GN 03950.035 Completing Administrative Review Under the Fee Petition Process (Step Four)
A. Policy - Completing the Administrative Review
After receipt of any additional information or comments in response to the acknowledgement/interim letters, and following resolution of any issue(s) that may have been identified in the first two steps of the administrative review process, the reviewer must review the initial fee authorization. He or She will decide whether to modify that authorization in light of all the information in file. If the reviewer decides that the authorization must be modified, he or she will re-evaluate the services of the representative using the evaluation criteria in GN 03930.010 and GN 03930.105. If the fee authorization is modified, the amount of the fee may be increased or decreased.
1. When to Modify an Initial Fee Authorization
The purpose of an administrative review is to decide whether the protested fee was based upon:
SSA ordinarily modifies (i.e., increases or decreases) the initial fee if:
SSA will not modify the initial fee authorization:
2. Modification Based on Error of Fact
SSA modifies the initial fee authorization when one or more findings, which are material to the initial fee authorization, are clearly erroneous. It is immaterial whether the finding of fact was clearly erroneous at the time of the initial fee authorization. It is only necessary that, in light of all information available at the time of administrative review, there is no doubt that a finding of fact was in error.
3. Modification Based on Error of Law
SSA modifies the initial fee authorization when one or more findings of fact material to the initial fee authorization, conclusions drawn from the facts, or the fee authorization itself are clearly contrary to provisions of the Act or regulations.
4. Modification Based On New Information
SSA modifies the initial fee based on “new information,” if such information submitted to the reviewer is material to the authorization.
1. Completing the Administrative Review
Complete the review now that you have:
decided that a proper party has requested administrative review;
decided that the requester, if he or she filed late, has shown good cause;
given the other party(ies) the opportunity to respond to the request for administrative review;
received any additional information or comments in response to the acknowledgment/interim letters; and
resolved any issues identified in the first two steps of the administrative review process.
2. Whether to Modify
Do not modify the initial fee authorization solely because one of the parties has protested, nor merely to substitute your judgment for the judgment of the original adjudicator. Modify the initial fee to determine whether the protested fee authorization was based on complete and accurate knowledge of the facts, and proper application of the Act and regulations.
Modify the initial fee authorization if:
NOTE: Although modifying the initial fee authorization usually means increasing or decreasing the fee, an error or new information may call for a different rationale in support of the determination, but the ultimate conclusion (amount of the fee) remains unchanged. In such cases, the modified determination will address the error or new information in the new rationale when affirming the fee amount.
If none of the factors in b. are present, affirm the initial fee authorization without change.
Examples of factors that warrant modifying a fee follow.
1. Error of Fact
The following are two examples of error of fact:
The original fee adjudicator determined that the representative had provided 18 hours of services in prosecuting his client's Social Security claim. In the course of administrative review, the reviewer found that 6 of these 18 hours were spent on the client's workers' compensation claim. These hours cannot be considered services before SSA. The original fee adjudicator's finding, which included 18 hours instead of 12 hours of services in the fee authorization, was clearly an error of fact.
The original fee adjudicator found that a consultative medical report, obtained by SSA, constituted the basis for the allowance of a claimant's disability claim. However, the reviewer found the allowance was actually based on a medical report the representative submitted. The original adjudicator's finding of fact was clearly in error.
2. Error of Law or Regulation
The following are three examples of error of law or regulation:
In evaluating the services performed by the representative, the original fee adjudicator included services performed before a State court in attempting to establish the paternity of a child claimant. By regulation, services performed before a State or Federal court are excluded from the definition of services before SSA. Including such services as a basis for the fee authorization is contrary to the regulations and, therefore, clearly erroneous.
Two representatives were appointed as the claimant's representatives (co-counsels). The original fee adjudicator presumed the fee petition filed by one representative included the services performed by both representatives. He concluded the fee petition was filed on behalf of both representatives, authorized the amount of the fee for both representatives, and authorized payment of this amount to the representative who filed the petition. By regulation, SSA can recognize only individuals as appointed representatives. When co-counsels have been appointed and each provided services, SSA must authorize an individual fee for each representative. Authorizing one fee for both representatives is contrary to the regulations and, therefore, clearly erroneous.
The claimant and his representative had agreed in writing that the representative's fee would be 25 percent of the claimant's past-due benefits. The document was not submitted to SSA as a fee agreement (it did not contain a provision for a $4,000 maximum fee). SSA determined that the claimant's past-due benefits amount was $200. The original fee adjudicator felt constrained to authorize a fee of no more than the amount agreed to by the parties; i.e., 25 percent of past-due benefits. He authorized a fee of $50. The Act directs the Secretary to set a reasonable fee for services provided. Using the above agreement as the sole reason to limit the amount of the fee is contrary to the Act and regulations and, therefore, clearly erroneous.
3. New Information
The following are two examples of new information:
On his petition for authorization of a fee, the representative itemized numerous contacts with the FO that required the expenditure of several hours. In his request for administrative review, the claimant alleged that the representative had done very little work on his claim. During administrative review, the reviewer contacted the claimant and the FO. She discovered that almost all the representative's contacts consisted of telephone calls or brief letters requesting status of the claim. She also discovered that the developmental work to perfect the claim was done either by the FO or by the claimant with the help of the FO. The reviewer contacted the representative, who did not furnish any additional information to rebut these facts. While this new information does not mean the representative's contacts with the FO were valueless, it clarifies the nature of those services and the effect they had on the eventual outcome. The reviewer may use this new information as the basis for modifying the initial fee authorization.
In response to the acknowledgment letter, a representative submits copies of his correspondence with the Department of Veterans Affairs and the Department of Defense, none of which were previously in the claim file. This correspondence establishes that it was the representative, not SSA, who had initiated contact with those sources and that such contacts later resulted in the submittal of hospital records which were crucial to a determination of disability. This new information clarifies the role of the representative in securing this evidence. The reviewer may use this new information as the basis for modifying the initial fee authorization.
D. Procedure - Modification of Initial Fee Authorization
If, based on the above initial assessment, you determine that the facts of record warrant modifying the fee, re-evaluate the services of the representative using the evaluation criteria in GN 03930.010 and GN 03930.105.