BASIC (03-95)

A. Introduction

The second step in the administrative review process is a preliminary examination of the claim file, including the fee request and the initial fee authorization. The purpose of this preliminary review is to:

• determine if more information is needed to make the administrative review decision; and

• identify issues, if any, which SSA did not resolve when it initially authorized the fee.

B. Procedure - General

Use the following examples as typical situations in which additional actions must be undertaken before acting on the request for administrative review.

1. More Than One Representative Involved in Claim

If the claimant discharged one representative and engaged another, the prior representative retains the right to request a fee.

EXAMPLE:

You are working on a request for administrative review and note a prior representative did not file a fee request. The file does not show that he/ she waived the right to a fee. Ask the representative to file either a fee waiver or a fee request.

If the prior representative files a fee request:

• Send the fee request to the office that authorized the fee being protested. (That office will process the second fee request.) Advise that office of the pending request for administrative review and ask them to send you a copy of the fee authorization.

• Do not conduct the administrative review until the time limit for requesting administrative review has expired on the second fee authorization.

2. SSA Authorized More Than One Fee

If there are multiple representatives involved in the claim, SSA authorized more than one fee, and one party filed a request for administrative review:

• review the services of all the representatives; and

• recognize that the services of the representatives are generally interrelated.

Do not, however:

• conduct an administrative review on any unprotested fee authorization; or

• consider modifying any fee except the one being protested.

3. Parties Did Not Receive Notice

1. If the claim file indicates that all parties did not receive a copy of the request for a fee, then:

   • send an interim letter similar to the one discussed in GN 03930.095B.4.;

   • delete the portion of that letter saying SSA will not work on the request for 20 days; and

   • provide the parties with the opportunity to comment. (See GN 03950.030B.2.)

2. If the claim file indicates that all parties did not receive a copy of the initial fee authorization, then:

   • send a copy of the initial fee authorization with the acknowledgment letter explaining that it appears SSA did not previously send a copy; and

   • provide the parties with the opportunity to comment. (See GN 03950.030B.2.)

C. Description of the Fee Request

GN 03930.020B.3. - 5. lists the information a representative must furnish to SSA in order to charge and collect a fee under the fee petition process. Review and evaluate the contents of the fee request as described in GN 03930.095 ff.

The information most frequently omitted, but essential to the evaluation of the services, is:

• the date the services ended; and

• the itemization of the representative's services.

If such information is missing or insufficient, contact the representative for clarification.

D. Procedure - Other Issues

1. Money Collected From Claimant as a Fee

If there is an indication that the representative charged, received, or collected money from the claimant, as a fee, in excess of the amount SSA authorized, then:

• ask the representative for more information about the disposition of the funds in the acknowledgment or interim letter (do not ask for a refund until the issue is resolved);

• resolve the issue in the administrative review decision;

• notify the representative that he/she must immediately refund to the claimant any funds collected as fees in excess of the amount SSA finally authorized; and

• notify the claimant that he/she should inform SSA if the representative does not refund the excess funds.

NOTE: Sometimes representatives collect their fees from previously established trust or escrow accounts and SSA does not learn about these accounts until after the claimant protests the payment of fees from these or other sources. (See SSA's policy on these accounts described in GN 03920.025.)

2. Past-due Benefits Not Withheld for Payment of Authorized Fee

If you receive a request for administrative review in a claim in which SSA did not withhold a portion of the claimant's past-due benefits for the attorney's fee or prematurely released the withheld benefits without certifying direct payment to the attorney, the attorney may also report that he/she has been unable to collect the authorized fee from the claimant.

In such a situation:

• use additional language concerning this situation when sending the acknowledgment letters to the attorney and the claimant. (See Model Acknowledgment Letters AF-2 and AF-3 at GN 03950.055B.);

• perform the administrative review;

• direct the benefit authorizer (BA) to certify direct payment of the fee decided on administrative review to the attorney (limited to the amount of the past-due benefits that should have been withheld); and

• ask the BA to establish an overpayment and initiate recovery.

NOTE: The Social Security Act and Black Lung Benefits Act require SSA to certify direct payment of an authorized fee to an attorney representative out of a portion of the claimant's title II or black lung past-due benefits. (See GN 03920.035.) Occasionally, SSA releases all of the past-due benefits without certifying direct payment of the attorney's authorized fee.

3. Past-Due Benefits Released After Initial Fee Authorization

1. Because SSA usually releases the remaining withheld past-due benefits to the claimant and auxiliary beneficiary(ies) after paying the attorney the initial authorized fee, you must add special instructions to the decision letter if you increase a fee on administrative review.

   EXCEPTION: SSA continues to withhold past-due benefits if there may be additional fees awarded by a Federal court under§206(b) of the Act.

2. In the situation described in a. above, tell the claimant, auxiliary beneficiary(ies), and the attorney in the decision letter that:

   • the increase in the fee is a matter for settlement between the parties; but

   • the attorney should contact SSA if he/she is unable to collect the authorized fee from the claimant or auxiliary beneficiary(ies). SSA will certify direct payment of the fee to the extent of the remaining withheld past-due benefits released after the initial fee payment.

3. If the attorney reports that he/she is unable to collect the authorized fee from the claimant:

   • direct the BA to certify direct payment of the increased fee to the attorney (subject to the above limitation); and

   • ask the BA to establish an overpayment and initiate recovery.

   EXCEPTION: Do not certify direct payment of the increased fee to the attorney if the request for administrative review was untimely filed (even if good cause was established).

4. Review of the Initial Fee Authorization

1. Examine the authorization to identify the factual elements (e.g., the time spent and services performed by the representative; the results achieved by the representative; and the level at which the representative entered the case), rationale, and conclusions reached.

   NOTE: SSA uses Form SSA-1178 (Evaluation of Fee Petition for Representation) to document the initial fee authorization and reflect how the fee authorizer arrived at the authorized fee.

2. Identify what issues, if any, pertinent to the representative's services, had a bearing on the conclusion and decide if these issues have been resolved fully.

3. Obtain further clarification from the parties if the factual elements critical to the authorization are based on assumptions not supported by evidence in the claim file.

EXAMPLE: The original fee adjudicator determined, based on the Form SSA-1560-U4, that a representative had provided 25 hours of services in prosecuting his client's Social Security claim. The claimant states in her request for administrative review that the representative could not have spent 25 hours on her case. A review of the SSA-1560-U4 reveals that the representative did not specify what services were performed during the 25 hours. The reviewer should obtain further clarification from the representative about the nature of the services he performed.