I-1-2-46.Administrative Review of the Amount of the Fee Under the Fee Agreement — Procedures

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

A. Establish Authority to Conduct Administrative Review

Determine whether you have authority to act on the request for administrative review (see I-1-2-44(B.)).

  • If you have authority:

    • 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 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 sample language.

B. Examine the Hearing Office or Appeals File and Request for Administrative Review

1. Parties, Pertinent Documents and Timely Filing

  • Identify:

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

    • the fee agreement,

    • the determination of the fee amount, and

    • the issues to be resolved.

  • Screen the request for administrative review for:

    • timely filing,

    • proper party, and

    • the need for action on any other issue(s) raised.

Example:

The claimant objects to the calculation of the past-due benefits amount based on an adjustment in his worker's compensation. The claimant did not contact the effectuating component, but included the objection in his request for administrative review. Consider such an objection an implied request for reconsideration of the initial determination of the past-due benefits amount and forward that request to the effectuating component.

Refer to I-1-2-106 for sample language if the request is not timely filed and good cause for late filing not found.

2. Standard for Reviewing When the Decision Maker Requested Administrative Review

When a decision maker requested administrative review, decide whether evidence shows either that the representative did not represent the claimant's interest adequately or the fee is clearly excessive in light of the services provided.

Examples:

  1. The representative delayed the claim(s) by procedural missteps or by repeatedly requesting extensions of time to submit readily available information or evidence.

  2. The ALJ was ready to issue a favorable decision when SSA received a claimant's appointment of representative and fee agreement. The $3,700 fee which resulted under the approved agreement is clearly excessive for the time it took the representative to interview the claimant, complete an appointment of representative and a fee agreement, and submit them.

a. Decision Maker Standard for Requesting Review Met

If the evidence shows inadequate representation or a clearly excessive fee, proceed to 3.

b. Decision Maker Standard for Requesting Review Not Met

If the evidence does not show inadequate representation or a clearly excessive fee, and there is no clear clerical error, send a letter telling the decision maker that:

  • you did not find evidence of inadequate representation or a clearly excessive fee;

  • the Social Security Administration (SSA) will not review the determination; and

  • the determination of the amount the representative may charge for his/her work in the case is final.

Send copies of the letter to the other parties. Take no further action on the request.

Refer to I-1-2-111(E.), for a sample letter to the decision maker denying review of the fee amount.

c. Evidence Shows Clerical Error Only

If you do not recognize evidence of inadequate representation or a clearly excessive fee, but there is a clear clerical error involved (see I-1-2-47(A.3.), SSA Incorrectly Determined Fee), send a letter telling the decision maker that:

  • you did not find evidence of inadequate representation or a clearly excessive fee;

  • SSA will not review the determination;

  • you are notifying the effectuating component that a clear clerical error has been made; and

  • you are requesting the effectuating component to release a corrective notice(s) with new administrative review rights.

Send copies of this letter to the other parties and notify the effectuating component(s) of the need for corrective action.

3. Additional Development

a. Request Not Filed Timely

  • If the requester, other than a decision maker (see “NOTE”), did not provide a reason(s) for late filing, obtain an explanation.

  • Contact the other parties concerning the explanation, if that would help.

  • You may modify the letter acknowledging receipt of the request for administrative review, described in C. below, 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 E. below.

NOTE:

If a decision maker does not request administrative review timely, the reviewing official will not review the determination, unless the decision maker submits, with the request, information that establishes good cause for late filing.

b. Claim File(s)

  • Determine if you need the claim(s) file.

  • If the party requesting review has objected to the calculation of the fee under the agreement or the amount of the past-due benefits, or there is an apparent error in the calculation shown in the claimant notice of the fee amount, request the claim(s) file and ask the processing center (PC) or the field office (FO) to include the following when forwarding the file:

    • completed Form SSA-1129-U3 (Attorney Fee Case - Past-due Benefit Summary) in title II cases;

    • the explanation of proration of withheld past-due benefits, if there are one or more auxiliary beneficiaries living in a household separate from the claimant;

    • Supplemental Security Income Display (SSID), with the complete computation history, or the manually completed computation form in a title XVI claim; and

    • a brief narrative explanation if an unusual situation is involved or the reviewing official anticipates difficulty following the computation.

c. Concurrent Titles II and XVI Claims Involved

Ascertain whether SSA has determined the total fee for all services under the fee agreement when the request involves concurrent titles II and XVI claims involving a common issue, or one or more delayed affected auxiliaries (see I-1-2-44(E.)). If SSA has not determined the total fee, then:

  • Telephone the effectuating component (an inquiries specialist in the PC or an operations supervisor in the FO) and ask that they expeditiously make a fee determination, notify all parties, and send a copy of the fee determination to you.

