Effective Dates: 12/09/2024 - Present

Identification Number:
GN 03960 TN 12
Intended Audience:See Transmittal Sheet
Originating Office:OARO OAO
Title:Administrative Review of Determinations Under the Fee Agreement Process
Type:POMS Full Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM

Part GN – General

Chapter 039 – Representation and Representative's Fee

Subchapter 60 – Administrative Review of Determinations Under the Fee Agreement Process

Transmittal No. 12, 12/09/2024

Audience

PSC: BA, CA, CS, DS, ICDS, IES, ILPDS, IPDS, ISRA, PETE, RECONR, SCPS, TSA, TST;
OCO-OEIO: BIES, CR, PETL, RECONR, RECOVR;
OCO-ODO: BTE, CR, CST, CTE, CTE TE, PETE, PETL, RCOVTA, RECOVR;
FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

OAO

Effective Date

Upon Receipt

Background

On July 16, 2021, the United States Court of Appeals for the First Circuit issued a decision in Marasco & Nesselbush, LLP v. Collins, instructing the Social Security Administration (SSA) to find a reasonably reliable means for law firms or other entities to receive direct payment of the fees the agency authorizes to their salaried employees. On August 21, 2024, SSA published a Final Rule entitled Changes to the Administrative Rules for Claimant Representation and Provisions for Direct Payment to Entities (89 FR 67542). This Final Rule establishes a new agency framework for ensuring that law firms and other entities can receive direct payment of the fees SSA authorizes to individual representatives who are their salaried employees. The Final Rule also provides for implementation in two phases: Phase 1 became effective on September 30, 2024, and Phase 2 will go into effect on December 9, 2024. These updates are in preparation for Phase 2 implementation.

We prepared several POMS for consistency with the framework announced in the Final Rule and updated regulations. The regulations provide updated definitions, update requirements for appointing a representative and for representative and entity registration, and establish a process for representatives to assign direct payment of fees to entities. In order to implement the new assignment process, which allows representative’s whose appointment terminates before SSA’s favorable determination or decision to receive and assign direct payment of any authorized fee, we have revised fee agreement evaluation policy to allow a withdrawn, revoked, and deceased representative to remain a party to an approved fee agreement in certain situations. We also revised policy for administrative review under the fee agreement process to allow an entity’s point of contact (POC) to request review in certain circumstances when a representative who validly assigned direct payment of their fee dies. The changes to subchapter GN 03940 implement these regulatory changes and provide guidance that aligns with the changes.

In addition, we revised several sections to clarify that parties may also request administrative review of an initial determination approving the fee agreement, consistent with the Social Security Act, the regulations (20 CFR 404.1720(d) and 416.1520(d)), and other subregulatory policy. We also updated and clarified processing instructions to ensure that a request for review is properly forwarded to the component with jurisdiction to consider the request, and to remove unnecessary instructions to send all requests to the Office of Appellate Operation’s (OAO) Attorney Fee Branch (AFB).

This is the second part of a larger, two part package.

Summary of Changes

GN 03960.055 PC Reviewer Responsibilities - Beginning Administrative Review of the Fee Authorized Under the Fee Agreement Process

We updated language throughout to enhance clarity, improve accuracy, and ensure consistency with post-Marasco regulatory changes as well as other law and policy concerning administrative review of fee agreement determinations. We also made minor changes throughout to remove gendered language.

GN 03960.057 Procession Center Reviewer Responsibilities - Completing Administrative Review of the Fee Authorized Under the Fee Agreement Process

We revised the section title to spell out “Processing Center.” We updated language throughout to enhance clarity, improve accuracy, and ensure consistency with post-Marasco regulatory changes as well as other law and policy concerning administrative review of fee agreement determinations. In subsection B.3.g, we added a note explaining the different ways staff should treat any previously authorized and paid fee when the authorization is revised during administrative review. We also made minor changes throughout to remove gendered language.

GN 03960.060 Post-Review Actions Under the Fee Agreement Process - Title II

We updated subsection titles as necessary for clarity and accuracy. We updated language throughout to enhance clarity, improve accuracy, and ensure consistency with post-Marasco regulatory changes as well as other law and policy concerning administrative review of fee agreement determinations. In subsections B.4 and D.3, we added notes explaining the different ways staff should treat any previously authorized and paid fee when the authorization is revised during administrative review. We also made minor changes throughout to remove gendered language.

