to be the middleman for getting a representative paid fees?? Representatives have a business...deal with those whose case you chose to take yourself. Such a waste and HUGH amount of paperwork for FOs to deal with when an employee's time could be spent on so many other workloads. I just don't get it.
@6:30 PM
Sure, let's start paying reps for every claim they file, regardless of how frivolous or illegitimate the claim is. What could possibly go wrong?
Hey 9:18. Do you realize that the Administration charges almost $100 to verify a fee agreement and send a check? I'm sure some cause more headaches than others but if they are averaging more than 15 minutes to verify an agreement and calculate 25% there is a problem. I will gladly take over this task and bill the government at a bargain of $100 per hour.
I think paying all claims is a bad idea, too. However, I think that...
1. The cap should be lifted to $10,000
2. A minimum fee of $3000 that go to a hearing.
3. A minimum of $1500 for initial/reconsideration
4. All fees paid by SSA, not taken from claimant (could be means tested).
5. If the claimant was insured upon intial application, but was denied at the hearing... If later found to be disabled under another application, ALL BACK PAY must be paid up to the original on-set date. This would discourage ALJs from denying claimants they know should be paid (Even if it takes 10 years)... as long as they remain below SGA. The only exception might be if their conditions are alleged to be significantly worse.
Paying reps for cases filed, represented without a win, all this is not on the table or even remotely being proposed or considered. So why are you even talking about it?
Tim's ideas are good though I don't think it's going to happen now.
Wow. What ever happened to all the reps talking about how horrible it was SSA was putting people out on the street and how terrible the agency was for recovering overpayments etc...all of the sudden blood is in the water and the prospect of taking more money from the very same homeless hands you so gallantly were championing is sounding like a good idea.
I think the system should be changed to lower the maximum and no payment should be issued unless there is a hearing and a brief filed on behalf of the claimant or an appearance by a rep. No payment on initial claims or recons unless it is demonstrated that the rep was somehow able to produce documents or other items that specifically led to an allowance. My rep did nothing at my recon except send in the appointment papers and fee agreement. Not a single thing and still got paid. I’d bet there are hundreds of thousands of cases that are an exact copy of the scam I went though. Greedy and shameful.
I can promise you that under commissioner Saul this will never happen. The only time I was in the room with him am analyst asked a question about streamlining the attorney fee process and Saul’s response was “why would someone have an attorney file for social security? This has to be really rare.” DCO Grace Kim immediately changed the subject and led the questions from that point going forward.
Sorry 10:36 your experience was so bad. I can honestly tell you that the vast majority of my cases are a long drawn out battle to help my clients. I don't even bother billing my clients for medical records anymore because most can't or won't pay and I don't want to be a collection agent against my clients. Also, you would be surprised how many clients call at least two to three times a week and we talk to them usually a minimum of three to five minutes. Since this is a contingency fee process for the most part they know they aren't being billed per call. I also communicate with other medical and charitable organizations on a very frequent basis as a service to my clients uncompensated. I'm in this business at this point because I don't think disabled people should be treated like the scum of the earth only better than criminals. Don't worry because I think a world without reps is coming. I am doubtful I will be open for business in a couple of years. Cheers and God Bless.
Not sure why 10:36 got a rep if they were handling everything and had requested their own reconsideration. Of course I'm not for taking any additional fee from the claimant unless I have one where the claimant is getting some incredible amount of money. Rare here. Most of my cases are not max pay cases.
I'm wondering exactly who served on this so called "technical expert panel" that came up with these recommendations.
The reason I ask is that I retired from a Title TE position in an FO o 31 July of last year. At the time of my retirement, for the last several years I worked I was one of the senior TEs (if not THE senior TE) in my entire state, and I was damned good at my job. Had there been something like this panel publicly solicited or announced in April, I promise you I would have known about it and requested to participate in it. If it was anything that was at least mentioned to FO management, my manager would have approached me for at least for an opinion as they frequently did this on most everything involving Title II (even things technically I was not supposed to know about).
However, I can truthfully say I knew absolutely nothing about this so-called "expert panel". It sounds like management in Baltimore secretly recruited a bunch of people on the sly that they knew would agree to anything put before them, and they of course lived up to expectations.
None of these so called proposals are worth the paper that was wasted in writing them. Honestly, I could have lived with a minimum fee, but you will have a lot of cases where there will no or insufficient retro benefits to collect the fee. How those cases would be managed, I can't tell you. I don't see a Trump-appointed commissioner agreeing in any way, shape, or form to act as a collection agent for legal reps (you all have experience at how hard it is to get the agency to do it for cases they don't withhold your fees in error), so you would likely be forced to take legal action to collect part or all of the minimum fee. Good luck on that, collecting from mostly destitute people -- those of you who were forced to do this in the past know what I am talking about. Just because you can get a court order doesn't mean you can collect it.
The second option is a complete non-starter for any case that goes beyond the recon level (and in some states, even beyond the initial level). You'd be agreeing to accept 42% of your current fees in those cases.
In short, my take is this:
The agency wants legal representatives out of the process. Congress, its membership being largely made up of attorneys themselves, would never agree to this. As a result, the agency is in true Trump style doing a study. They created a so called "expert panel" to make the recommendations they wanted made but couldn't make politically. They will then conduct a study testing these "recommendations", one of which will be deemed "wildly successful" in the Trump style no matter what the actual data shows. The "successful" outcome will be considered the one behind the scenes that has the most adverse effect on representation.
The commissioner will then submit the "study" to Congress as a legislative agenda item to "improve representation". Some Tea-Party Republican will start adding it to all future spending bills, and eventually they'll get something through if the Democrats don't keep control of at least one house of Congress.
Eventually, the LTD disability mills (and we all know who those are) will be the only viable representatives as every other rep will be bankrupted out of the process.
Just my take.
A minimum fee is a good idea as there are some cases with little accrued and the attorney does not get a fair fee.
There should be a flat fee for CDRs or other hearings.
Also, if SSA really wants to improve the system, allow attorneys to collect the litigation costs on cases won. It would be easy to submit a form for the cost of the records and allow direct reimbursement. We would be able to get records faster if we were assured we would get reimbursed.
Funny that the money posts get two to three times the replies.
Its all about the Claimant! smh
8:52 AM As a claimant who has read EVERYTHING on this site over the past 4 years... Yes, a large part of this site is the concerns about pay of the lawyers. Well, if you look at it from the viewpoint that more claimants paid equals more pay for attorneys! It would be absurd to think that an attorney paid site shouldn't be concerned with factors that involve their ability to make a living!
On the other hand, perhaps due to news stories, this site has a great deal on SSA employees, including ALJs. The Madison (Wisconsin) story screams of petty jealousy, favoritism and nepotism. Fraud cases involving low level SSA employees seem to be really frequent. What Daugherty did seems to be lost, because SSA wants to put all the blame on Conn.
Additionally, there are clearly trolls and people who are against the entire program that comment on this site that clearly don't give a dam about claimants. People claim there hasn't been a denier culture in SSA since Huntington. The numbers don't lie! My experience tells me otherwise. The graphs tell otherwise. Comments on other sites paint a clear picture of a denier culture. So, yes your right, 8:52AM! There is not enough focus on the claimants!
Sorry, forgot all the SSA "working coditions," not enough money for operations, union negotiations, etc.
About Conn... I have yet to be shown 1 person by the media or SSA that Daugherty would not have approved anyway! Sure, another ALJ may have approved only 20, 30, 40, 50, 60 or 70% of them... But, Daugherty had a 95% approval rate? What did you have to do to get denied by him?
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