I-1-2-5.Representative's Fees Not Subject to SSA's Authorization
Last Update: 1/28/03 (Transmittal I-1-44)
A. Payment by Non-Profit Organization or Government Agency
A prime purpose of the Social Security Administration's (SSA's) statutory authority to authorize fees for representation is to protect claimants against unreasonable fees. When a representative provides services to a claimant and a nonprofit organization or government agency pays for those services, the risk of unreasonable fees is eliminated.
Social Security Ruling SSR 85-3 modifies fee authorization provisions by providing that SSA need not authorize a fee if all the following conditions are present:
the claimant and affected auxiliary beneficiary(ies) are free of direct or indirect liability to pay a fee or expenses, either in whole or in part, to a representative or to someone else;
the entity which pays the fee and expenses incurred, if any, on behalf of the claimant(s) or beneficiary(ies), is a nonprofit organization or a Federal, State, county, or city agency;
a government entity provides or administers the funds used to pay a fee or any expenses; and
the representative submits a written statement to SSA waiving the right to charge and collect a fee and expenses from a claimant or auxiliary beneficiary(ies).
B. Out-of-Pocket Expenses
SSA is not involved in authorizing the amount of out-of-pocket expenses a representative collects. Out-of-pocket expenses are expenses a representative incurs, for which he/she has been paid or expects to be paid. Out-of-pocket expenses include, but are not limited to, the cost of obtaining copies of doctor or hospital reports and a birth and/or death certificate. Therefore, the fee SSA authorizes does not include payment for out-of-pocket expenses.
These expenses are matters for the representative and claimant to settle. However, SSA will question out-of-pocket expenses if it appears that the representative is attempting to circumvent SSA's fee authorization process by designating his/her services as an out-of-pocket expense.
C. Court Proceedings
SSA does not consider services in proceedings before State or Federal courts (even if the State court action was to establish relationship or death) to be a proceeding before SSA; therefore, the fee authorization provisions do not apply to court proceedings.
D. Legal Guardian or Other State Court Appointed Representatives
A legal guardian, committee, conservator, or other State court-appointed representative (hereinafter “legal guardian”) may ask the court to approve a fee for services provided in connection with proceedings before SSA. Therefore, if the court orders a fee, SSA's fee authorization is not required.
If a legal guardian asks SSA for information regarding fees, SSA should advise the individual first to ask the State court to approve a fee for all services, including those provided in connection with proceedings before SSA.
If a legal guardian files a fee petition, SSA must advise the legal guardian that SSA will not act on the fee request until the State court has acted.
EXCEPTION: If the legal guardian contacts SSA and states that the court declined to order a fee on the fee request or that he/she is dissatisfied with the fee the court orders, SSA will advise the legal guardian that he/she may file a fee petition with SSA for services provided in proceedings before SSA. If the legal guardian files a fee petition, the legal guardian must furnish SSA:
copies of his/her accounting to the court; and
copies of the fee request and the court's declination or any court ordered fee for his/her services as legal guardian.
E. Medicare Part A and Part B Cases
Fee Agreement Process Not Applicable to Medicare Cases The fee agreement process can not apply in Medicare cases because there are no “past-due benefits” from which to calculate a representative's fee. A successful appeal of a claim for payment or service in Medicare results only in a decision to:
pay a provider or supplier directly for items or services already provided or rendered,
reimburse a beneficiary for monies the beneficiary already has paid directly to the provider or supplier for an item or service, or
approve authorization for a request for service.
Services Below the Hearing Level for Part B Cases
SSA does not consider services below the hearing level in connection with claims in certain proceedings exclusively before Part B intermediaries or carriers to be services provided in connection with proceedings before SSA; therefore, the fee authorization provisions do not apply to those services.
Fee Petition Filed by a Representative for Services Provided to the Beneficiary
ODAR uses the same procedures and regulations, 20 CFR 404.1700 ff., it uses in a Social Security case, for the approval of a fee petition filed by a Medicare beneficiary's representative. However, because there are no past-due benefits in Medicare cases, there are no direct pay provisions for attorneys.
Fee Petition Filed by a Representative of Any Party Other Than the Beneficiary
The Centers for Medicare & Medicaid Services (CMS) views 20 CFR Part 404, Subparts J and R (42 CFR 405.701(c) and 42 CFR 405.801(d)) to apply only to fee petitions filed by the representative of a beneficiary. Therefore, a fee petition filed by a representative for services he/she provided to any party other than the beneficiary does not require SSA/Office of Disability Adjudication and Review approval.