GN 03960.065 Post-Review Actions Under the Fee Agreement Process - Title XVI

We updated subsection titles as necessary for clarity and accuracy. We updated language throughout to enhance clarity, improve accuracy, and ensure consistency with post-Marasco regulatory changes as well as other law and policy concerning administrative review of fee agreement determinations. In subsection A.2.b, we added a note explaining the different ways staff should treat any previously authorized and paid fee when the authorization is revised during administrative review. We also made minor changes throughout to remove gendered language.

GN 03960.055 Processing Center Reviewer Responsibilities - Beginning Administrative Review of the Fee Authorized Under the Fee Agreement Process

A. Introduction

After any necessary preliminary actions in GN 03960.015 are complete and you received the request for review, begin administrative review.

Follow the instructions in subchapter GN 03950.000 when we authorized a fee under the fee petition process in GN 03950.001.

B. Procedure

If we authorized a fee under the fee agreement process, follow the steps below when reviewing a determination made about the fee authorized under the agreement.

1. Establish Authority to Review

Confirm that you have authority to act on the request for administrative review. See GN 03960.005 for jurisdiction.

  • •

    If you do not have authority, follow the instructions in GN 03960.015B to refer the request to the correct office. Do not proceed furhter in this section.

  • •

    If you do have authority, obtain the claim(s) file, if needed, or ensure you have access to the electronic record.

2. Examine the Claim(s) File and the Request

  1. a. 

    Examine the claim(s) file and the request for administrative review. Identify:

    • •

      All parties;

    • •

      The fee agreement;

    • •

      The SSA-553(Special Determination), or another document listed in GN 03960.001A.7, documenting the determination;

    • •

      The notice of the fee determination;

    • •

      Any funds the representative may hold in a trust or escrow account;

    • •

      Any failure to withhold, or premature release of, past-due benefits; and

    • •

      Whether the case involves concurrent Titles II and XVI claims or affected auxiliary beneficiaries (see GN 03960.043.).

  2. b. 

    Screen the request for administrative review for:

    • •

      Timely filing;

    • •

      Filing by a proper party; and

    • •

      The need for action on any other issue(s) the requester raised.

  3. c. 

    Initiate any necessary development by telephone, after confirming the identity of the speaker, or include your request for additional information in the acknowledgment letter. Ask for a response within 15 days and diary the case for 30 days.

  4. d. 

    Proceed to GN 03960.055B.3 or GN 03960.055B.4.

NOTE: An entity is not a party to a fee agreement even where a representative validly assigned direct payment of a fee to that entity. As such, the entity and its POC generally do not have the right to file for administrative review and only the assigning representative has the right to request administrative review. However, if a representative who has validly assigned direct payment of any authorized fees dies, and at least one other representative seeking a fee remains active on the claim (see GN 03940.003D6), or the representative died after the agreement was approved and an initial fee was authorized, the entity’s POC may request administrative review under the fee agreement process. For more information about the assignment of direct payment fees, including the roles and responsibilities of POCs, see GN 03920.021.

3. Act on Late Filing with No Good Cause or Filing by Improper Party

  1. a. 

    If any of the following situtaions apply, proceed to GN 03960.055B.3.b.

    • •

      A decision maker did not file timely, and you do not find good cause for late filing based on information the decision maker submitted with the request for administrative review.

    • •

      A claimant, auxiliary beneficiary, eligible spouse, or representative did not file timely, and you do not find good cause for late filing based on the explanation given. See GN 03960.025B.2 for examples of good cause.

    • •

      An improper party requested administrative review.

  2. b. 

    Follow GN 03960.070 to prepare the letter described below. Refer to GN 03960.085 for model letters.

  3. c. 

    Send a letter telling the requester:

    • •

      The reason(s) for deciding that the requester did not establish good cause, or that the requester is not a proper party;

    • •

      You will not review the determination; and

    • •

      The previous determination of the amount the representative may charge for the representative's work in the case is final.

  4. d. 

    Send copies to the other parties. Because of Privacy Act considerations, ensure that the mailing address of the claimant, any auxiliary beneficiary, or eligible spouse is redacted from the copy of the notice sent to any other party (the proper parties described in GN 03960.001B.10) except the representative(s).

