I-1-2-15. Two-tiered Fee Agreements

Last Update: 2/25/05 (Transmittal I-1-48)

A. General Policy

A claimant and his/her representative may submit a fee agreement that includes a provision limiting the agreement's application to services through a specific level of the administrative appeals process. Such an agreement would provide, in essence, for a two-tiered fee structure. The decision maker will be able to readily ascertain, at the time of the favorable decision, which tier of the fee structure applies, and will either approve or disapprove the fee agreement, based on the current level of appeal.

B. Partially Favorable Decisions

When an ALJ issues a partially favorable decision at the initial hearing level and approves a two-tiered fee agreement that applies only to services through the initial hearing level, SSA authorizes the representative's fee in effectuating the partially favorable decision. Generally, if the representative is eligible for direct fee payment from the claimant's past-due benefits, SSA will process the representative's fee payment.

If the claimant appeals the partially favorable decision, further action related to the fee agreement and the representative's fee for services will depend upon:

  1. whether the representative pursues additional fees above $5,300 for his/her services,

  2. whether the fee initially authorized was less than $5,300, and

  3. the action SSA takes on the claim on appeal.

    Example: The following example illustrates a case involving both a subsequent decision (see I-1-2-14) and a two-tiered fee agreement. For the purpose of the discussion in 1. through 6. below, assume:

    • The fee agreement between the claimant and his/her representative is a two-tiered agreement that includes terms similar to the following:

      • If SSA favorably decides the claim at or below the first ALJ hearing level, the representative's fee will be the lesser of 25 percent of past-due benefits or $5,300.

      • If SSA favorably decides the claim at the AC level, or at the ALJ hearing level after a remand by the AC or a Federal court, the representative will petition SSA for approval to charge a fee not in excess of 25 percent of all past-due benefits.

      • If SSA does not issue a favorable decision, no fee will be charged in the case. With this provision, the representative agrees to represent the claimant on a contingency basis (i.e., the representative receives a fee only if SSA favorably decides the claim).

    • At the initial ALJ hearing level, an ALJ issues a partially favorable decision and approves the fee agreement.

    • The representative or claimant appeals the partially favorable decision or the AC reviews the decision on its own motion.

1. Fee Authorized Under the Approved Agreement Is $5,300

If the representative wants to be able to charge more, for any reason (e.g., because of the additional work anticipated on the appeal), he/she must file a request for administrative review of the fee amount within 15 days after he/she receives the award notice. The claimant or SSA decision maker may also ask SSA to decrease the fee amount. If no party requests administrative review timely, SSA will not review the fee authorization unless good cause for late filing is established.

If the representative requests administrative review, he/she should explain, for example: “If additional benefits are payable as a result of our appealing the ALJ's partially favorable decision, I intend to seek approval to charge a fee greater than $5,300. At the conclusion of the case, I will identify the amount I want to charge, the amount authorized before, the services performed for the claimant (and auxiliary beneficiary(ies) (if any)) and the time spent on each type of service.”

If the representative files a timely request for administrative review:

After SSA completes its action on the appeal, the component that takes the last administrative action will send the request for administrative review to the SSA official authorized to conduct the review. If the AC issued the last administrative action, the Attorney Fee Branch (AFB) will consider the administrative review request. If an ALJ issued the final administrative action, the Regional Chief ALJ is the reviewing official. The reviewing official will:

2. Fee Initially Authorized Under the Approved Agreement Is Less Than $5,300

It is not necessary for the representative to request administrative review when he/she receives the first award certificate if he/she only wishes to obtain a greater fee of up to $5,300 total based on any additional past-due benefits. If, on appeal, the decision is more favorable to the claimant and additional past-due benefits result, SSA will issue an amended notice of award indicating a new fee amount.

If the representative then wants to charge more than the total authorized fee for any reason, the representative must file a request for administrative review of the amount of the fee within 15 days after he/she receives the amended notice. Also, the claimant or SSA decision maker may ask SSA to decrease the fee. Refer to 1. above to determine the correct reviewing official.

3. Appeals Council Vacates the ALJ's Favorable Decision and Remands the Case

As stated in I-1-2-11, if the AC vacates the ALJ's favorable decision and remands the case, the ALJ's approval of the fee agreement and any authorization of fees under the agreement are vacated as well because there is no favorable decision. In the two-tiered fee agreement example described above, the representative agreed to represent the claimant on a contingency basis with the fee premised on a percentage of past-due benefits if successful, and nothing if unsuccessful.

If the outcome on remand is favorable:

If the outcome on remand is unfavorable:

4. Appeals Council Issues a Fully Favorable Decision

If the AC grants a request for review or reviews the hearing decision on its own motion and issues a fully favorable decision, the fee agreement the ALJ approved remains in effect. If a party requested administrative review of the fee resulting from the ALJ's decision, or requests administrative review of the fee resulting from the AC's decision, refer to 1. above.

5. Appeals Council Upholds the ALJ's Decision and Remands for a New Determination on the Onset Date

If the AC grants the request for review, upholds and does not vacate the favorable aspect of the ALJ's decision, and remands the case to an ALJ for a new decision with regard to the unfavorably decided issues(s), the fee agreement (which the ALJ approved) remains in effect. If a party requested administrative review of the fee resulting from the ALJ's decision, or requests administrative review of the fee resulting from the AC's decision, refer to 1. above.

6. Appeals Council Reverses the ALJ's Partially Favorable Decision and Issues a Fully Unfavorable Decision

If the AC grants the request for review or reviews a decision on its own motion, vacates the hearing decision, and reverses the ALJ's partially favorable decision by issuing a wholly unfavorable decision, the ALJ's approval of the fee agreement is no longer in effect because one of the criteria for fee agreement approval (i.e., a favorable decision), is not met. Because the attorney is representing the claimant on a contingency basis, with the fee premised on a percentage of past-due benefits if successful and nothing if unsuccessful, the attorney is not entitled to a fee and must return any previously paid fee amount to SSA if the unfavorable decision becomes the final decision of the Commissioner.

NOTE:

If the representative did not represent the claimant on a contingency basis, the representative must file a fee petition to obtain authorization to charge and collect any fee (including any amount SSA previously authorized and paid) for services provided at the administrative level.