GN 03960.001: Overview of Administrative Review Under the Fee Agreement Process

changes
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~~Effective Dates: 05/14/2010 - Present~~
Effective Dates: 04/06/2018 - Present
Citations:
Social Security Act §§206(a) and 1631(d)(2); and § 413(b) of the Federal Mine Safety and Health Act.
TN 3 (03-95)
GN 03960.001 Overview of Administrative Review Under the Fee Agreement Process
A. Introduction
This subchapter describes administrative review under the fee agreement process. (See also GN 03910.001 for a general overview of representation and representative's fees.)
B. Policy
When a claimant or representative disagrees with the Social Security Administration's (SSA's) determination disapproving a fee agreement, he/she may protest that determination by requesting an administrative review. When a claimant, affected auxiliary beneficiary, representative, or decision maker disagrees with SSA's fee determination, he/she may protest that determination by requesting an administrative review.
1. Issues on Review - Fee Agreement Process
Unlike administrative review under the fee petition process, administrative review under the fee agreement process in §206(a)(2) and (3) of the Social Security Act (the Act), as amended, may involve two distinct issues: the review of a determination disapproving the fee agreement; and the review of the amount of the fee determined under the fee agreement.
Therefore, in some instances, a party could file two requests for administrative review:
* the first when he/she received notice of the decision maker's disapproval of the fee agreement; and
* the second when SSA had reversed the disapproval of the fee agreement, authorized the amount of the fee under the agreement, and the party objects to the fee amount authorized.
2. Finality of Determination
Like the fee petition process, SSA's determination on administrative review under the fee agreement process is final and binding.
3. Other Differences
Administrative review under the fee agreement process also differs from administrative review under the fee petition process as follows:
* The party requesting administrative review must do so within 15 days of receiving the notice of the determination disapproving the fee agreement or authorizing the amount of the fee. (Under the fee petition process, the party requesting administrative review must do so within 30 days after the date of the notice of the fee authorization.)
* The decision maker (see D.4. below) may:
* request administrative review of the amount of the fee under the agreement;
* comment on another party's request for administrative review and, therefore, SSA must afford the decision maker the opportunity to do so; and
* conduct an administrative review requested by the claimant, an affected auxiliary beneficiary, or the representative, if SSA favorably decided the claim at the hearing or Appeals Council review level and the issue for review is the amount of the fee under the agreement.
EXAMPLE: The Administrative Law Judge (ALJ) who made the favorable hearing decision may conduct administrative review of the fee amount based on a request filed by the claimant.
C. Process
1. Steps or Stages
Whether the issue is the disapproval of the fee agreement or the amount of the fee, administrative review under the fee agreement process generally involves the same procedural steps and stages that GN 03950.001C. describes for administrative review under the fee petition process. These are:
* Acknowledging receipt.
* Notifying the processing center (PC) of the request in cases under title II of the Act involving an attorney representative, to prevent premature release of past-due benefits withheld for possible direct payment.
* Examining the request and the file to establish authority to conduct review and timely filing by a proper party.
* Informing the parties and providing them an opportunity to comment.
* Reviewing the initial determination.
* Notifying the requester and the parties of the determination on administrative review.
As under the fee petition process, these stages generally follow in sequence. However, sometimes SSA may not make a determination on administrative review, e.g., when an improper party requested review. Sometimes the stages can overlap, e.g., the reviewer acknowledges receipt; requests an explanation of good cause for late filing; and, at the same time, informs the other parties of the request for administrative review.
2. FO Responsibility
Field Offices (FOs) do not conduct administrative review under the fee agreement process. FO responsibilities in the process involve the following:
* Acknowledging receipt of, and routing, any requests for administrative review that the FO may receive (GN 03960.015).
* Providing information about title XVI cases, including the computation of the past-due benefits amount (GN 03960.043, GN 03960.045, and GN 03960.047).
* Taking postreview actions in title XVI cases (GN 03960.065).