  5. e. 

    Do not proceed with administrative review.

4. Consider the Approval of the Fee Agreement

  1. a. 

    If disapproval of the fee agreement has been addressed previously on a request for administrative review, proceed to GN 03960.055B.5 .

  2. b. 

    Otherwise, consider whether the decision maker's approval of the agreement was correct, following GN 03960.040C.1.

    • •

      If not, prepare a brief explanation of why you plan to disapprove the fee agreement and note that if you do so, the representative must ask in writing for our approval of the amount of the fee the representative wants to charge using a fee petition. However, if the representative already submitted a form SSA-1560 or equivalent statement in connection with the request for administrative review of the amount of the fee, advise the representative that upon completion of our action we will consider such material under the fee petition process. Include this information in the letters described in GN 03960.055B.7 , acknowledging receipt and notifying the other parties of the request for administrative review. Proceed to GN 03960.055B.7 .

5. Check the Fee Amount Under the Terms of the Agreement

Proceed to GN 03960.055B.6 or GN 03960.055B.7 when:

  • •

    No party has disagreed with the calculation; and

  • •

    There is no apparent error considering the statutory limit described in GN 03940.003B.3, the percentage specified in the agreement, and any other terms in the fee agreement.

Otherwise, follow GN 03960.040C.2.c or d and if necessary, GN 03960.045 and GN 03960.047 about recalculation.

If we revise our determination or decision about the amount of past-due benefits, follow GN 03960.045C. or GN 03960.047C.2. and curtail your review.

Otherwise, proceed to GN 03960.055B.6 or GN 03960.055B.7. .

6. Consider the Standard a Decision Maker Must Meet

Consider the standard in GN 03960.040C.3.

  1. a. 

    If you find evidence showing that either the representative did not represent the claimant's interest adequately or the fee is clearly excessive considering the services provided, proceed to GN 03960.055B.7.

  2. b. 

    If you do not find evidence suggesting inadequate representation or a clearly excessive fee, take the following actions:

    • •

      Follow GN 03960.070 to prepare the letter described in the following bullet. Refer to GN 03960.085 for model letters.

    • •

      If there is no apparent clerical error involved (see GN 03960.040C.2), send a letter telling the decision maker that you did not find evidence of inadequate representation or a clearly excessive fee; that you will not review the determination further; and that the previous determination of the amount the representative may charge and collect for the representative's work in the case is final.

    • •

      If there is an apparent clerical error involved, send a letter telling the decision maker that you did not find evidence of inadequate representation or a clearly excessive fee; that you will not review the determination further; and that you are notifying the effectuating component(s) that an apparent clerical error has been made and that you request that it release a corrective notice(s) that includes new administrative review rights.

    • •

      Send copies to the other parties. Because of Privacy Act considerations, ensure that the mailing address of the claimant, any auxiliary beneficiary, or eligible spouse is redacted from the copy of the notice sent to any other party (the proper parties described in GN 03960.001B.10) except the representative(s).

    • •

      Do not proceed with administrative review. In the case of clerical error, notify the effectuating component(s) of the need for corrective action.

7. Provide Notice Acknowledging Receipt

Follow GN 03960.070 to prepare the following letters. Because of Privacy Act considerations, ensure that the mailing address of the claimant, any auxiliary beneficiary, or eligible spouse is redacted from the copy of the notice sent to any other party (the proper parties described in GN 03960.001B.10) except the representative(s).

Refer to GN 03960.075 for model letters.

  1. a. 

    Prepare the letter telling the requester that you:

    • •

      Received the request;

    • •

      Are notifying the other parties; and

    • •

      Will give them the opportunity to comment or submit additional information.

    Also advise the requester of any outstanding issues, such as:

    • •

      Untimely filing of the request for administrative review;

    • •

      Improperly approved fee agreement; or

    • •

      Incorrectly calculated fee amount.

  2. b. 

    Prepare letters informing any other party of the request for administrative review and what happens next. Advise any party of any outstanding issues, such as those outlined above, and give them the opportunity to comment or submit additional information.

  3. c. 

