GN 03930.010: Determining a Reasonable Fee Under the Fee Petition Process

changes
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~~Effective Dates: 07/16/2012 - Present~~
Effective Dates: 07/18/2018 - Present
~~TN 8 (02-05)~~
TN 11 (07-18)
GN 03930.010 Determining a Reasonable Fee Under the Fee Petition Process
A. Policy - General
A. Criteria for authorizing a fee under the fee petition process
The regulations prescribe the criteria for evaluating fee petitions and determining reasonable fees for representation. The fee authorizer must consider the purpose of the program(s) together with other factors.
An appointed representative may file a fee petition once the representative’s services have ended (although the proceedings may continue). We will assume that an appointed representative’s services have ended if he or she files a fee petition.
~~1. Program Purpose Considered~~
Only the appointed representative who performed the services can request a fee. We will not accept a fee petition filed on another representative’s behalf. Each appointed representative must file a separate fee petition.
~~a. Title II~~
Regulatory sections 404.1725 and 416.1525 state the factors for evaluating fee petitions and determining a reasonable fee for services the appointed representative provided. The fee authorizer must consider these criteria as well as the purpose of the program(s).
~~The fee authorizer must consider the purpose of the program (i.e., to provide a measure of economic security for program beneficiaries).~~
1. Considering the program purpose
~~b. Title XVI~~
The fee authorizer must consider the purpose of the programs:
* Under Title II, the purpose of the program is to provide a measure of economic security for program beneficiaries; and
* Under Title XVI, the purpose of the program is to assure a minimum level of income for the recipients who otherwise do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level.
The fee authorizer must consider the purpose of the program (i.e., to assure a minimum level of income for supplemental security income recipients who otherwise do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level).
2. Considering the regulatory factors
~~2. Other Factors Considered~~
The fee authorizer also must consider each of the following factors to determine a “reasonable” fee:
* extent and type of services provided,
* complexity of the case,
* level of skill and competence required in providing the services,
* amount of time spent on the case,
* results the representative achieved,
* level of administrative review to which the claim was taken and the level at which the representation began, and
* amount requested for services provided, including any amount authorized or requested before (e.g., for proceedings before a Federal court), but not including the amount of any expenses incurred.
~~The fee authorizer also must consider each of the following factors:~~
* The extent and type of services provided;
* The complexity of the case;
* The level of skill and competence required in providing the services;
* The amount of time spent on the case;
* The results the representative achieved;
~~* The level of administrative review to which the claim was taken and the level at which the representation began; and~~
* The amount the representative requested for his/her services, including any amount authorized or requested before (e.g., for proceedings before a Federal court), but not including the amount of any expenses incurred.
B. Analyzing each factor for fee authorization under the fee petition process
~~B. Policy - Concurrent Titles II and XVI Case~~
Although we consider the amount of benefits payable, if any, we do not base the amount of fee we authorize on the amount of the benefit alone, but on a consideration of all the factors listed in this section. The benefits payable in any claim are determined by specific provisions of law and are unrelated to the efforts of the representative. We may authorize a fee even if no benefits are payable. Each of the following factors must be considered:
Pursuant to Social Security Ruling (SSR) 83-27, SSA determines one reasonable fee for the services provided in connection with both the titles II and XVI programs when all of the following circumstances apply.
* The concurrent titles II and XVI claims, or postentitlement or post-eligibility (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, and 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.
1. The extent and type of services provided
If the representative is eligible for direct payment, see GN 03920.017E. for policy on the authorized fee amount SSA pays from the withheld title II and the title XVI past-due benefits.
The fee authorizer will consider the extent of the representative’s services, such as the representative’s diligence in obtaining the necessary medical evidence, and the type of services provided by the representative, such as whether the representative was required to research and apply relevant law or rulings in a manner that assisted in and promoted the expeditious processing of the case. Other considerations include whether and how timely the representative:
* arranged any required medical examinations,
* submitted relevant medical or other evidence related to the question of disability or other factors of entitlement,
* contacted us about the status of the claim, as needed,
* prepared for and participated at the hearing, and
