GN 03960: Administrative Review of Determinations Under the Fee Agreement Process

Effective Dates: 04/06/2018 - Present

TN 4 (07-97)

A. Policy - Review of a Disapproval of the Fee Agreement

SSA reviews a determination disapproving the fee agreement if the claimant or representative, including any co-representative or co-counsel who signed the agreement, files a written request with one of SSA's offices within 15 calendar days of receiving the disapproval notice. (See GN 03960.025 regarding late filing.) SSA will presume that the claimant or representative received the notice within 5 days of the date on the notice, unless shown otherwise.

EXCEPTION: In foreign cases, presume that he/she received notice within 14 days of the date on the notice.

B. Policy - Review of the Fee Amount

SSA reviews a determination of the amount of the fee under an approved fee agreement if:

the claimant, an affected auxiliary beneficiary, or the decision maker submits a timely request to reduce the fee; or
the representative submits a timely request to increase the fee. (This includes any co-representative or co-counsel who signed the agreement.)

1. Claimant, Auxiliary, or Representative Request

A claimant, affected auxiliary beneficiary, or representative may request administrative review for any reason.
A claimant, auxiliary beneficiary, or representative must file a written request at one of SSA's offices within 15 calendar days of receiving the notice of the fee determination. (See GN 03960.025 regarding late filing.)
SSA will presume that a claimant, auxiliary beneficiary, or representative received the notice within 5 days of the date on the notice, unless shown otherwise.

EXCEPTION: In foreign cases, presume that he/she received notice within 14 days of the date on the notice.
The fee agreement and fee petition processes are not interchangeable. If the decision maker approved the fee agreement and proper notice of the fee amount was sent, SSA will consider a Form SSA-1560-U4 (Petition to Obtain Approval of a Fee for Representing a Claimant Before the Social Security Administration), or other fee petition as a timely request for administrative review when it is:
- filed by a representative within the 15-day period for requesting administrative review; and
- requesting a fee amount greater than the amount of the fee authorized under the fee agreement process.

2. Decision Maker Request

The decision maker who made the favorable determination or decision may request reduction of the amount of the fee only when the evidence of record shows:
- the representative failed to represent the claimant's interest adequately; or
- the fee is clearly excessive in light of the services provided.
EXAMPLES:
- The claimant appointed a representative to pursue her claim and signed the fee agreement two months before the representative filed, on her behalf, a letter of intent to claim benefits. This delay resulted in a loss of two months' retroactive benefits. The CR who approved the fee agreement requested a reduction of the amount of the fee because the representative failed to represent the claimant's interest adequately.
- An ALJ found the claimant entitled to a period of disability and to disability insurance benefits after a hearing at which the claimant was unrepresented. Just before the hearing office issued the favorable decision, it received the claimant's appointment of representative and a fee agreement specifying a fee of the lesser of 25 percent of past-due benefits or $4,000. The ALJ approved the fee agreement because it met the statutory conditions and no exception applied. After reviewing a copy of the claimant's Notice of Award, however, the ALJ requested a reduction of the amount of the fee because the fee under the agreement was clearly excessive for meeting with the claimant, reviewing the initial and reconsidered decisions, and requesting a copy of the hearing cassette with the testimony.
- The claimant appointed a representative to pursue his claim after receiving an initial notice of denial. The representative and claimant signed and submitted a fee agreement to SSA. The Disability Determination Service (DDS) requested assistance from the representative in securing additional medical evidence and scheduling a consultative examination for his client. The representative refused to assist DDS, and instead indicated that he would present his client's case to an ALJ if the claim was denied on reconsideration. The DDS found the claimant to be under a disability and documented the responses of the representative. The CR approved the fee agreement when she adjudicated the claim, but requested a copy of the notice of the fee amount. Upon receipt of the notice, which authorized a fee of $4,000, the CR requested a reduction of the amount of the fee because the representative had failed to represent the claimant's interest adequately and the fee under the agreement was clearly excessive for the services provided.
ALJ and AAJ decision makers in OHO may receive copies of notices of fee determinations if requested. (See HALLEX I-1–2–45 . In title II cases, non-OHO decision makers choose whether to request a copy of the notice when adjudicating the claim. (GN 03940.015A.2.i. provides instructions.) In title XVI cases, non-OHO decision makers prepare and issue the notices of fee determinations.