    Enclose a copy of the request for administrative review with each letter to the other parties. Because of Privacy Act considerations, ensure that the mailing address of the claimant, any auxiliary beneficiary, or eligible spouse is redacted from the copy of the notice sent to any other party (the proper parties described in GN 03960.001B.10) except the representative(s).

  4. d. 

    Send the letters and enclosures. Diary the case for 30 days.

  5. e. 

    When the diary matures, proceed to:

    • •

      GN 03960.057B.1 and 3, if you proposed to disapprove the fee agreement following the instructions in GN 03960.005B.4.b and disapproval is proper;

    • •

      GN 03960.057B.1. and 3., if GN 03960.040C.2.c. applies and you are modifying an incorrectly calculated fee amount;

    • •

      GN 03960.055B.8 if you are ready to act on the requester's explanation for late filing;

    • •

      GN 03960.055B.9 if you need to follow-up for information you requested; or

    • •

      GN 03960.057, if the requester filed timely or you already decided the requester had shown good cause for late filing and none of the above applies.

8. Provide Subsequent Notice - Good Cause Question

Follow GN 03960.070 to prepare the letter(s) described in GN 03960.055B.8.a or GN 03960.055B.8.b. Because of Privacy Act considerations, ensure that the mailing address of the claimant, any auxiliary beneficiary, or eligible spouse is redacted from the copy of the notice sent to any other party (the proper parties described in GN 03960.001B.10) except the representative(s). Refer to GN 03960.080 for model letters.

  1. a. 

    If the requester did not file timely and you received an explanation but have not decided the good cause question (in order to obtain further input as noted in GN 03960.025A.2.b ), prepare letters informing any other party of the requester's explanation for late filing; that they may comment in writing and submit relevant information within 15 days; and that they will hear from you after you have decided whether the requester has established good cause. Proceed to GN 03960.055B.8.c.

  2. b. 

    Decide whether the requester has established good cause for late filing, if ready. See GN 03960.025B.2 for examples of good cause.

    If the requester has not established good cause, go back to GN 03960.055B.3.

    If the requester has shown good cause, prepare letters to the requester and any other party briefly explaining your finding; what happens on review; and that they may comment in writing and submit relevant information within 15 days.

    If you plan to disapprove the fee agreement, include the explanation described above in GN 03960.055B.4.b.

    If you do not plan to disapprove the fee agreement, include an explanation of the correct fee amount, if we incorrectly calculated the amount of the fee under the fee agreement; and, if GN 03960.040C.2.c applies, that you will modify the amount of the fee if neither the requester nor any other party objects to the proposed modification during the comment period; or, if GN 03960.040C.2.d. applies, explain that you will consider the corrected fee amount when determining whether the fee is reasonable.

    If you expect to evaluate the representative's services (considering GN 03960.040C.2.d. 960.040C.2.d and GN 03960.050), include the reques t described in GN 03960.050D.2 in the letter you prepare for the representative.

  3. c. 

    Send the letters. Diary the case for 30 days.

  4. d. 

    When the diary matures:

    • •

      Return to GN 03960.055B.8.b , if you have not yet decided the good cause question;

    • •

      Return to GN 03960.055B.3 , if the requester has not established good cause for late filing;

    • •

      Proceed to GN 03960.055B.9 , if you need to follow-up for information you requested; or

    • •

      Proceed to GN 03960.057, if you are ready to complete administrative review.

9. Follow-up for Outstanding Information

  1. a. 

    Follow-up once by telephone or mail for any additional information you requested but have not received. Advise the party that if you do not receive it within 15 days, you will make a determination on the request for administrative review based on the information in file.

  2. b. 

    Diary the case for 30 days.

  3. c. 

    When you receive the information or the diary matures:

    • •

      Return to GN 03960.055B.3 , if the requester has not shown good cause for late filing;

    • •

      Return to GN 03960.055B.8 , if you are ready to act on the requester's explanation for late filing; or

    • •

      Proceed to GN 03960.057, if you are ready to complete administrative review.

GN 03960.057 Processing Center Reviewer Responsibilities - Completing Administrative Review of the Fee Authorized Under the Fee Agreement Process

A. Introduction

Once you have followed GN 03960.055, ensure that you have considered the following items, as warranted:

  • •

    If the requester filed late, you have decided that the requester has established good cause;

  • •

    If the requester was the decision maker, you have found that the requester has shown that either the representative did not represent the claimant's interest adequately or the fee is clearly excessive considering the services provided; and

  • •

    You have given any other party the opportunity to respond to the request for administrative review.