* furthered the timely determination or decision of the claim.
~~C. References~~
* Out-of-pocket expenses, GN 03920.010C.
* Services not provided in proceedings before SSA, GN 03920.010D. and GN 03920.010F.2.
* Review of itemized services provided below the hearing level, GN 03930.100
* Determining the fee for services provided below the hearing level, GN 03930.105
The fee authorizer should also consider whether the representative without justification:
* acted in a manner that delayed the determination or decision, or
* did not provide or delayed in providing information we requested or required.
NOTE: Decision makers must remember that there is no standard value for each type of service, there are many activities performed by a representative during the course of the administrative proceedings, and the same activity may be more demanding in one situation than in another situation. Additionally, decision makers may also need to consider locality or the particular geographical area when evaluating fee rates for services.
For examples on evaluating services, refer to HALLEX I-1-2-57.
2. The complexity of the case
When considering the services performed by the representative, the fee authorizer will examine the complexity of the case, which might have affected the documentation that was necessary to move the case forward, the research that was required, and the various legal issues presented and argued.
3. The level of skill and competence required in providing the services
The fee authorizer will consider the issues related to the case, whether, and how the representative assisted in properly resolving them, and whether the representative supported each contention with evidence. The authorizer also will consider the representative’s familiarity with our rules and policies, whether the representative complied with them, and whether the representative applied them correctly and effectively during representation.
4. The amount of time spent on the case
The fee authorizer will consider the amount of time the representative spent on services he or she performed on the case. In evaluating the amount of time spent on a case the fee authorizer will exclude any time spent to prepare any fee documents, such as the fee petition or Form SSA-1695 (Identifying Information for Possible Direct Payment of Authorized Fees), and services the representative did not provide before the agency.
5. The results the representative achieved
The fee authorizer will consider the results achieved; however, the authorizer will not authorize a fee simply because of a favorable outcome or deny a fee simply because of an unfavorable outcome. While a favorably decided case will typically warrant a higher fee, the results achieved will not override other factors. For concurrent claims, a favorable result for one title is sufficient for this factor (i.e., an unfavorable result for one title or action will not affect a favorable result for the other).
Note: The authorized fee does not depend on the amount of the past-due benefits.
6. The level of administrative review to which the claim was taken and the level at which the representation began
The fee authorizer will consider the level of the administrative process that the representative was appointed, as well as the level at which the case was determined or decided. For more details, refer to HALLEX I-1-2-57A.
7. The amount requested for services provided
The fee authorizer will evaluate the amount the representative is requesting, including any amount authorized or requested before, or paid or to be paid by another source (e.g., third-party entity). When a claimant or any auxiliary beneficiary is liable for the fee or part of the fee for representational services, we must authorize the total fee, so the authorizer must consider these amounts in his or her authorization of the total fee. This evaluation will not include the amount of any expenses incurred.
NOTE: For the policy on out-of-pocket expenses, refer to GN 03920.010C, and for services not provided in proceedings before us, refer to GN 03920.010D and GN 03920.010F.2. For the policy on when representatives’ fees are not subject to our authorization, refer to GN 03920.010.
C. Other considerations to determine a reasonable fee
In cases where the representative’s services are provided in connection with both Title II and Title XVI programs, the fee authorizer will determine one reasonable fee for both titles when all of the following circumstances apply:
* The concurrent Titles II and XVI claims, post-entitlement or post-eligibility (PE) actions, involved a common substantive issue (e.g., disability or overpayment); and
* Some of the services provided may have been unique to the Title II or XVI claim or PE action, but most of the representative's services focused on resolving the common issue, and the representative generally did not perform different services for each claim.
D. Documenting the decision of the fee authorization
The fee authorizer will complete Form SSA-1178 (Evaluation of Fee Petition for Representation). For an exhibit of the form, refer to subsection GN 03930.150B.
On the form SSA-1178, the fee authorizer will record the amount of the authorized fee and provide a detailed explanation of how he or she arrived at the fee amount. The explanation will reflect his or her decision based on each of the factors described in GN 03930.010B. in this section.

POMS Reference

GN 03930.010: Determining a Reasonable Fee Under the Fee Petition Process