Upon receipt of a certificate of program completion from the
decision review office, fees for legal services provided by employees'
attorneys and legal assistants working under the direction of employees'
attorneys will be paid when an administrative order reducing or denying
benefits is submitted to administrative hearing, district court, or supreme
court and the employee prevails; or when a managed care decision is submitted
to binding dispute resolution and the employee prevails subject to the
following:
1. The organization shall
pay attorneys at one hundred ninety-five dollars per hour for all actual and
reasonable time other than travel time. The organization shall pay attorney
travel time at ninety-eight dollars per hour.
2. The organization may pay legal assistants
and third-year law students or law school graduates who are not licensed
attorneys who are practicing under the North Dakota senior practice rule acting
under the supervision of employees' attorneys up to one hundred fifteen dollars
per hour for all actual and reasonable time other than travel time. The
organization shall pay travel time at fifty-seven dollars per hour. A "legal
assistant" means any person with a bachelor's degree, associate's degree, or
correspondence degree in a legal assistant or paralegal program from an
accredited college or university or other accredited agency, or a legal
assistant certified by the national association of legal assistants or the
national federation of paralegal associations. The term may also include a
person employed as a paralegal or legal assistant who has a bachelor's degree
in any field and experience working as a paralegal or legal
assistant.
3. Total fees paid by
the organization for all legal services in connection with a dispute regarding
an administrative order is an amount equal to twenty percent of the additional
amount awarded except for an order litigating the initial determination of
compensability. Awards include those arrived at by a mutually agreed upon
settlement. Total fees paid under an administrative order may not exceed the
following:
a. Four thousand four hundred
eighty dollars, plus reasonable costs incurred, following issuance of an
administrative order under North Dakota Century Code chapter 28-32 reducing or
denying benefits, for services provided if a hearing request is resolved by
settlement or amendment of the administrative order before the hearing is
called to order.
b. Seven thousand
one hundred dollars, plus reasonable costs incurred, if the hearing request is
resolved by settlement or amendment of the administrative order after the
hearing is called to order but before a written decision is issued by the
administrative law judge; or the employee prevails after the hearing is called
to order by the administrative law judge.
c. Seven thousand nine hundred dollars, plus
reasonable costs incurred, if the employee's district court appeal is settled
prior to submission of briefs. Ten thousand five hundred fifty dollars, plus
reasonable costs incurred, if the employee prevails after hearing by the
district court.
d. Twelve thousand
six hundred fifty dollars, plus reasonable costs incurred, if the employee's
North Dakota supreme court appeal is settled prior to hearing. Thirteen
thousand nine hundred dollars, plus reasonable costs incurred, if the employee
prevails after hearing by the supreme court.
e. Two thousand one hundred dollars, plus
reasonable costs incurred, if the employee requests binding dispute resolution
and prevails.
f. Should a
settlement or order amendment offered during the DRO process be accepted after
the DRO certificate of completion has been issued, no attorney's fees are
payable. This contemplates not only identical offers and order amendments but
those which are substantially similar.
4. The maximum fees specified in subdivisions
a, b, c, and d of subsection 3 include all fees paid by the organization to one
or more attorneys, legal assistants, law students, and law graduates
representing the employee in connection with the same dispute regarding an
administrative order at all stages in the proceedings. A "dispute regarding an
administrative order" includes all proceedings subsequent to an administrative
order, including hearing, judicial appeal, remand, an order resulting from
remand, and multiple matters or proceedings consolidated or considered in a
single proceeding.
5. All time must
be recorded in increments of no more than six minutes (one-tenth of an
hour).
6. If the organization is
obligated to pay the employee's attorney's fees, the attorney shall submit to
the organization a final statement upon resolution of the matter. All
statements must show the name of the employee, claim number, date of the
statement, the issue, date of each service or charge, itemization and a
reasonable description of the legal work performed for each service or charge,
time and amount billed for each item, and total time and amounts billed. The
employee's attorney must sign the fee statement. The organization may deny fees
and costs that are determined to be excessive or frivolous.
7. The following costs will be reimbursed:
a. Actual postage, if postage exceeds three
dollars per parcel.
b. Actual toll
charges for long-distance telephone calls.
c. Copying charges, at eight cents per
page.
d. Mileage and other expenses
for reasonable and necessary travel. Mileage and other travel expenses,
including per diem, must be paid in the amounts that are paid state officials
as provided by North Dakota Century Code sections 44-08-04 and 54-06-09.
Out-of-state travel expenses may be reimbursed only if approval for such travel
is given, in advance, by the organization.
e. Other reasonable and necessary costs, not
to exceed one hundred fifty dollars. Other reasonable and necessary costs in
excess of one hundred fifty dollars may be reimbursed only upon agreement, in
advance, by the organization. Costs for typing and clerical or office services
will not be reimbursed.
8. The following costs will not be
reimbursed:
a. Facsimile charges.
b. Express mail.
c. Additional copies of
transcripts.
d. Costs incurred to
obtain medical records.
e. Online
computer-assisted legal research.
f. Copy charges for documents provided by the
organization.
The organization shall reimburse court reporters for mileage
and other expenses, for reasonable and necessary travel, in the amounts that
are paid state officials as provided by North Dakota Century Code sections
44-08-04 and 54-06-09.
Notes
N.D. Admin Code 92-01-02-11.1
Amended by
Administrative
Rules Supplement 2014-352, April 2014, effective
April 1, 2014.
.
Amended by
Administrative
Rules Supplement 2016-360, April 2016, effective
4/1/2016.
Amended by
Administrative
Rules Supplement 367, January 2018, effective
1/1/2018.
Amended by
Administrative
Rules Supplement 376, April 2020, effective
4/1/2020.
Amended by
Administrative
Rules Supplement 2021-383, January 2022, effective
1/1/2022.
Amended by
Administrative
Rules Supplement 2023-391, January 2024, effective
1/1/2024.
General Authority: NDCC 65-02-08
Law Implemented: NDCC 65-02-08,
65-10-03