With all these preliminary matters resolved, it is time to complete the administrative review process, as described in the following subsections.

B. Procedure

1. Consider the statements

  1. a. 

    If either of the following applies, consider the requester's statements and proceed to GN 03960.057B.3:

    • •

      You are reversing the decision maker's approval and disapproving the fee agreement.

    • •

      GN 03960.040C.2.c applies, i.e., you are modifying an incorrectly calculated fee amount under the terms of the fee agreement in a manner consistent with the party's request; and no other party objected during the comment period.

    Otherwise, proceed to GN 03960.057B.1.b.

  2. b. 

    Consider the requester's statements.

    Is the requester protesting the fee amount authorized under the agreement or is the requester:

    • •

      Protesting the proposed manner of payment, e.g., direct payment from an auxiliary beneficiary's past-due benefits (GN 03960.040C.5 discusses the policy.);

    • •

      Objecting to the direct payment when the representative or eligible entity, if there is a valid assignment as described in GN 03920.021, has funds held in a trust or escrow account (see GN 03920.016D.4.); or

    • •

      Seeking payment from the claimant because we did not withhold benefits or released withheld benefits (see GN 03920.055C.).

2. Consider whether the fee is reasonable

  1. a. 

    Consider the factors listed in GN 03960.050C.1 and any additional information or comments received.

  2. b. 

    Determine whether the fee is reasonable, adhering to the instructions in GN 03960.050 and, when applicable,

    GN 03960.040C.4 or GN 03960.040C.5. If the fee authorized under the fee agreement process:

    • •

      Reasonably reflects the value of the services provided, affirm the fee amount.

    • •

      Does not reasonably reflect the value of the services provided, authorize a reasonable fee based on your evaluation of all of the factors listed in GN 03960.050C.

c. Then proceed to GN 03960.057B.3.

3. Issue notice of your determination

  1. a. 

    Follow GN 03960.070 to prepare a letter to the requester, consistent with the following instructions, for release with the appropriate official's signature (see GN 03960.070A.2). Refer to GN 03960.085 for model letters.

  2. b. 

    State the authority for administrative review if a party questioned or challenged our authority to review or to authorize the fee under an approved agreement.

    NOTE: Do not cite regulations pertaining to administrative review of fees determined under the fee petition process. They do not apply to fees determined under the fee agreement process.

  3. c. 

    If the requester did not file timely and you did not resolve the issue in your acknowledgment or interim letters, include a brief explanation of your good cause finding.

  4. d. 

    State whether you are affirming, decreasing, or increasing the fee amount.

    EXCEPTION: This step does not apply if you are disapproving the fee agreement. Instead, provide notice that you are disapproving the fee agreement as explained in GN 03960.040C.1.b.

  5. e. 

    Respond to the issue(s) raised.

  6. f. 

    State that the determination is not subject to further review.

  7. g. 

    Discuss the method of payment (e.g., we will certify direct payment of all or a portion of the fee to the eligible representative or an eligible entity if there is a valid assignment as per GN 03920.021; that the claimant is responsible for all or a portion of the fee; or the representative must refund any excess amount previously certified or paid, including funds held in trust or escrow account).

    NOTE: For additional information regarding the recovery of an excess fee payment and when we will pursue recovery, see GN 03920.051. For procedures on how to recover excess fees payments, refer to GN 03920.052. See GN 03920.016 for the definition of "representative eligible to receive direct fee payment" and policy on direct payment to representatives and entities with valid assignments.

  8. h. 

    State that you are sending copies of the determination to the parties named.

  9. i. 

    Send copies of the determination to the other parties, as GN 03960.040D requires. Because of Privacy Act considerations, ensure that the mailing address and other personal information of the claimant, any auxiliary beneficiary, or eligible spouse is redacted from the copy of the notice sent to any other party (the proper parties described in GN 03960.001B.10) except the representative(s).

  10. j. 

    See GN 03960.060 or GN 03960.065, or both, for subsequent actions, which vary depending on the result.

