TN 3 (03-95)

A. Policy - Relationship to Appeals Process and Administrative Finality

When reviewing the amount of the fee under the terms of a properly approved agreement as described in GN 03960.040C., SSA assumes that the past-due benefits amount on which the fee is based was correctly calculated, absent cause to believe otherwise. (GN 03960.040C.2.a. explains when a reviewer will assume the calculation was correct.) SSA must consider, however, whether the requester has questioned or disagreed with the calculation of the amount of the fee, the amount of past-due benefits, or both. Sometimes the amount of past-due benefits may be the central or sole issue on administrative review.

When the requester has disagreed with the amount of past-due benefits on which the fee under the agreement is based, unless D. below applies, SSA must:

• adhere to the policy in GN 04040.001 or SI 04070.001E., or both in concurrent cases; and

• consider the request for administrative review as an appeal or as a request to reopen and revise the determination or decision about the amount of past-due benefits.

B. Policy - Determination not Revised

SSA may modify the amount of the fee only through the administrative review process, described in GN 03960.040, if the determination or decision about the amount of past-due benefits is not revised because:

• the past-due benefits amount on which the fee is based was correctly calculated; or

• the requester did not appeal timely, SSA has not found good cause, and reopening is barred under the rules pertaining to administrative finality.

EXAMPLE: The representative timely requested administrative review. She stated that SSA incorrectly calculated the past-due benefits amount and, therefore, the fee under the agreement. The reviewer referred her request, filed during the appeals period, to a Reconsideration Reviewer (RECONR) who subsequently issued a reconsideration determination affirming the initial determination of the past-due benefits. Upon return of the claim(s) file, the reviewer proceeded with administrative review following GN 03960.040C.4. and GN 03960.055B.7. The reviewer recognized that he will need to evaluate the representative's services. Therefore, he includes in the acknowledgment letter a request that the representative provide a detailed explanation of her services and the amount of time she spent on the case; and that she send a copy to both the claimant and the decision maker.

C. Procedure - Determination Revised

If the determination or decision about the amount of past-due benefits is revised on appeal or reopening, do not make a determination on administrative review based on the original request.

Instead:

• include the amount of the fee which results from the agreement in the notice of revised determination or decision about the amount of past-due benefits;

• notify the claimant, any affected auxiliary beneficiary(ies), the representative, and the decision maker of the amount of the fee; and

• advise the parties of the right to request administrative review of the amount of the fee within 15 days of receiving the notice.

D. Policy - Determination Already Revised

SSA may have increased or decreased the amount of past-due benefits or past-due benefits payable after notifying the claimant and the representative of the amount of the fee under the agreement, e.g., in amending an award or reducing benefits. As GN 03920.040 explains, such increases or decreases do not affect the amount of the representative's fee unless a proper party has timely requested administrative review. In that event, SSA uses the past-due benefits amount at the time of administrative review to derive the amount of the fee which results from the agreement. (GN 03920.040 also explains the effect of interim increases or decreases on withholding.)

EXCEPTION: In cases involving an approved fee agreement and offset based on unverified workers' compensation (WC) or public disability benefit (PDB) payments, the PC will normally delay calculating the past-due benefits amount and the amount of the representative's fee until after they have verified the WC or PDB amounts (See GN 03920.040 and GN 03940.036.) However, if the PC calculates the past-due benefits amount and the amount of the representative's fee under the fee agreement process using unverified WC or PDB amounts, it will recalculate the amount of the past-due benefits and recalculate the amount of the representative's fee based on the revised amount of past-due benefits.

E. References

FO interview with a dissatisfied claimant, See GN 03101.120.

Reopening and revising a title II determination or decision, GN 04001.001 ff.

Reopening and revising a title XVI determination or decision, SI 04070.001 ff.