TN 11 (07-04)

A. Introduction

A claimant may appoint an individual, attorney or non-attorney, to represent him/her in matters before SSA. A representative who wants to charge or collect a fee for services provided in any proceeding before SSA under the Social Security Act must first obtain SSA's authorization, except when the conditions described in GN 03920.010 are present.

The representative must use one of two mutually exclusive fee authorization processes: the fee petition process or the fee agreement process (i.e., SSA will authorize a fee(s) to a claimant's representative(s) under only one of the two fee processes).

This subchapter contains policies and general procedures that pertain to both the fee petition and the fee agreement processes. It discusses fees SSA authorizes for services provided at the administrative level, as well as additional fees a Federal court may authorize for services provided at the court level.

For a general overview of representation and representative's fees, see GN 03910.001. For policies and specific procedures that apply particularly to either the fee petition or the fee agreement process, see respectively, GN 03930.000 or GN 03940.000. For information and instructions about fee violations by representatives, see GN 03970.000.

B. Policy - Distinguishing Features

1. Fee Petition Process

After the representative's services in the case have ended, he/she may petition for a fee. Based on the petition, SSA approves a “reasonable” fee (under 206(a)(1) of the Act) for the specific services provided. In determining a reasonable fee, SSA considers criteria the regulations prescribe. See GN 03930.000 for detailed information on the fee petition process.

NOTE: If a representative submits a fee petition after SSA has approved a fee agreement and authorized a fee, SSA will process the fee petition as a request for administrative review of the amount of the authorized fee.

If a representative submits a fee petition after SSA has approved a fee agreement, but before SSA has authorized a fee, SSA will process the fee petition as a request for administrative review of the fee agreement approval.

If the representative does not submit the fee petition within the period for filing a timely request for administrative review, then the component or individual with the authority to make the administrative review determination must determine whether there was good cause for the late filing. (See GN 03960.000, Administrative Review of Determinations Under the Fee Agreement Process.)

2. Fee Agreement Process

Before SSA decides the claim, the representative or the claimant may file a fee agreement. SSA generally will approve (under 206(a)(2)(A) of the Act) an agreement signed by the claimant and the representative if the other statutory conditions are met and no exceptions apply. If SSA approves the fee agreement and no one requests administrative review (see GN 03960.000, Administrative Review of Determinations Under the Fee Agreement Process), the fee specified in the agreement is the maximum the representative may charge and collect. See GN 03940.000 for detailed information on the fee agreement process.

C. Policy - Selecting the Process

1. Choice

The representative generally selects which process to use.

2. Two-tiered Arrangement

The representative and the claimant may have agreed to a two-tiered arrangement under which the representative has selected:

• the fee agreement process, if SSA favorably decides the claim at a certain level; and

• the fee petition process, if the claim progresses beyond the level specified in the agreement.

EXAMPLE: The representative's fee agreement with his client states that its provision calling for a fee of no more than the lesser of 25 percent of past-due benefits or the specified dollar amount indicated in GN 03940.003B.3. will apply only if SSA favorably decides the claim before or with the first hearing decision an Administrative Law Judge issues. The fee agreement explains that if the claim proceeds beyond that, the representative intends to petition SSA to authorize a fee.

3. Presumption

Unless the representative files a fee agreement before the date we make the first favorable determination or decision the representative worked toward achieving, SSA presumes that he/she will either file a fee petition or waive a fee. The “date of the first favorable determination or decision” is defined as:

• Initial and reconsideration levels – the date on the notice of award, and

• Hearing and request for review levels – the date of the favorable decision.

4. Fee Petition Necessary

A representative must file a fee petition to obtain SSA's authorization if any of the following applies:

• The representative and the claimant have no written fee agreement.

• A reviewing official affirmed the decision maker's disapproval of a fee agreement.

• A reviewing official reversed the decision maker's approval of a fee agreement.

• The decision maker approved a fee agreement and SSA subsequently disapproved the fee agreement because no past-due benefits resulted from the favorable determination or decision at the administrative level. See GN 03930.005B.4. if a Federal court makes the final decision.