I-1-2-57.Evaluating Fee Petitions

Last Update: 12/9/24 (Transmittal I-1-108)

As discussed in HALLEX I-1-2-53, an appointed representative may file a fee petition once the representative's services have ended (although the proceedings may continue).

Although there are jurisdictional limits at the hearing level regarding who can authorize a fee over $15,000.00 (see HALLEX I-1-2-6 B.2.), and direct payment is limited to a maximum of 25 percent of past-due benefits, there is not a maximum fee amount that can be requested or authorized under the fee petition process. A fee authorizer evaluating a petition must consider the following criteria for evaluating fee petitions and determining a representative's reasonable fee.

A. Criteria for Evaluating Fee Petitions

When evaluating the fee petition to determine a reasonable fee for representation, the fee authorizer must consider the factors listed below. In evaluating the factors, the fee authorizer will consider statements from the representative and any statement from the claimant and compare such statements to the materials in the claim(s) file.

1. Purpose of the Program

The fee authorizer must consider the purpose of the program. For Title II, the purpose is to provide a measure of economic security for program beneficiaries. For Title XVI, the purpose is 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. The Extent and Type of Services Provided

Depending on the circumstances in the case, the fee authorizer will consider the extent and type of the representative's services, including whether the representative:

  • Researched relevant law or rulings.

  • Was diligent in obtaining the necessary medical evidence, such as searching old records to obtain the evidence.

  • Arranged a medical examination.

  • Submitted medical or lay evidence of disability or other factors of entitlement or eligibility.

  • Contacted the Social Security Administration (SSA) as needed about the status of the claim.

  • Prepared for and participated at the hearing.

  • Promoted timely decision making or acted in a way that delayed the issuance of the decision without justification.

NOTE:

Decision makers must recognize that SSA does not set a standard value for each type of service because of the variety of activities in which a representative may engage and because the same activity may be more demanding in one situation than another. Even routine services are necessary and have value, but they may not be valued as highly as other, more complex representational activities. Additionally, decision makers may also need to consider locality or the particular geographical area when evaluating fee rates for services.

Examples:

  1. A representative submitted a copy of a hospital report that served as the primary basis for the administrative law judge (ALJ) finding the claimant disabled.

  2. A representative submitted a copy of medical evidence the representative had used successfully in a recent workers' compensation claim to support the claim for a period of disability and disability insurance benefits. The representative provided SSA with readily available evidence we may not have had. However, the submission of new medical evidence relating to the period before insured status expired would have been a far more valuable service.

3. Complexity of the Case

Evaluate the complexity of the case based on the work or documentation needed to resolve the issues. Do not underestimate complexity because of the representative's presumed knowledge or experience as a representative.

Example: A representative contacted numerous sources for information used to establish the claimant's date of birth, a task of some complexity.

4. Level of Skill and Competence Required in Providing the Services

Consider the issues involved and the actions the representative took to resolve them. Consider whether the representative supported each contention with evidence, whether the representative complied with SSA's rules and policies and applied them correctly and effectively during representation. Do not base the assessment on what the fee authorizer would have done or on what the representative could have theoretically done.

Example: One representative submitted a copy of the evidence the representative used in the claimant's workers' compensation claim but did not submit a brief. A representative in another case scheduled a medical examination and submitted the results for evaluation, along with other new evidence showing the claimant's condition and a brief explaining how the results of the evaluation show the severity of the claimant's impairments. The representative's actions in the second case demonstrate greater skill and competence.

5. Amount of Time Spent on the Case

Credit only the time spent on representation services before SSA (e.g., one hour to arrange a medical appointment), unless the time seems exaggerated or excessive (e.g., 20 hours to research a routine issue when the fee authorizer knows the representative regularly handles social security claims).

Refer to HALLEX I-1-2-57 B. below for time to exclude.

6. Results the Representative Achieved

Consider the results achieved along with all the other factors.

  • Do not permit this factor to completely override the others. For example, if SSA made a favorable determination on one claim and an unfavorable determination on another claim, but the representative provided similar services on both claims, the fee authorizer must not disregard the other factors and authorize the fee amount the representative requests in the first, but authorize no fee in the second, simply because of the outcome.

    EXCEPTION:

    If the representative and claimant entered into a contingency contract, which provided that there will be no fee if the claim is not favorably decided, SSA will honor that provision. In such a case, SSA will not authorize any fee for services if the representative submits a petition.

  • Do not authorize the fee primarily on the basis of the amount of benefits awarded (or lack thereof); the benefit amount payable is unrelated to the extent or caliber of services the representative provided.

Example: An assessment of the client's description of symptoms prompted the representative to develop evidence of a medical condition the field office and Disability Determination Services had overlooked. This established the claimant's entitlement to disability insurance benefits. When evaluating, credit the favorable results the representative achieved. Credit also the representative's demonstrated skill and competence in a case complicated by the claimant stressing the symptoms of a medical condition that alone was not disabling.