  • Notify the parties when you acknowledge receipt that you cannot conduct the review until SSA determines the total fee.

  • Diary the request for 30 days, unless the effectuating component indicates that outstanding development will require a longer diary period, to await notice of the fee determination. If you have not received notice of the outstanding fee at the end of the diary period, send a written follow-up to the module branch chief in the PC or the office manager in the FO.

d. Action on 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 (examples of good cause are provided at 20 CFR 404.1720(d)(2)(ii) and 416.1520(d)(2)(ii)), or the request was not filed by a proper party, prepare a letter telling the requester:

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

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

Send copies of the letter to the other parties.

Refer to I-1-2-106 for sample language to use when denying a request for administrative review based on improper party or good cause for late filing not found.

C. Provide Notice of the Request for Administrative Review

Refer to I-1-2-109 for sample language for the circumstances described below.

1. Timely Filed Request

  • Prepare a letter telling the requesting party that we:

    • received his/her request;

    • are notifying the other parties;

    • are giving the other parties the opportunity to comment or submit additional information; and

    • if appropriate, will not conduct the review until SSA has determined the total fee under the fee agreement.

  • Prepare letters informing the other parties:

    • who requested administrative review;

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

    • if appropriate, we will not conduct the review until SSA has determined the total fee under the fee agreement.

  • Enclose copies of the request for administrative review. Because of Privacy Act considerations, do not reveal the:

    • Claimant's mailing address when sending a copy of a letter addressed to the claimant, or the claimant's request for administrative review, to a party other than that claimant's representative or the decision maker.

    • Auxiliary beneficiary's mailing address when sending a copy of a letter addressed to the beneficiary, or the beneficiary's request for administrative review, to a party other than that beneficiary's representative or the decision maker.

    This means the address must be covered before photocopying or completely blocked out before mailing.

    NOTE:

    Representatives are bound by the regulations not to disclose any information we furnish or disclose about the claim or prospective claim of another person (20 CFR 404.1740(c) and 416.1540(c)).

  • Send the letters and enclosures and diary the case for 30 days.

2. Late Filing - 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 letters described in I-1-2-46C.1. Refer to I-1-2-107 for sample late filing language.

D. Examine the Claim File(s)

When you receive the claim file(s):

  • Ensure that you properly identified all parties to the administrative review.

  • Follow-up for any additional information you requested but have not received. Advise the party that if we do not receive it within 15 days, we will make our determination on the request for administrative review based on the information in file. Re-diary the case for 30 days. When you receive the information or when the diary expires, proceed with E. below.

E. Review the Fee Agreement Approval

1. Evaluation Criteria

Consider these questions:

  • 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.).)

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

If the decision maker's approval determination was incorrect, proceed to 2. below.

If the decision maker's approval determination was correct, proceed to I-1-2-47.

NOTE:

The reviewing official will include in the notice of the administrative review determination (see I-1-2-48) a response to any issues(s) raised concerning the approval of the fee agreement.

2. Decision Maker's Approval Determination Was Incorrect

a. Initial Actions

  • Prepare a letter to the parties explaining that:

    • you, the reviewing official, plan to disapprove the fee agreement and why; and

    • they may, within 15 days, comment in writing and submit relevant information. (The reviewing official may include this explanation in the acknowledgment letter.)

  • Diary or re-diary the case for 30 days.

  • When the diary period expires or, if earlier, when all parties have commented, the reviewing official will decide whether the decision maker's approval determination was correct, considering the fee agreement, comments and relevant information received.

b. Reviewing Official Determines Fee Agreement Incorrectly Approved

  • Proceed as described in I-1-2-43(F.), modifying the procedures to accommodate the fact that the fee agreement was initially approved.

  • Advise the representative that he/she must request approval of any fee he/she wants to charge and collect (see I-1-2-1(C.), Informing Representatives of Fee Regulations). Enclose a Form SSA-1560-U4 (Petition to Obtain Approval of a Fee for Representing a Claimant before the Social Security Administration) for that purpose.

  • In a title II case involving an attorney representative and withheld past-due benefits, advise the attorney that within 60 days he/she must request approval of the fee or file a written notice of the intent to do so, to receive direct payment from the claimant's withheld past-due benefits. (See I-1-2-53, Filing a Fee Petition.)