* Responding to inquiries from claimants, auxiliary beneficiaries, and representatives.
However, a FO decision maker may request administrative review of the amount of the fee under an approved agreement (GN 03960.010B.2. and C.). The FO decision maker also may comment on another party's request if it concerns the fee amount.
D. Definitions
1. Affected Auxiliary Beneficiary
An affected auxiliary beneficiary is a beneficiary, in a life or death case, who has benefited from the representative's services to the claimant who appointed the representative. References to the “affected auxiliary beneficiary” as a party include any person authorized to act on the beneficiary's behalf, e.g., parent, legal guardian, or representative payee.
2. Attorney
An attorney is an individual in good standing who is admitted to practice law before a court of a State, Territory, District, or island possession of the United States or before the Supreme Court or a lower Federal court of the United States.
3. Claimant
A claimant is any individual whose asserted rights under titles II, XVI, or XVIII of the Act are, or may be, affected by an SSA determination or decision. As used throughout this subchapter, the term includes a beneficiary. References to the “claimant” as a party include any person authorized to act on the claimant's behalf, e.g., parent, legal guardian, or representative payee.
4. Decision Maker
The decision maker is the person who has responsibility for adjudicating the claim or post-entitlement or post-eligibility action at a given level of the administrative review process, e.g., claims representative (CR), claims authorizer (CA), ALJ, or Administrative Appeals Judge (AAJ).
5. Disapproval of the Fee Agreement
Disapproval of the fee agreement means that SSA will not use the agreement between the claimant and the representative to determine a fee under §206(a) of the Social Security Act.
6. Fee Agreement
A fee agreement is a written statement signed by the claimant and his /her appointed representative specifying the fee the representative expects to charge and collect, and the claimant expects to pay, for services the representative provides in pursuing the claimant's benefit rights in proceedings before SSA. A fee agreement submitted to SSA must be considered for approval under the fee agreement process throughout the administrative review process.
7. Notice of the Disapproval of the Fee Agreement
Notice of disapproval of the fee agreement or “disapproval notice” means:
a. Favorable Decision Below the Hearing Level
* In title II cases, the Notice of Award or postentitlement notice that SSA sends to the claimant, with a copy to the representative, explaining why the decision maker disapproved the fee agreement.
* In title XVI cases, the Fee Agreement Notice on Form SSA-L8165-U2 (SSI Important Information) that SSA sends to the claimant, with a copy to the representative, explaining why the decision maker disapproved the fee agreement.
b. Favorable Decision At or Above the Hearing Level - All Cases
* the Form HA-515-U6 (Order) that the ALJ, Regional Chief ALJ, Deputy Chief ALJ, or Chief ALJ sends to the claimant, with a copy to the representative, explaining why he/she disapproved the fee agreement; or
* the Form HA-517 (Order of the Appeals Council) that the AAJ, or Deputy Chair or Chair of the Appeals Council sends to the claimant, with a copy to the representative, explaining why he/she disapproved the fee agreement.
8. Notice of the Fee Determination
Notice of the fee determination means:
* In title II cases, the award or postentitlement notice stating the amount of the fee that SSA authorizes the representative to charge and collect under the fee agreement process.
* In title XVI cases, the Fee Agreement Notice on Form SSA-L8165-U2 (SSI Important Information), stating the amount of the fee that SSA authorizes the representative to charge and collect under the fee agreement process.
9. Non-requester
A non-requester is a person who is a party to the determination, but who did not request administrative review of the disapproval or the amount of the fee authorized under the fee agreement process.
10. Representative
A representative is an individual who meets the qualifications shown in GN 03910.020B.1. and 2., and whom the claimant appoints.
11. Requester
A requester is the person who requested administrative review of the disapproval or amount of the fee authorized under the fee agreement process.
12. Reviewer
A reviewer is the SSA reviewing official who has been delegated authority to conduct administrative review. “PC reviewer” refers to a non-Office of Hearings and Appeals (ODAR) reviewing official.
A reviewer is the SSA reviewing official who has been delegated authority to conduct administrative review. “PC reviewer” refers to a below hearing level reviewing official.

POMS Reference

GN 03960.001: Overview of Administrative Review Under the Fee Agreement Process