I-1-2-43.Administrative Review of the Approval or Disapproval of the Fee Agreement — Procedures

Last Update: 1/28/03 (Transmittal I-1-44)

Regional Chief Administrative Law Judges (RCALJs), the Deputy Chief or Chief ALJ and the Deputy Chair or Chair of the Appeals Council and their support staff follow the five-step review process below to review the approval or disapproval of a fee agreement and act on the administrative review request.

A. Establish Authority to Conduct Administrative Review

Determine whether you have authority (see I-1-2-42(B.)) to act on the request for administrative review.

  • If you have the authority to conduct administrative review, secure the hearing office (HO) file (or appeals file in the Office of Appellate Operations (OAO)) and proceed with steps B. through E. below.

  • If you do not have the authority, acknowledge receipt, advising the requester that you are referring the request to the individual delegated the authority to conduct the review, and forward the request as indicated. Refer to I-1-2-105 for a sample letter to a representative.

B. Examine the File and Request for Administrative Review

Examine the HO file (or appeals file in OAO) and the request for administrative review.

  1. Identify:

    • all parties (i.e., representative(s) and the claimant or the individual whom we recognize as having the authority to sign the fee agreement on the claimant's behalf);

    • the fee agreement; and

    • the determination.

  2. Screen the request for administrative review for:

    • timely filing;

    • proper party; and

    • the need for action on any other issue(s) raised (e.g., the claimant objects to a date established for disability or a date of birth determination).

  3. Enter the pertinent information into the appropriate tracking system when the administrative review request is received, and as it is processed to completion.

    • In the Regional Office, use the Regional Office Fee System (ROFS).

    • In the Attorney Fee Branch (AFB), use the Attorney Fee Tracking System.

C. Initiate Necessary Development

1. Late Filing - Requesting an Explanation

Obtain an explanation for the late filing of a request for administrative review, if the requester did not provide a reason(s). You may also wish to contact the other parties concerning the explanation. You may modify the letter described in D.1. below, which acknowledges receipt of the request for administrative review, to ask for additional information. Ask for a response within 15 days and diary the case for 30 days. If you do not receive an explanation at the end of 30 days, proceed to 2. below.

2. Denial of Request - Late Filing or Filing by Improper Party

If the request was not timely filed and you do not find good cause for the late filing based on the explanation (refer to 20 CFR 404.1720(d)(2)(ii) and 416.1520(d)(2)(ii) for examples of good cause), or the request was not filed by a proper party, prepare a letter telling the requester:

  • the reason(s) you decided that he/she did not show good cause or that he/she is not a proper party; and

  • you will not act on the request for administrative review of the determination for that reason.

Send copies to the other party(ies) and the decision maker. Refer to I-1-2-106 for sample language to use when denying a request for administrative review.

D. Provide Notice of the Request for Administrative Review

1. Timely Filed Request

  • Prepare a letter telling the requesting party that we:

    • received his/her request;

    • are notifying the other party(ies) and the decision maker;

    • are giving the other party(ies) and the decision maker the opportunity to comment or submit additional information; and

    • will make our determination on the request for administrative review based on the evidence in file if we do not receive any additional information within 15 days.

  • Prepare letters informing the other party(ies) and the decision maker:

    • of the request for administrative review;

    • that they may, within 15 days comment in writing and submit relevant information; and

    • that we will make our determination on the request for administrative review based on the evidence in file if we do not receive any additional information within 15 days.

    Enclose a copy of the request for administrative review.

  • Send the letters and enclosures, include copies in the office file, and diary the case for 30 days.

Refer to I-1-2-107 for sample language.

2. Untimely Filed Request — Good Cause Shown

If the requester submits the reason(s) for late filing with the request for administrative review, and you find good cause for the late filing, prepare a brief explanation of the good cause finding to include in the letter described in 1. above.

E. Review the Fee Agreement Approval or Disapproval

1. Evaluation Considerations

  • Were the conditions for approving the fee agreement met at the time the decision maker made the favorable decision? (See I-1-2-12(A.).)

    Example:

    If an ALJ or AAJ disapproved a fee agreement because the representative did not sign it, and if the representative requests administrative review of the disapproval and submits a signed fee agreement, the reviewing official will not reverse the fee agreement determination. This is the correct action because the conditions of the fee agreement process were not met at the time the ALJ or AAJ issued the favorable decision.

  • Did any of the exceptions to the fee agreement process apply at the time the decision maker made the favorable decision or, if later, disapproved the fee agreement? (See I-1-2-12(B.).)

    Example:

    The representative filed the fee agreement with a Social Security Administration (SSA) office on January 7. An ALJ in another SSA office issued a favorable decision on January 13. On January 17, the claimant was declared legally incompetent. Subsequently, the ALJ received and disapproved the fee agreement, which was not signed by the claimant's legal guardian. The reviewing official must affirm the disapproval. The fee agreement met all the statutory conditions for approval and none of the exceptions applied when the decision maker favorably decided the claim; however, one of the exceptions applied when the decision maker received and disapproved the agreement.

  • If the decision maker approved the fee agreement, did the fee agreement contain any clause that restricted the circumstances under which the decision maker could approve it (i.e., a “two-tiered” fee agreement)? (See I-1-2-15.)

    Example:

    The fee agreement contains a clause stating that the fee will be the lesser of 25 percent of past-due benefits or $6,000, if the case is favorably decided at any point through the first hearing by an ALJ, but will be 25 percent of past-due benefits, with no cap, if the case is decided at a later point in the administrative appeals process.

    In this case, an ALJ making a decision in connection with the first hearing must approve the fee agreement (if it meets the other requirements). An ALJ making a favorable decision after remand from the Appeals Council must disapprove the fee agreement because, by its own terms, the agreement provides for a fee that exceeds the statutory requirements at that level of the administrative appeals process.

2. Reversal of Disapproval Determination

If the fee agreement met all of the conditions in I-1-2-12(A.) and none of the exceptions in I-1-2-12(B.) applies, the reviewing official must reverse the previous disapproval determination and approve the fee agreement.

3. Reversal of Approval Determination

If the decision maker approved a fee agreement in error (e.g., approved a two-tiered fee agreement after the point in the administrative process when the agreement ceased to apply), the reviewing official must reverse the previous approval determination and disapprove the fee agreement.

F. Issue Notice of the Determination Made on Administrative Review

1. Content of Notice

Prepare a letter to the requester that includes:

  • a response to the issue(s) raised;

  • an explanation of whether we affirmed or reversed the previous approval or disapproval determination made on the fee agreement;

  • a statement that the determination made on administrative review is not subject to further review; and

  • a statement that you are sending copies of the determination to the party(ies) and decision maker.

NOTE:

If you affirm the previous disapproval or reverse the previous approval, remind the representative that he/she must request approval of any fee the representative wants to charge and collect (see I-1-2-1(C.), Informing Representatives of Fee Regulations).

For sample notices, refer to I-1-2-108.

2. Distribution of Determination

  • Send the original and copies of the determination to:

    • the requester (original),

    • the other parties (see I-1-2-41(B.)) and

    • decision maker (see I-1-2-6).

  • Place a copy in the Regional Office or HO file (or appeals file in OAO), with a copy of the request for administrative review and any development associated with the request.

  • Send the determination to the processing center (PC) and/or field office that is effectuating the favorable decision on the claim(s). If the PC is withholding the claimant's past-due benefits pending the determination on the administrative review request, use the transmittal sheet at I-1-2-114(B.) to fax the determination to the PC.