Therefore, a decision maker must file a written request:
- within 15 calendar days of receiving his/her copy of the notice of the fee determination; or
- in title XVI cases, and in title II cases in which a below hearing level decision maker did not timely request a copy of the notice of the fee determination, within 15 calendar days of the date SSA presumes the claimant or auxiliary beneficiary received his/her notice.
  
  NOTE: As indicated in GN 03960.010C.1. below, the decision maker will not request administrative review of the fee amount until SSA has notified the claimant, affected auxiliary beneficiary(ies), and representative of the amount of the fee.
The controlling date for determining timely filing by a decision maker is the date of receipt of the request in the office responsible for conducting review, not the signature date. See GN 03960.025 regarding late filing.
Presume that a decision maker received his/her copy of the notice within 5 days of the date of the notice, unless shown otherwise.

EXAMPLES:
- The claimant's notice of award is dated December 5. The copy of the notice which the PC sent to the CR, at her request, bears the same date. The CR filed a written request for administrative review of the amount of the fee on December 27. Presumably the CR received her copy of the notice by December 10, and did not file a timely request. However, the CR's copy of the notice was date-stamped when received in the District Office on December 12. Therefore, the CR requested review timely.
- The CR filed a written request for administrative review of the amount of the fee on January 29. The CR had not requested a copy of the award notice when adjudicating the title II claim. Because the claimant's notice is dated January 7, SSA presumes the claimant received notice by January 12. The PC reviewer concludes that the CR did not file timely because he did not request administrative review by January 27.
- The PC received a CR's request for administrative review on February 12. The SSA-L8165-U2 fee agreement notice sent to the claimant is dated January 27. Presumably the claimant received the title XVI notice by February 1. The CR requested review timely, within 15 days of that date.
When a CA approves a fee agreement after a CR failed to act on the agreement in a District Office Final Authorization (DOFA) case (see GN 03940.020F.), the CR continues to be the “decision maker” in the case, as defined in GN 03940.001B.3. Therefore, only the CR may request administrative review of the amount of the fee as explained in GN 03960.010B.2.a., even though he or she did not act on the fee agreement. The CA may not request administrative review.

3. Direct Payment - Attorney Representative

If the claimant, an affected auxiliary beneficiary, the attorney representative, or the decision maker timely requests administrative review, SSA certifies the amount of the fee for direct payment to the attorney from title II past-due benefits withheld only when SSA has completed the review and notified the parties of its determination on review.

C. Procedure

1. Decision Maker Prepares Request for Review

If you are the decision maker and you believe one of the conditions in B.2.a. above applies, use the memorandum shown in GN 03960.090 to request administrative review of the amount of the fee under the fee agreement process. Prepare your request when you approve the fee agreement, as indicated below. Do not file it until SSA notifies the claimant and representative of the amount of the fee.

Type or print your name, title, and office in the “From” lines.
Explain why you believe the evidence shows that the representative did not represent the claimant's interest adequately, or that the fee is clearly excessive in light of the services provided.
Complete the remainder of the fill-ins, which are self-explanatory.

If your request is not timely, explain why (see GN 03960.025A.1.).

2. FO Decision Maker Files Request

File your request after SSA has notified the claimant and representative of the amount of the fee.

If SSA is withholding title II benefits for possible direct payment to an attorney representative, first call the PC module to prevent premature release of the amount withheld. (The PC takes the actions in GN 03960.020A.1.)
Send a copy of the memorandum you prepared following 1. above to the claimant or any affected auxiliary beneficiary(ies) or both, one to the representative, and one to the AFB (for reporting purposes).
Attach the original of your memorandum to the claim(s) file, if available. Forward to the PC module.

3. PC Decision Maker Files Request