 

GN 03960.060 Post-Review Actions Under the Fee Agreement Process - Title II

A. Review of Fee Agreement Determination

When the decision maker initially approved or disapproved the fee agreement and the reviewer has affirmed or reversed that determination, post-review actions vary depending on the result.

NOTE: For the definition of “reviewer,” see GN 03960.001D.12.

1. Reviewer Affirmed the Disapproval

When the reviewer has affirmed the disapproval of the fee agreement, the representative must seek approval under the fee petition process to charge and collect a fee. If the representative is not eligible for direct payment, no post-review action is necessary.

If the representative is eligible for direct payment, including when they assigned direct payment of the fee to an eligible entity, the processing center (PC) will, for cases decided:

  • •

    Below the hearing level, follow GN 03930.045C.1 and diary the case for 60 days.

  • •

    At the hearing or Appeals Council (AC) level, follow GN 03930.045C.2 and diary the case for 60 days.

  • •

    In Federal court proceedings or on remand from a court, follow GN 03930.045C.2 and diary the case for 120 days.

If the initial decision maker approved the fee agreement, and the reviewer intends to reverse that determination and disapprove the agreement, see GN 03960.060B.

2. Reviewer Affirmed the Approval or Approved the Fee Agreement

When the reviewer affirmed the approval or reversed the initial disapproval determination and has approved the fee agreement, technicians:

  • •

    Follow GN 03940.030 (Title II claims) or GN 03940.046 (Title XVI claims) to calculate the fee amount if manual calculation is necessary and provide notice of the amount of the fee under the approved agreement, if not resolved already; the past-due benefits amount; and the right to request administrative review of the fee amount within 15 days of receiving this notice.

  • •

    In a concurrent Titles II and XVI case, notify the servicing FO that the determination is available in the online retrieval system (ORS) using Processing Center Action Control System (PCACS) or other locally used communication method a copy of the claimant's notice showing the past-due benefits and fee amounts.

  • •

    Recode the Appointed Fee (APPFEE) and Appointed Rep Account Data (APPREP) Data Lines using the Appointed REP Account Data (ARA) screen.

3. Reviewer Affirmed the Approval or Approved the Fee Agreement and Authorized the Fee Amount

When the reviewer affirmed the initial approval or reversed the previous disapproval determination and has approved the fee agreement and authorized the fee amount, technicians:

  • •

    In a concurrent Titles II and XVI case, notify the servicing FO that the determination is available in ORS using PCACS or other locally used communication method.

  • •

    Recode the APPFEE and APPREP Data Lines using the ARA screen.

B. Reviewer Reversed Approval of the Fee Agreement

When the requester disagreed with the amount of the fee authorized under the agreement and the reviewer disapproved the fee agreement on administrative review, the representative must seek authorization under the fee petition process to charge and collect a fee, or to retain any part of the fee they already collected.

1. Representative Has Petitioned for Authorization of a Fee

The PC reviewer sends the completed Form SSA-1560 or equivalent fee petition to the individual in the PC who has been delegated the authority to approve the representative’s fee  under the fee petition process (see GN 03930.001). If the initial authorization was made at hearing level or above, the reviewer will forward the Form SSA-1560 or equivalent fee petition to the appropriate decision maker identified in GN 03930.015B.

2. Representative Has Not Petitioned for Authorization of Fee -Concurrent Titles II and XVI Case

In addition to the necessary PC action shown in GN 03960.060B.3 or in GN 03960.060B.4 below, the PC reviewer will notify the FO using PCACS, or other locally acceptable method, of their action and that the disapproval notice is available in ORS.

Exception: If information in the claim(s) file shows the claimant has paid the amount of the fee authorized under the agreement, the PC reviewer does not need to complete the Optional Form 41 but will send the servicing FO a copy of the claimant’s notice on administrative review.

3. Representative Not Eligible for Direct Payment

When the representative is not eligible for direct payment, the PC recodes the APPFEE and APPREP Data Lines using the ARA screen.

4. Representative Eligible for Direct Payment

When the representative is eligible for direct payment, including when there is a valid assignment to an eligible entity, the PC recodes the APPFEE and APPREP Data Lines using the ARA screen, and for cases decided:

  • •

    Below the hearing level, follows GN 03930.045C.1 and diary the case for 60 days;

  • •

    At the hearing or AC level, follows GN 03930.045C.2 and diary the case for 60 days; or

  • •

    In Federal court proceedings or on remand from a court, follows GN 03930.045C.2 and diary the case for 120 days.

