TN 3 (03-95)
GN 03960.050 Assessing Whether the Fee Authorized Under the Fee Agreement Process Is Reasonable
Fee agreements can involve uncertainty and some risk for both parties to the agreement. For example, the contingency fee agreement often used by attorneys for Social Security representation calls for the attorney to receive nothing if unsuccessful; however, if the attorney is successful, the claimant expects to pay up to 25 percent of past-due benefits he/she may not otherwise have received. When entering into a fee agreement, both the claimant and the representative agree to abide by the result, which is subject to SSA's approval authority.
B. Policy - Deference to Agreement
When it meets the conditions for approval and is not otherwise excepted, SSA defers to the written fee agreement as the expression of the intentions of the parties. Generally, parties expect to be held to the terms of their agreement. However, the reviewer must intervene and set a reasonable fee, either affirming, decreasing, or increasing the original fee when through a request for administrative review:
the claimant, an affected auxiliary, or the representative expresses dissatisfaction with the fee; or
the decision maker has shown that either the representative did not represent the claimant's interest adequately or the fee is clearly excessive in light of the services provided.
The review mechanism enables the Secretary to redress situations in which the fee authorized under the agreement is not reasonable compensation for the services provided in the case. It does not compel changes to the fee authorized under the agreement.
C. Policy - Reasonable Fee Assessment
1. Factors Considered
SSA must consider the factors listed below when assessing whether the fee authorized under the fee agreement process is reasonable; and deciding whether to modify a fee and, if so, to what extent. These are modeled on the factors used in the fee petition process. They are:
Consider the expectations of the parties, as expressed in the written agreement filed with SSA.
For title XVI cases, consider the purpose of the supplemental security income program, i.e., to assure a minimum level of income for recipients who otherwise do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. (GN 03930.105A. discusses this factor.)
For title II cases, consider the purpose of the program, i.e., to provide a measure of economic security for program beneficiaries. (GN 03930.105B. discusses this factor.)
Consider the type and extent of services the representative provided. (GN 03930.105B.1. discusses this factor.)
Evaluate the complexity of the case based on the work or documentation needed to resolve the issues. (GN 03930.105B.2. discusses this factor.)
Consider the level of skill and competence required of the representative in providing the services. (GN 03930.105B.3. discusses this factor.)
Consider the amount of time the representative spent on the case. (GN 03930.105B.4. discusses this factor.)
Consider the results the representative achieved. (GN 03930.105B.5. discusses this factor.)
Consider the level(s) in the administrative process: (1) at which the representation began and (2) to which the representative took the claim. (GN 03930.105.B.6. discusses this factor.)
Consider the amount the representative requested for his/her services, including any amount authorized or requested before, but not including, the amount of any expenses incurred. (GN 03930.105B.7. discusses this factor.)
2. Fee Reasonable
The factors the reviewer considers are qualitative as well as quantitative. Therefore, the reviewer uses all the factors above to determine whether the fee should be considered reasonable.
The reviewer must affirm the fee amount if he/she finds that the fee initially authorized under the fee agreement process is reasonable for the services provided.
The reviewer must modify the fee to the correct amount if GN 03960.040B.2.d., GN 03960.045D. or GN 03960.047D. apply, and the reviewer finds that the corrected fee which results from the agreement is reasonable for the services provided.
The fee initially authorized under the fee agreement process is $3,490. The claimant timely requests that SSA lower the representative's fee. The reviewer concludes after considering the factors in C.1. above, that a reasonable fee for the case would be $3,490. There has been no change in the amount of the past-due benefits or past-due benefits payable. The reviewer affirms the fee amount.
3. Fee Not Reasonable
The reviewer must modify the fee if he/she finds that the fee authorized under the fee agreement process is not reasonable for the services provided. He /She must authorize a reasonable fee based on evaluation of the factors listed in C.1. above. (Also see 5. below in concurrent titles II and XVI cases.)
The fee authorized under the fee agreement process is $4,000. The claimant timely requests that SSA lower the representative's fee. The reviewer concludes that a reasonable fee for the representative's services, based on his evaluation of the various factors listed in C.1. above, is $2,500. The reviewer must decrease the amount of the fee to $2,500.
The fee initially authorized under the fee agreement process is $4,000. The claimant timely requests administrative review, stating that the fee agreement calls for a fee of the lesser of $4,000 or 25 percent and that 25 percent of his past-due benefits is $2,250. SSA had revised its determination of the past-due benefits payable. The reduction occurred immediately after release of the notice of the amount of the fee. The reviewer proposes to modify the fee to $2,250. The representative responds to the notice, stating that $2,250 is an entirely reasonable fee for his services. Because the parties did not object, the reviewer modifies the initially authorized fee to $2,250, as provided in GN 03960.045D.
The fee authorized under the fee agreement process is $3,500. The representative timely requests that SSA increase the amount of the fee to $5,500. The reviewer concludes that a reasonable fee for the case would be $5,500 based on her evaluation of the various factors contained in C.1. above.
4. Evaluation - Affected Auxiliary Beneficiary
To evaluate how an auxiliary beneficiary is affected the reviewer follows GN 03960.043 and considers:
the total amount of the fee, based on the past-due benefits of the primary claimant and the auxiliary beneficiary(ies); and
the services the representative provided them.
5. Evaluation - Concurrent Titles II and XVI Case
When evaluating concurrent titles II and XVI cases and all of the circumstances below apply, SSA adheres to the policy that it will determine a reasonable fee for the services provided in connection with both programs. This also means SSA will, if the representative is an attorney, certify the fee amount for direct payment from the 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.
Circumstances that apply are:
The concurrent titles II and XVI claims or PE actions involved a common substantive issue, e.g., disability.
Although some services may have been unique to the title II or XVI claim or PE 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.
The reviewer follows GN 03960.043 and considers the total amount of the fee based on the past-due benefits resulting from both the titles II and XVI claims.
1. Concurrent Titles II and XVI Case - Identify Common Issue
For concurrent titles II and XVI cases:
Examine the claim(s) file and/or telephone the FO to:
identify the common substantive issue involved in the concurrent titles II and XVI cases;
identify whether the representative's services led to favorable determinations or decisions in both programs; and
confirm that the claimant and the representative have received both notices, conveying the total amount of the fee based on the past-due benefits resulting from the titles II and XVI claims.
Follow GN 03960.043B., if necessary.
2. Request an Explanation of Services and Time Spent
If you expect to consider the representative's services in the case, ask the representative to submit a written explanation detailing his/her services and the amount of time spent on the case if the review stems from a request filed by the:
claimant, an auxiliary beneficiary, or the decision maker; or
representative who has not provided the information.
NOTE: If the circumstances in 1.a. above apply, ask the representative for an explanation which addresses services in connection with both the titles II and XVI claims or PE actions.
3. When to Request an Explanation
Ask the representative to provide the detailed explanation and send copies to both the claimant and the decision maker as early in the review process as possible. Obtain this explanation when:
acknowledging a representative's request for administrative review; or
notifying the representative of a request filed by the claimant, an affected auxiliary beneficiary, or the decision maker.
4. Give Opportunity for Comment
Send the explanation to the other parties, and give them the opportunity to submit written comments within 15 days, if:
NOTE: The reviewer will inform the other parties about the opportunity to submit written comments concerning the representative's explanation when the request is sent to the representative (see GN 03960.080, AR-11 for an example). If the representative provides the parties with copies of the explanation, the reviewer does not need to recontact the other parties.