Citations:

Social Security Act, Sections 206 and 1631(d)(2), as amended; Section 413(b) of the Federal Mine Safety and Health Act;

20 CFR sections 404.1700 - 404.1715 and 416.1500 - 416.1515.

TN 7 (01-06)

A claimant may appoint a qualified individual to act on his/her behalf in matters before the Social Security Administration (SSA). To ensure that claimants are aware of their right to representation before SSA, the Social Security Act (the Act) and regulations require that SSA notify any claimant who receives an adverse determination from SSA, and who is not already represented by an attorney, of options for obtaining legal representation.

The Act and regulations further provide that SSA must authorize any fee payable for services performed by an appointed representative before SSA. There are two alternative, mutually exclusive processes by which a representative may seek SSA's authorization for any fee he/she wants to charge and collect:

• the fee petition process, under which SSA authorizes a reasonable fee for services based on a representative's request submitted after the representative has completed his/her services before SSA; and

• the fee agreement process, under which SSA authorizes a fee based on a fee agreement between the claimant and the representative. Assuming that specified conditions are met, an SSA decision maker approves the agreement at the time of the favorable determination or decision. SSA then authorizes a fee based on the approved agreement in the course of effectuating the favorable determination or decision.

If the representative is an attorney or a non-attorney who is eligible for direct payment, the fee SSA authorizes under either process is certified for direct payment or paid to the representative from withheld title II and/or title XVI past-due benefits, up to a maximum of 25 percent of such benefits. Refer to GN 03920.017, Payment of Representative's Fee, for policy on when SSA makes direct fee payment. Refer to GN 03920.030, Representative's Fee - Title II Past-Due Benefits, and GN 03920.031, Representative's Fee - Title XVI Past-Due Benefits, for policy on calculating past-due benefits.

This subchapter describes policy and procedure concerning the qualifications and authority of a representative, SSA's role in advising claimants regarding representation, and appointment of a representative. Subchapter GN 03920.000 describes features that are common to processing fee authorizations and certifying or making direct payment under both the fee petition and fee agreement processes. Subchapters GN 03930.000 and GN 03940.000 describe policies and procedures specific to the fee petition and fee agreement processes, respectively.

Fees a representative charges for representing a claimant in a Social Security or Supplemental Security Income claim before a Federal court are not subject to authorization by SSA. However, pursuant to the Act, a Federal court that renders a judgment favorable to the claimant may award a fee not exceeding 25 percent of title II or title XVI past-due benefits to an attorney representative, and SSA withholds and certifies or makes direct payment of all or part of the fee awarded by the Federal court. GN 03920.060, Attorney’s Fees for Representation in Proceedings Before a Court, contains instructions on withholding and direct payment in Federal court cases.

The claimant or the representative may request administrative review of a determination SSA makes under the fee petition or fee agreement process. In the fee agreement process, the decision maker who approved the agreement also may request administrative review of the amount of the authorized fee under certain circumstances. Because SSA may make determinations on two issues in the fee agreement process - (1) to approve or disapprove the fee agreement, and (2) the amount of the fee under an approved fee agreement - the fee agreement process provides for administrative review of either or, if applicable, both of these issues. Subchapter GN 03950.000 describes administrative review under the fee petition process, and subchapter GN 03960.000 describes administrative review under the fee agreement process.