NOTE: If the representative timely submits a complete fee petition or written notice of their intent to file a petition (see GN 03930.030D), any fee previously authorized and directly paid will be treated as a payment from another source when releasing past-due benefits (see GN 03930.060D) or as an excess fee matter (see GN 03920.051) depending on the circumstances. If the representative does not timely file their fee petition or written notice of intent, the previously authorized and paid fee becomes an excess fee matter.

C. Reviewer Affirms the Fee Under the Agreement

When the reviewer has affirmed the amount of the fee authorized under the agreement, the need for further action depends on whether the representative is eligible for direct payment.

1. Representative Not Eligible for Direct Payment

When the representative is not eligible for direct payment, no post-review action is necessary.

2. Representative Eligible for Direct Payment

When the representative is eligible for direct payment, including when they assigned direct payment to an eligible entity, the technician follows GN 03940.025A and:

  • •

    Certifies direct payment of the fee to the eligible representative, or the eligible entity if there is a valid assignment as described in GN 03920.021, from past-due benefits withheld;

  • •

    Releases any excess to the claimant, unless there are other reasons to continue to withhold past-due benefits (e.g., other eligible representatives or Federal court involvement); and

  • •

    When there are one or more auxiliary beneficiaries whose claims are pending, follows GN 03940.035.

Refer to GN 03920.016, for the definition of “representative eligible to receive direct fee payment” and policy on direct payment to representatives and entities with valid assignments. Refer to GN 03920.021 for information about the assignment of direct payment of fees to an eligible entity.

D. Reviewer Modifies the Fee Under the Agreement

When the reviewer has modified the amount of the fee under the agreement, the technician:

  1. 1. 

    In a concurrent Titles II and XVI case, follows GN 02610.053B.4 and notifies the FO using PCACS or other locally acceptable method, of their action and that the notice is available in ORS.

  2. 2. 

    Recodes the APPFEE and APPREP Data Lines using the ARA screen.

  3. 3. 

    When the representative is eligible for direct payment, including when they assign direct payment to an eligible entity, follows GN 03940.025A and:

    • •

      Certifies direct payment of the fee to the eligible representative, or the eligible entity if there is a valid assignment as described in GN 03920.021, from withheld past-due benefits;

    • •

      Releases any excess to the claimant, unless there are other reasons to continue to withhold past-due benefits (e.g., other eligible representatives or Federal court involvement); and

    • •

      When there are one or more auxiliary beneficiaries whose claims are pending, follows GN 03940.035.

NOTE: If the reviewer reduces the fee amount authorized, any fee previously authorized and paid will be treated as an excess fee matter as described in GN 03920.051, regardless of whether we or the claimant paid the previously authorized fee.

 

GN 03960.065 Post-Review Actions Under the Fee Agreement Process - Title XVI

A. Process

1. Review of the Fee Agreement Determination

Post-review actions vary according to the reviewer's determination on administrative review.

a. Reviewer Affirmed the Disapproval

When the reviewer has affirmed the disapproval of the fee agreement, the representative must seek approval under the fee petition process to charge and collect a fee. The processing center (PC) reviewer will ensure a copy of the administrative review determination is associated with the claim(s) file and added to Evidence Portal (EP). The PC reviewer will notify the field office (FO) using the Processing Center Action Control System (PCACS), or other locally acceptable method, of their action and that the disapproval notice is available in the claim file(s).

b. Reviewer Affirmed the Approval or Approved the Fee Agreement

When the reviewer has reversed the initial determination and approved the fee agreement, or affirmed the initial approval, the following occurs.

The PC reviewer ensures a copy of the determination is associated with the claim(s) file and EP. They will then notify the FO via PCACS, or other locally acceptable method, of their action, that the approval notice is available in the claim file(s), and take the actions in GN 03960.065A.1.b.

The FO claims specialist (CS) follows GN 03940.046 to determine the fee amount and, in concurrent cases, SI 02006.210 to adjust the Title II income when the FO receives a copy of the claimant's notice showing the Title II portion of the fee amount.

