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

1. Authority to Conduct Administrative Review

The receiving component will determine who has the authority to act on the request for administrative review (see Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-2-44 C).

If the receiving component has the authority to conduct the administrative review, the reviewing official will proceed with development and review.

If the receiving component does not have the authority to conduct the administrative review, the receiving component must refer the request to the individual or component delegated with the authority to conduct the review by ensuring the date the request was received is documented and:

• If there is an associated eView or Electronic Non-Medical Application (ENM) record, the receiving component must upload the request to the B section of the claim(s) file, and email notification of the uploaded request to the component or individual delegated the authority to conduct the review. The email should specify if the claim file is in eView or ENM.

• If there is no associated eView or ENM record, the receiving component must scan the request, and email notification with the attached request to the component or individual delegated with the authority to conduct review.

• The receiving component will use a read receipt to confirm proper notification.

1. Reviewing Official Contact Information

In all cases favorably decided below the hearing level, responsibility for conducting administrative review is delegated to the Processing Center (PC) pursuant to the chart in Program Operations Manual System (POMS) GN 03960.005A. For cases decided favorably at the hearing or Appeals Council (AC) level, the authority to conduct administrative review of the fee amount authorized under the fee agreement process is determined based on the individual(s) requesting review of the fee amount. For more information, see HALLEX I-1-2-44 C. In most situations, email is the preferred contact method.

• If the request for administrative review involves a case that was decided below the hearing level, contact the PC using the appropriate control mailbox in HALLEX I-1-2-96.

• If the reviewing official is the Office of Hearings Operations decision maker (i.e., the administrative law judge (ALJ), Hearing Office Chief Administrative Law Judge (HOCALJ), or attorney advisor who issued the favorable decision), contact the hearing office or National Hearing Center. For office contact information, please see the OHO Fee Contacts directory.

• If the reviewing official is a Regional Chief Administrative Law Judge (RCALJ), the National Service Delivery Associate Chief ALJ (NSD ACALJ), or one of their designees, contact the appropriate OHO regional office or the NSD central office. See HALLEX I-1-2-100 or the OHO Fee Contacts directory for contact information.

• If the reviewing official is the Deputy Chief Administrative Law Judge, the Chief Administrative Law Judge, or one of their designees, contact the Office of the Chief Administrative Law Judge at ^OHO OCALJ Delayed Fee Agreement Protest.

• If the reviewing official is the Deputy Executive Director, Executive Director, or designee(s) in the Office of Appellate Operations (OAO), contact the Attorney Fee Branch at ^DCARO OAO ATTY FEE BR.

2. Review Parties, Pertinent Documents, and Timely Filing

If the reviewing official has authority to conduct the administrative review, the reviewing official should 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, (See POMS GN 03940.003B.2), any affected auxiliary, an eligible spouse under Title XVI, the representative(s), and the decision maker);

  NOTE:

  Refer to HALLEX I-1-2-41 B, NOTE for information about the limited circumstances when an entity's point of contact (POC) may file a request for review on behalf of a deceased representative.

• The fee agreement;

• The fee agreement approval;

• The determination of the fee amount;

• Evidence showing inadequate representation or a clearly excessive fee, OR evidence of fee calculation error; 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.

3. Criteria When the Decision Maker Requested Administrative Review

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

1. Decision Maker Review Criteria Met

If the evidence shows inadequate representation or a clearly excessive fee, the reviewing official should proceed with development or review.

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. However, an ALJ issued a fully favorable decision on the claim and approved the maximum amount of the current statutory fee cap based on the fee agreement. The reviewing official will proceed with conducting the administrative review, because the representative may not have provided adequate representation.

2. The claimant was unrepresented at the hearing. Two days before the ALJ issues a favorable decision on his case, the Social Security Administration (SSA) received a claimant's appointment of representative and fee agreement. The ALJ approved the fee agreement for 25 percent of past-due benefits, or $5,700. The reviewing official will proceed with conducting the administrative review on the $5,700 fee that resulted from the approved agreement, to determine if it was clearly excessive. It may be considered clearly excessive, if, for example, the file or information provided by the parties shows the representative only interviewed the claimant and submitted an appointment of representative and a fee agreement in connection with this claim.

