The reviewer must consider certain factors when assessing whether the fee authorized under the fee agreement process is reasonable and when deciding whether to modify a fee and, if so, to what extent. These factors are modeled on the factors used in the fee petition process (see GN 03930.010 and GN 03930.105). The factors are:

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  The expectations of the parties, as expressed in the written agreement filed with us.

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  For Title XVI cases, the purpose of the Supplemental Security Income program, i.e., to assure a minimum level of income for recipients who otherwise do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. GN 03930.105A. discusses this factor.

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  For Title II cases, the purpose of the program, i.e., to provide a measure of economic security for program beneficiaries. GN 03930.105B. discusses this factor.

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  The type and extent of services the representative provided. GN 03930.105B.1. discusses this factor.

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  The complexity of the case based on the work or documentation needed to resolve the issues. GN 03930.105B.2. discusses this factor.

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  The level of skill and competence required of the representative in providing the services. GN 03930.105B.3. discusses this factor.

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  The amount of time the representative spent on the case. GN 03930.105B.4. discusses this factor.

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  The results the representative achieved. GN 03930.105B.5. discusses this factor.

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  The level(s) in the administrative review process (1) at which the representation began and (2) to which the representative took the claim. GN 03930.105B.6. discusses this factor.

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  The amount the representative requested for their services, including any amount authorized or requested before, but not including, the amount of any expenses incurred. GN 03930.105B.7. discusses this factor.

The factors the reviewer considers are qualitative as well as quantitative. Therefore, the reviewer uses all the factors to determine whether the fee is reasonable.

The reviewer must affirm the fee amount if they find that the fee initially authorized under the fee agreement process is reasonable for the services provided.

The reviewer must modify the fee to the correct amount if GN 03960.040C.2.d., GN 03960.045D., or GN 03960.047D. apply and the reviewer finds that the corrected fee resulting from the agreement is reasonable for the services provided.

EXAMPLE:

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  The fee initially authorized under the fee agreement process is $3,490. The claimant timely requests that we lower the representative's fee. The reviewer concludes, after considering the factors in GN 03960.050C.1., that a reasonable fee for the case would be $3,490. There has been no change in the amount of the past-due benefits or past-due benefits payable. The reviewer affirms the fee amount.

The reviewer must modify the fee if they find that the fee authorized under the fee agreement process is not reasonable for the services provided. They must authorize a reasonable fee based on evaluation of the factors listed in GN 03960.050C.1. (See also GN 03960.050C.5. in concurrent Titles II and XVI cases.)

EXAMPLES:

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  The fee authorized under the fee agreement process is $4,000. The claimant timely requests that we lower the representative's fee. The reviewer concludes that a reasonable fee for the representative's services, based on their evaluation of the factors listed in GN 03960.050C.1., is $2,500. The reviewer must decrease the amount of the fee to $2,500.

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  The fee initially authorized under the fee agreement process is $4,000. The claimant timely requests administrative review, stating that the fee agreement calls for a fee of the lesser of $4,000 or 25 percent of their past-due benefits and that 25 percent of their past-due benefits is $2,250. We had revised our determination of the past-due benefits payable per GN 03920.040B. The reduction occurred immediately after release of the notice of the amount of the fee. The reviewer proposes to modify the fee to $2,250. The representative responds to the notice, stating that $2,250 is an entirely reasonable fee for their services. Because the parties did not object, the reviewer modifies the initially authorized fee to $2,250, as provided in GN 03960.045D.

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  The fee authorized under the fee agreement process is $3,500. The representative timely requests that we increase the amount of the fee to $5,500. The reviewer concludes that a reasonable fee for the case would be $4,500 based on their evaluation of the various factors contained in GN 03960.050C.1. The reviewer will revise the authorized fee to $4,500.

To evaluate how an auxiliary beneficiary is affected the reviewer follows GN 03960.043 and considers:

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  The total amount of the fee, based on the past-due benefits of the primary claimant and any auxiliary beneficiary; and

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  The services the representative provided the claimant and any auxiliary beneficiary.

1. a. 

   When evaluating concurrent Titles II and XVI cases and the following circumstances apply, we adhere to the policy that we will determine a reasonable fee for the services provided in connection with both programs.

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     The concurrent Titles II and XVI claims or post-entitlement/post-eligibility (PE) actions involved a common substantive issue, e.g., disability.

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     Although some services may have been unique to the Title II or XVI claim or PE action, most of the representative's services focused on resolving the common issue. The representative did not perform two sets of services different in most respects.

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     The services the representative provided led to favorable determinations or decisions for both claims.

2. b. 

   The reviewer follows GN 03960.043 and considers the total amount of the fee based on the past-due benefits resulting from both the Titles II and XVI claims. For fee purposes, calculate the Title XVI past-due benefits in concurrent cases as if the Title II benefits were paid timely (GN 03920.031B.2).

For concurrent Titles II and XVI cases:

1. a. 

   Examine the claim(s) file to:

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     Identify the common substantive issues involved in the concurrent Titles II and XVI cases;

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     Identify whether the representative's services led to favorable determinations or decisions in both programs; and

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     Confirm that the claimant and the representative have received both notices, conveying the total amount of the fee based on the past-due benefits resulting from the Titles II and XVI claims.

2. b. 

   Follow GN 03960.043B, if necessary.

Ask the representative to submit a written explanation detailing their services and the amount of time spent on the case if you expect to consider the representative’s services in the case based on a request filed by the:

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  Claimant, an auxiliary beneficiary, eligible spouse, or the decision maker; or

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  Representative who has not provided the information.

Ask the representative to provide the detailed explanation and send copies to both the claimant and the decision maker as early in the review process as possible. Obtain this explanation when:

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  Acknowledging a representative's request for administrative review; or

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  Notifying the representative of a request filed by the claimant, an affected auxiliary beneficiary, eligible spouse, or the decision maker.

Send the explanation to the other parties, and give them the opportunity to submit written comments within 15 days, if:

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  The representative did not provide a copy to the claimant and the decision maker; or

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  An affected auxiliary beneficiary or eligible spouse does not reside with the claimant.