7. Level(s) in the Administrative Process

Consider the level in the administrative process at which the representation began, as well as the level to which the representative pursued the case.

8. Amount of Fee Requested

Consider the amount the representative requested, including any amount previously authorized and apply all of the factors listed above in conjunction with the excluded items identified in HALLEX I-1-2-57 B. below. After considering these factors, if the fee the representative requested is reasonable for the services provided, authorize a fee in the amount requested. The fee authorizer may authorize a fee in a greater or lesser amount than that requested, providing it is reasonable. When a claimant or any auxiliary beneficiary is liable for the fee or part of the fee for representational services, the fee authorizer must authorize the total fee, so the fee authorizer must consider any amounts previously authorized in their authorization of the total fee.

B. Excluded Activities

In evaluating the amount of time a representative spent on the case, the fee authorizer must exclude any time claimed for:

  • Preparing the fee petition or any other activities related to charging or collecting a fee, such as status inquiries; and

  • Services the representative did not provide before SSA. (See HALLEX I-1-2-5 and I-1-2-71 B.)

C. Expenses

The representative's expenses are not considered part of the fee for services. The representative must look to the claimant for reimbursement of any expenses. For the policy on out-of-pocket expenses, refer to HALLLEX I-1-2-5 B.

D. Concurrent Titles II and XVI Cases

Pursuant to Social Security Ruling 83-27, SSA determines a reasonable fee for the services provided in connection with both the Titles II and XVI programs when all the circumstances below apply:

  • The concurrent Titles II and XVI claims, or post-entitlement 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. 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 claims.

If the representative is eligible for direct fee payment, including cases where the representative validly assigned direct payment of their fee to an entity as described in Program Operations Manual System GN 03920.021, SSA will certify the fee amount for direct payment from 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.

When evaluating the fee petition to determine a reasonable fee for representation in concurrent Titles II and XVI cases that involved a common substantive issue, consider the circumstances above, as well as:

If all the criteria and factors are met and SSA is withholding for possible direct payment of an authorized fee, decide whether any services were so unique to the supplemental security income program that you must designate a portion of the fee amount as attributable to Title XVI exclusively.

E. Documenting the Fee Rationale

1. For cases in the Case Processing Management System (CPMS) only:

  • Complete the Form SSA-1178 fields (Evaluation of Fee Petition for Representation) (refer to POMS GN 03905.080) to document the rationale for setting the fee. Use this form to show the amount of the fee you find reasonable, and to explain and document your rationale. The rationale must reflect how you set the fee using the factors in HALLEX I-1-2-57 A.1. through A.8. above.

  • If the amount of the fee you believe is reasonable is $12,000 or less, file the SSA-1178 in the hearing office file when the SSA-1560A or other fee authorization document is distributed. (See HALLEX I-1-2-58 for procedures on processing the SSA-1560A.)

  • If the amount of the fee you believe is reasonable exceeds $15,000, send the recommendation you prepared to the authorizing official with the SSA-1560A or other fee authorization document. Refer to I-1-2-6 B.2 to determine the designated authorizing official.

2. For cases in the Hearing and Appeals Case Processing System (HACPS) or the Office of Appellate Operations Case Processing System (OAOCPS)

OHO staff will complete the Fee Petition Screen in HACPS to document the rationale for setting the fee. The Fee Petition Screen replaces Form SSA-1178 (Evaluation of Fee Petition for Representation). Use the Fee Petition Screen to show the amount of the fee you find reasonable and to explain and document your rationale. OAO staff will complete this information using the SSA-1178 template in OAOCPS. The rationale must reflect how staff set the fee using the factors in A.1. through A.8.

Follow the additional instructions below for hearing level cases:

  • If the amount of the fee you believe is reasonable is $12,000 or less, create the Authorization to Charge and Collect a Fee (e.g., SSA-1560A) based on the selections made on the Fee Petition Screen.

  • If the amount of the fee you believe is reasonable exceeds $12,000, alert the authorizing official that the recommendation is pending in the HACPS Fee Petition Screen. Refer toI-1-2-6 B.2. to determine the designated authorizing official.

F. Process Order

After the fee authorizing official issues the order, appropriate OHO or OAO staff will:

  1. Send copies of the authorization to the representative (or to the other individual if they filed the fee petition on behalf of the entity for services performed by the deceased representative) and the claimant;

  2. Add a copy to the claim(s) file;

  3. Send a copy to the effectuating components for processing or notify the effectuating component that a copy of the order is in the A section of the claim(s) file; and

  4. Update the appropriate tracking system(s) with the authorized fee amount and the date of the authorization.

OHO staff can refer to Standard Operations Procedure section 7.1.3 for additional instructions on processing the fee authorization.