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

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.

• If the review is conducted in the Office of Hearing Operations (OHO) Regional Office, use the Fee Action Tracking System (FAcTS).

• If the review is conducted in the Office of Analytics, Review, and Oversight (OARO), use the web Attorney Fee System (webAFS).

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. You may also wish to contact other parties, as appropriate, 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 C.2. below.

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

If the request was not timely filed and there is no basis to 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 the requester did not show good cause or that the requester 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 any other relevant parties and the decision maker. Refer to HALLEX I-1-2-106 for sample language to use when denying a request for administrative review.

1. Timely Filed Request

• Prepare a letter telling the requesting party that we:

• received the request;

• are notifying any other parties and the decision maker;

• are giving any other parties 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 the file, if we do not receive any additional information within 15 days.

• Prepare letters informing any other parties and the decision maker:

• of the request for administrative review;

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

• that we will make our determination on the request for administrative review based on the evidence in the 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 claim(s) file, and diary the case for 30 days.

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

2. Untimely Filed Request - Good Cause Shown

If the requester submits an explanation for late filing with the request for administrative review, and good cause is found, a brief explanation of the good cause finding should be included in the letter described in D.1. above.

1. Evaluation Considerations

• Consider whether the conditions for approving the fee agreement were met at the time the decision maker made the favorable decision (see HALLEX I-1-2-12 A).

  Example 1:

  An administrative law judge (ALJ) or administrative appeals judge (AAJ) disapproved a fee agreement because the representative did not sign it. Thereafter, the representative requests administrative review of the disapproval and submits a signed fee agreement, but 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 fully favorable or partially favorable decision.

• Consider whether any of the exceptions to the fee agreement process applied at the time the decision maker made the fully favorable or partially favorable decision or, if relevant, at the time of the disapproval of the fee agreement (see HALLEX I-1-2-12 B).

  Example 2:

  The representative filed the fee agreement with a Social Security Administration (SSA) office on January 7, 2010. An ALJ in another SSA office issued a favorable decision on January 13, 2010. On January 17, 2010, 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.

• Consider whether, when the decision maker approved the fee agreement, it contained any clause that restricted the circumstances under which the decision maker could approve it (i.e., a “two-tiered” fee agreement) (see HALLEX I-1-2-15).

  Example 3:

  The fee agreement contains a clause stating that the fee will be the lesser of 25 percent of past-due benefits or $7,200, if the case is favorably decided at any point through the first hearing by an ALJ. However, it 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 HALLEX I-1-2-12 A and none of the exceptions in HALLEX 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.

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 relevant parties and decision maker.

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 HALLEX I-1-2-41 B), and

• the decision maker (see I-1-2-6).

Place a copy in the Regional Office or claim(s) file (or appeals file in OARO), 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 or fully 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, email the determination to the PC using the appropriate control mailbox in HALLEX I-1-2-96.