We have two processes for authorizing representatives' fees, both of which are available for new claims as well as post-entitlement or post-eligibility (PE) actions:

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  The fee agreement process described in GN 03940.000, and

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  The fee petition process described in GN 03930.000.

If the representative elects to use the fee agreement process, the claimant or the representative(s) must submit the agreement to us before the date we make the first favorable determination or decision (hereinafter, we generally refer to both as a "decision") after the representative became involved in the claim or PE action. Refer to GN 03940.001B to determine the date of the favorable decision. Refer to GN 03940.003B.5. for examples of PE actions for which we cannot approve a fee agreement.

The fee agreement decision maker will approve or disapprove the fee agreement (see GN 03940.002 for the definition of “decision maker”). The decision maker will not approve the fee agreement unless it meets the statutory conditions defined in GN 03940.003B and the exceptions listed in GN 03940.003D. do not apply.

If the claimant or representative does not timely submit a fee agreement we assume the representative will either file a fee petition or waive a fee. See GN 03920.020 for policies and procedures on fee waiver.

The two fee authorization processes are not interchangeable. However, if a representative elects the fee agreement process but we do not approve the agreement the representative must file a fee petition if they want to charge and collect a fee.

If a fee agreement is approved in connection with a favorable decision, but the favorable decision is later vacated, the approval of the fee agreement and any authorization of fees under the fee agreement are also vacated because there is no favorable decision. If, on appeal, a decision maker issues a new or revised favorable decision, the decision maker will also make a new determination to approve or disapprove the fee agreement.

Because fee agreements apply only to cases in which we issue the favorable decision, fee agreements do not apply to cases in which a Federal court directly issues the favorable decision (sometimes called "true court cases"). However, a fee agreement can apply to a favorable decision we make after a Federal court remands the case to the agency for further administrative proceedings. We may authorize a fee for services provided before the agency, and the court may authorize a fee for services provided before the court. See GN 03920.060 for specific information regarding attorneys' fees for representation in proceedings before a court and for information regarding dual fee authorization.

The date we make a favorable decision is the date shown on the award notice or on the notice of a favorable decision depending on the administrative level of the favorable decision. It is not necessarily the date of adjudication or effectuation (see GN 03920.030D., Policy – Month of Effectuation).

A fee agreement is a written statement signed by the claimant and the representative specifying the fee the representative expects to charge and collect and the claimant expects to pay, for the representative's services in pursuing the claimant's rights before us. GN 03920.005C. defines "proceedings before SSA." Although the fee agreement must be a written statement, there is no requirement to use our prescribed form. Therefore, representatives may craft their own fee agreements and decision makers will approve agreements if the statutory conditions of the fee agreement provisions are met and no exceptions apply (see GN 03940.003 for fee agreement evaluation policy).

The representative or claimant may submit the original fee agreement or a photocopy of the original document in person, by mail, or fax.

Representatives may also use Form SSA-1693 (Fee Agreement for Representation before the Social Security Administration) to record their agreement with the claimant. The electronic version of Form SSA-1693 (e1693) is available at www.ssa.gov/representation.

The fee agreement:

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  May be submitted with the Form SSA-1696 (Claimant's Appointment of a Representative), and must be signed by both the claimant and all representatives who did not waive their fee.

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  Remains in effect throughout the administrative appeals process of a claim(s) and during the administrative proceedings following a Federal court remand.

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  May contain a provision that limits its application to services through a specific level of the administrative appeals process (e.g., “this agreement remains in effect only through the initial Administrative Law Judge decision.”  This is known as a “two-tiered” fee agreement, see GN 03940.005).

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  May contain language that would apply if the Commissioner increases the fee agreement cap after the date of the agreement.

  NOTE: See GN 03970.010B.3.e., NOTE, for information about a representative’s obligation to inform a claimant about the maximum fee cap and that the maximum fee may increase before we make a favorable decision on the claim.

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  May be amended or revised, before the date of the favorable decision, to comply with the requirements of the fee agreement process, to revise a provision in the agreement (e.g., the maximum fee), or for another reason. The decision maker will act on the latest fee agreement received prior to the date of the favorable decision.

Because a fee agreement is between the representative and the claimant, each agreement is unique, may appear in any form, and may include provisions in addition to the fee (e.g., interest on an unpaid balance of an authorized fee, establishing a trust or escrow account, or payment of out-of-pocket expenses for medical reports).

The decision maker's determination on a fee agreement is limited to whether the agreement meets the statutory conditions of the Act and is not otherwise excepted. When issuing a fully or partially favorable decision that will result in past-due benefits, the decision maker applies the criteria in GN 03940.003 to approve or disapprove a fee agreement. Such approval is conditioned on there being past-due benefits at the time of effectuation (see GN 03940.003B.5).

In concurrent Titles II and XVI claims, where the representative is appointed for both claims, the Title II decision maker makes the fee determination for both titles. The decision maker considers the first favorable decision or award notice date as controlling for both titles and cannot approve a fee agreement under one title and disapprove it under the other title.

EXAMPLE: The Title II decision maker disapproves the fee agreement because it was not submitted before we made a favorable decision on the Title II claim. Although we have not issued the notice of favorable decision under Title XVI, the decision maker also disapproves the fee agreement under that title. The representative would then need to submit a fee petition to us to charge and collect a fee.

At the initial and reconsideration levels, the decision maker may use a Form SSA-553 (Special Determination) or an equivalent using the sample language provided in GN 03905.065B.1. to record the fee agreement determination. The equivalent for Title II in the Modernized Claim System (MCS) is the Report of Contact (RPOC) screen and the equivalent for Title XVI is the Report of Contact (ROC). (See GN 03905.065B.1.for a sample Form SSA-553; MS 03508.007 for the RPOC screen; and MS 08122.010 for the ROC.)

If the decision on the claim is unfavorable (in concurrent Titles II and XVI claims, this means both decisions are unfavorable), the decision maker does not make a determination on the fee agreement and will not provide notice about the fee agreement.

Subsections 206(a)(2), 206(a)(3) and 1631(d)(2) of the Act establish administrative review for fee agreement determinations. Under the fee agreement process, administrative review may involve either or both of the following issues:

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  The approval or disapproval of the fee agreement; and

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  The amount of the fee authorized under the terms of the agreement.

Claimants or representatives who disagree with our determination approving or disapproving a fee agreement may protest that determination by requesting administrative review. Claimants, affected auxiliary beneficiaries or eligible spouses, representatives, or decision makers who disagree with our fee determination (i.e, the amount of fee authorized) may protest that determination by requesting administrative review.

A decision maker who approved a fee agreement may request a review of the fee amount only when they determine that the record likely shows that either:

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  The representative failed to represent the claimant's interest adequately; or

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  The fee is clearly excessive considering the services the representative provided.

GN 03960.000 provides policy and procedures for administrative review under the fee agreement process.

We cannot authorize a fee under the fee agreement process if the fee agreement does not meet the statutory requirements of the Act (GN 03940.003B), or if an exception to the fee agreement process applies (GN 03940.003D). If a decision maker incorrectly approves a fee agreement follow instructions in GN 03940.020G. and GN 03940.025B.5. to refer the erroneous approval to the designated reviewer (see GN 03960.001D.13.). The reviewer will rescind the prior fee approval and disapprove the fee agreement, notify the claimant and representative of the disapproval and of their right to request administrative review of the disapproval, and advise the claimant and the representative that if the representative intends to charge and collect a fee for their services in the case, the representative must file a fee petition.