TN 3 (03-95)
GN 03960.025 Late Filed Requests for Administrative Review Under the Fee Agreement Process
A. POLICY - LATE FILING
1. Late Filing by Decision Maker
If a decision maker does not request administrative review timely, SSA will not review the determination unless the decision maker submits, with the request, information that establishes good cause for late filing. (GN 03960.010B.2.b. and c. discusses the period within which the decision maker must file a request for administrative review, and B.2. below contains examples of good cause.)
When the decision maker does not establish good cause, SSA:
When the decision maker establishes good cause, SSA reviews its determination. SSA includes the good cause finding and explains its basis in the interim or final letter(s) to the parties.
2. Late Filing by Another
If a claimant, affected auxiliary beneficiary, or representative does not request administrative review timely, SSA will not review the determination unless the requester establishes good cause for late filing. (GN 03960.010A. and GN 03960.010B.1.b. and c. discuss the period within which the requester must file a request for administrative review and B.2. below contains examples of good cause.)
Before deciding the good cause question, the reviewer may give the other party or parties an opportunity to comment on the explanation given for late filing if the reviewer believes the other party or parties may have knowledge of the situation.
SSA defines “good cause” as any circumstance or event which prevents or impedes the efforts of a party from filing a request for administrative review within the required 15-day period.
Examples of such circumstances include:
serious illness or a physical or mental impairment which prevented a party from contacting SSA in person or in writing;
death or serious illness in a party's family;
destruction of material records by fire or other accidental cause;
receipt of incorrect or incomplete information furnished by SSA about the right to request administrative review;
failure to receive timely notice of the fee determination; and
good faith mistake of sending a request to another government agency within the 15-day period.
When the requester does not establish good cause, SSA sends:
written notice to the requester at his/her last known address explaining the reason(s) for deciding he/she did not show good cause, and that SSA will not conduct administrative review; and
a copy to the other party or parties.
NOTE: See GN 03960.085, AR-12 for an example of the above letter.
When the requester has established good cause, SSA reviews its determination. SSA includes the good cause finding and explains its basis in either the acknowledgment, interim, or final letter(s) to the parties.
3. Direct Payment
If SSA properly made direct payment of an attorney's fee, and the request for administrative review subsequently was filed untimely, SSA assumes no responsibility for payment of the increased fee amount on administrative review.
EXAMPLE: SSA notified the parties that 25 percent in past-due benefits were being withheld for potential attorney's fees (in this case $4,500), that the fee under the fee agreement process was $4,000, and that the parties had 15 days to request administrative review of the amount of the fee. Having received no protest, SSA certified direct payment of $4,000 to the attorney representative and released the remainder of the withheld benefits to the claimant and affected auxiliary beneficiaries. The representative subsequently filed an untimely request for administrative review of the amount of the fee. SSA found good cause for late filing and increased the authorized fee to $4,500 on administrative review. Later, the representative reported an inability to collect the increased fee ($500) and asked SSA to certify direct payment of this fee. SSA informed the representative that it assumed no responsibility for payment of the increased fee. The provision for creation of an overpayment on a claimant's record for payment of a fee is restricted to cases in which administrative error resulted in the release of withheld past-due benefits or a timely filed request for administrative review resulted in an increased fee.
B. PROCEDURE - LATE FILING
Follow the steps below when the request for administrative review is not filed timely.
1. Late Filing - No Explanation
If the requester, other than a decision maker, has not provided the reason(s) for late filing with his/her request for administrative review, ask the requester for an explanation by telephone, if possible. If you request an explanation by mail, include your request in the letter acknowledging receipt and diary the case for 30 days.
2. Late Filing - Explanation Included
If the requester provided the reason(s) for late filing with his/her request for administrative review, decide whether you can make the good cause determination without further contact with the parties.
If you decide the requester has established good cause for late filing, include your finding when acknowledging receipt of the request and informing the other parties of the request for administrative review.
If you decide the requester has not established good cause for late filing, explain the reason(s) for deciding he/she did not show good cause in a final notice with copies to the other parties.
If you must defer deciding whether the requester has good cause for late filing in order to obtain further input as noted in A.2.b. above, include your finding in an interim or the final letter(s).
The claimant stated that he did not request administrative review timely because he had been hospitalized for two weeks and did not receive the notice until he returned home. He also submitted a copy of a hospital record confirming his hospitalization during the time in question. You decide that the claimant has shown good cause; you include your finding in the letters acknowledging receipt and informing the other parties of the request.
The claimant requested administrative review on July 15. He stated that he filed the request timely because he received the notice, dated May 30, on June 30. You chose to defer making a good cause determination. You enclosed a copy of the claimant's explanation and request in the letter informing the representative of the request for administrative review. The representative responded with a copy of his office records showing that he had discussed the notice of the fee determination with the claimant, who indicated that he also had his notice, during a 15-minute phone call on June 5th. You then decide that the claimant has not shown good cause; you include your finding in the final letter to the parties.