The FO CS also provides notice of the amount of the fee under the approved agreement and, if not done already, the past-due benefits amount.

2. Reviewer First to Disapprove the Fee Agreement

When the requester disagreed with the amount of the fee under the agreement and the reviewer disapproved the fee agreement on administrative review, the representative must seek authorization under the fee petition process to charge and collect a fee.

a. PC Reviewer Actions

  • •

    When the representative submitted a Form SSA-1560 or an equivalent fee petition statement in connection with the request, the PC reviewer sends the material to the individual in the PC delegated the authority to authorize the representative's fee under the fee petition process (see GN 03930.015). If the initial authorization was made at hearing level or above, the reviewer will forward the Form SSA-1560 or equivalent fee petition to the appropriate decision maker identified in GN 03930.015B.

  • •

    When the representative has not submitted a Form SSA-1560or equivalent fee petition statement, the PC reviewer ensures a copy of the determination is associated with the claim(s) file or EP and will notify the FO using PCACS or other locally acceptable method, of their action, that the disapproval notice is available in the claim file(s) or EP, and to follow the procedures outlined in GN 03960.065A.2.b.

b. FO Action When the Reviewer Disapproved the Fee Agreement

When the reviewer disapproved the fee agreement:

  • •

    Determine if post-review action is necessary concerning any Title XVI portion of the representative's fee.

  • •

    If the FO adjusted the Title II income (following SI 00830.100 and SI 02006.210) but the claimant has not paid the amount of the fee authorized under the agreement, the FO CS readjusts the Title II income to reflect that the claimant has not incurred expenses for representation.

  • •

    If the FO did not adjust the Title II income or if the claimant has paid the amount of the fee authorized under the agreement, no post-review action is necessary concerning the Title II portion of the representative's fee.

NOTE 1: Adjustment may later be necessary if we subsequently authorizes a fee under the fee petition process or the representative or entity refunds the fee amount paid by the claimant under the fee agreement.

NOTE 2: If the representative timely submits a complete fee petition or written notice of their intent to file a petition (see GN 03930.030D), any fee previously authorized and directly paid will be treated as a payment from another source when releasing past-due benefits (see GN 03930.060D) or as an excess fee matter (see GN 03920.051) depending on the circumstances. If the representative does not timely file their fee petition or written notice of intent, the previously authorized and paid fee becomes an excess fee matter. 

3. Reviewer Affirms the Fee Under the Agreement

When the reviewer has affirmed the amount of the fee authorized under the agreement, the following occurs:

  1. a. 

    PC Reviewer Actions

    The PC reviewer will ensure a copy of the determination is associated with the claim(s) file or EP and will notify the FO using PCACS or other locally acceptable method, of their action, that the disapproval notice is available in the claim file(s)  and to follow the procedures outlined in GN 03960.065A.3.b.

  2. b. 

    FO Action When the Reviewer Affirmed the Fee for Services

    • •

      Determine if post-review action is necessary concerning the Title XVI portion of the representative's fee.

    • •

      If the FO adjusted the Title II income (following SI 00830.100 and SI 02006.210), no post-review action is necessary.

    • •

      If the FO did not adjust the Title II income, the FO CS follows SI 00830.100 and SI 02006.210 and adjusts the Title II income to reflect the amount of the fee for both the Titles II and XVI claims.

4. Reviewer Modifies the Fee Under the Agreement

When the reviewer has modified the amount of the fee authorized under the agreement, the following occurs:

  1. a. 

    PC Reviewer Actions

    The PC reviewer ensures a copy of the determination is associated with the claim(s) file or EP and notifies the FO using PCACS or other locally acceptable method, of their action, that the disapproval notice is available in the claim file(s) or EP, and to follow the procedures outlined in GN 03960.065A.4.b.

  2. b. 

    FO Action When the Reviewer Modified the Fee for Services

    • •

      Determine if post-review action is necessary concerning any Title XVI portion of the representative's fee.

    • •

      The FO CS follows SI 00830.100 and SI 02006.210 and adjusts the Title II income to reflect the amount of the fee for both the Titles II and XVI claims.

 


GN 03960 TN 12 - Administrative Review of Determinations Under the Fee Agreement Process - 12/09/2024