The dark side of this legislation is that while the program shows great promise, it unfortunately will be funded, at least in part, by a 6.3 percent assessment which will be imposed on all social security disability attorney’s fees for claims decided after Jan. 31, 2000.
These regulations prohibit counsel from recovering this cost from beneficiaries, as attorneys may not “directly or indirectly, request or otherwise obtain reimbursement for such assessment from the claimant whose claim gave rise to the assessment.”
This assessment has been termed a “user fee,” as the Social Security Administration has suggested that it represents the administration’s costs in calculating and processing attorney fees in disability cases.
Should one wish, the fee can be avoided by asking the administration to release all back-due benefits directly to the claimant. In that instance, the attorney would look to his or her client for direct payment.
Until this recent legislation, attorneys could not receive a fee of more than $4,000 in a typical case if they chose to utilize the standard fee agreement provisions encouraged by the administration. With the imposition of the 6.3 percent user fee, the maximum attorney fee will henceforth be $3,748.
Still Hope
For attorneys who work in this field, there are a number of promising provisions in this bill from which we may yet benefit:
* After 2000, the assessment will remain capped at 6.3 percent of the attorney’s fee but can be reduced if it is determined that the administrative costs are indeed less than previously calculated.
* The General Accounting Office will study the cost of processing fees, whether the assessment should be a flat amount, and whether the assessment impairs access to representation.
* The General Accounting Office will recommend ways to cut the costs of processing fees, whether the assessment should be linked to how quickly the Social Security Administration processes fees, and whether the administration should process fees for representing supplemental security income claimants.
I’m sure I speak for many members of the disability bar in wishing the administration in this very promising program. It is our collective hope, however, that alternative funding measures can be realized so that this punitive legislation will not further discourage the widespread available of competent counsel.
The full text of this legislation can be found at http://waysandmeans.house.gov/ticketbill. pdf.
Meyer Silver is a partner in the Ardmore law firm Silver & Silver. He is the chair of the social security law committee of the Philadelphia Bar Association.
