Last Update: 1/28/03 (Transmittal I-1-44)
A fee agreement timely submitted in connection with a claim favorably decided at the hearing level must be considered under the fee agreement process.
When a hearing office (HO) receives a fee agreement, the support staff will:
Date stamp the fee agreement, check to see if both the claimant and representative signed the document, and associate it with the claim(s) file.
Ensure the file contains Form SSA-1696-U4 (Appointment of Representative) or other notice of appointment (see I-1-1-11, Documenting Appointment of Representative, if none is in file).
Annotate the Form SSA-1128 (Representative Involved) with pertinent information and staple it to the outside lower right area of the claim file. (Refer to I-1-1-90, Samples, for Form SSA-1128.)
In the “Representative and Fee” section of the Hearing Office Tracking System (HOTS), enter the representative (if not previously entered) and fee agreement information: fee agreement indicator and date fee waived (when applicable).
When making a favorable or partially favorable decision, the Administrative Law Judge (ALJ) will:
Approve or disapprove the fee agreement.
The ALJ's approval or disapproval of a fee agreement is limited to whether the agreement meets the statutory conditions and is not otherwise excepted.
Inform the HO staff to set a diary for receipt of a copy of the claimant's notification about the fee amount set under the fee agreement or, for title II cases, to obtain a copy of the notice through SSA's Online Notice Retrieval System (ONRS - function 31 on the SSA MENU MAIN (refer to MSOM MCS 001.002)), if the ALJ approves the fee agreement but believes a request for administrative review of the amount of the fee may be appropriate. (See I-1-2-41ff. for general policy and procedures on administrative review.)
When the ALJ makes a favorable or partially favorable decision, the HO staff will:
Prepare Form HA-515-U6, order approving or disapproving the fee agreement.
Retain in the HO file the ODAR copy of Form SSA-1696-U4 (Appointment of Representative), the fee agreement and the order approving or disapproving the agreement.
Mail the order with the decision and distribute copies of the order with copies of the decision.
If the HO has already released the decision, mail the order separately. Use the cover sheet at I-1-2-114(A.) to fax the order and related documents to the processing center (PC).
If the ALJ disapproves the fee agreement, enclose a Form SSA-1560-U4 (Petition to Obtain Approval of a Fee for Representing a Claimant before the Social Security Administration) with the representative's copy of the decision and order. (See I-1-2-1(C.), Informing Representatives of Fee Regulations.)
Ensure that the claim(s) file contains the original copy of the appointment of representative, the fee agreement and a copy of the order. In concurrent titles II and XVI claims, place the original copy of the fee agreement and a copy of the order in the title II file and copies in the title XVI file.
Enter the fee agreement approved/disapproved date into HOTS.
Maintain a list of the claims for which the ALJ has asked to see a copy of the letter notifying the claimant about the fee amount set under the fee agreement.
After obtaining a copy of the letter that notifies the claimant about the fee amount, either through the ONRS for title II claims or by receiving the HO copy of the letter, determine whether the ALJ asked to see it (refer to C.1. 3rd bullet above). If so, immediately give the letter and the HO file to the ALJ so that he/she can decide whether to request administrative review of the fee amount.
If a representative contacts the HO to state that he/she received the hearing decision but did not receive a copy of the fee agreement determination, and the ALJ acted on the fee agreement, send the representative and/or claimant another copy of the determination.
If the ALJ did not make a fee agreement determination, the action depends on whether the file contains a timely filed agreement.
If the file contains a fee agreement filed with SSA before the date of the ALJ's favorable decision, the ALJ must review the fee agreement, make his/her determination and send a copy to the claimant, the representative, and the PC or the field office (FO). If the PC is the appropriate recipient of the determination, use the cover sheet at I-1-2-114(A.) to fax the fee agreement and determination to the PC.
If the PC or FO receives a favorable ALJ decision with an unprocessed fee agreement in file, they will contact the ALJ to request a fee agreement determination.
If the file does not contain a fee agreement, ask the representative to submit a copy of the one he/she claims he/she submitted. If there is no indication that SSA has received a fee agreement, the HO will advise the representative that we were unable to locate a record of the fee agreement having been received.
If a fee agreement is in the file, but the agreement was submitted to SSA after the date of the favorable decision, disapprove the fee agreement.
If the ALJ approved a fee agreement, but the PC inadvertently issues an incorrect notice advising the representative to file a fee petition, review the HO copy of the award notice or, for Title II claims, check the ONRS. Fax the fee agreement and approval order to the PC using the cover sheet at I-1-2-114(A.) and request that the PC process the fee agreement.
The ALJ will make a determination on a fee agreement only when the ALJ decides the claim wholly or partially in the claimant's favor.
If the ALJ requests administrative review, he/she must send the written request (see I-1-2-103) and copies of all pertinent materials to the Regional Chief ALJ.
The ALJ must:
file the request within 15 days of the Office of Disability Adjudication and Review (ODAR) receiving the notice of the fee amount, and
explain in the request why the ALJ believes there is evidence that the representative did not represent the claimant's interest adequately or that the fee is clearly excessive in light of the services provided.