1. Request Not Timely Filed

• If the requester, other than a decision maker (see NOTE below), did not provide a reason(s) for late filing (see HALLEX I-1-2-41 C), the reviewing official must obtain an explanation.

• The reviewing official may modify the letter acknowledging receipt of the request for administrative review, described in HALLEX I-1-2-46 C, below, to ask for additional information, including asking the requesting party to show good cause for a late filing.

• The reviewing official must ask for a response within 15 days and diary the case for 30 days. If the reviewing official does not receive an explanation at the end of 30 days, the reviewing official should proceed with additional development, if necessary, or send the letter described in HALLEX I-1-2-46 C.3, below.

2. Issues with Calculation of Fees

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 notice of the fee amount, the reviewing official must request the processing center (PC) or the field office (FO) for the following information:

• Completed form SSA-1129, “Representative Fee Case Past-due Benefit Summary,” in Title II cases;

• An 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.

3. Concurrent Titles II and XVI Claims Involved

The reviewing official must ascertain whether SSA has determined the total fee for all services under the fee agreement when the request involves concurrent Title II and Title XVI claims involving a common issue or one or more delayed affected auxiliaries. If SSA has not determined the total fee, the reviewing official will:

• Contact the effectuating component (see HALLEX I-1-2-44 D.2) and ask for an expeditious fee determination, with notice to all parties and to the reviewing official.

• Notify the parties when acknowledging receipt that review cannot be conducted until SSA determines the total fee.

• Diary the request for 30 days to obtain notice of the fee determination, unless the effectuating component indicates that outstanding development will require a longer diary period. If the reviewing official does not receive notice of the total fee at the end of the diary period, the reviewing official will send a written follow-up to the module manager in the PC or the office manager in the FO.

Example:

In a concurrent case favorably decided at the hearing level, the claimant timely requests administrative review of the Title II fee amount, which is less than statutory fee cap. However, the field office has not yet calculated the past-due benefits on the Title XVI claim. Hearing office staff contacts the field office and asks for action to set the Title XVI fee and to send the ALJ a copy of the fee notice. At the same time, the ALJ informs the claimant and representative in the notice acknowledging receipt of the request for administrative review that the ALJ will conduct the review after the field office determines the Title XVI fee. The hearing office then diaries the request for receipt of the Title XVI fee notice.

1. Timely Filed Request or Untimely Request with Good Cause Shown

The reviewing official will prepare a notice telling the requesting party that:

• We received the request;

• For untimely requests where good cause is found, a brief explanation of the good cause finding ;

• We are notifying the other parties of the request for administrative review and that they will be given the opportunity to comment or submit additional information; and,

• If appropriate, a statement that we will not conduct the review until SSA has determined the total fee under the fee agreement.

The reviewing official will 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, that review will not be conducted until SSA has determined the total fee under the fee agreement.

The reviewing official will enclose copies of the request for administrative review. Because of Privacy Act considerations, the reviewing official must not reveal any Privacy Act protected information (to include personally identifiable information) without applicable disclosure authority (e.g., consent, routine use, etc.) including:

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

• The auxiliary beneficiary's mailing address or SSN 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.

In these situations, the address and any other personal information must be completely blocked out before mailing.

The reviewing official must send the notices and enclosures and diary the case for 30 days.

2. Late Request without Good Cause or Request by Improper Party

If the request was not timely filed and the reviewing official did not find good cause for the late filing based on the explanation provided with the request for administrative review or during development (see HALLEX I-1-2-41 C), or the request was not filed by a proper party (e.g. it was filed by an entity or its point of contact when the limited circumstance described in HALLEX I-1-2-41 B do not apply), the reviewing official must prepare a notice telling the requester:

• The reason(s) for deciding that the requester did not show good cause or that the requester 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 and associate this letter with the claim(s) file.

Staff will use the appropriate notice template in FAcTS, HACPS, or OAOCPS.

1. Decision Maker's Approval Determination was Correct

The reviewing official will review the decision maker's fee agreement approval to determine if the approval was correct. See HALLEX I-1-2-43 E for evaluation considerations. If the decision maker's approval determination was correct, the reviewing official will proceed with determining the fee amount (see HALLEX I-1-2-47).

2. Decision Maker's Approval Determination Was Incorrect