An affected auxiliary beneficiary is an individual who has benefited from the representative’s services to the claimant who appointed the representative. References to the “affected auxiliary beneficiary” as a party include any person authorized to act on the beneficiary’s behalf, e.g., a parent or legal guardian.

A claimant is any individual whose asserted rights under Titles II, XVI, or XVIII of the Social Security Act (Act) are, or may be, affected by our determination or decision. As used throughout this subchapter, the term includes a beneficiary. References to the “claimant” as a party include any person authorized to act on the claimant’s behalf, e.g., a parent or legal guardian.

The decision maker is the person who has responsibility for adjudicating the claim, post-entitlement, or post-eligibility action, including a fee authorization, at a given level of the administrative review process, e.g., claims specialist (CS), claims technical expert (CTE), attorney advisor, administrative law judge (ALJ), or administrative appeals judge (AAJ).

Disapproval of the fee agreement means that the decision maker determined that the fee agreement does not meet statutory conditions for approval, or one of the exceptions to the fee agreement process applies (see GN 03940.003).

Entity means any business, firm, or other association, including but not limited to partnerships, corporations, for-profit organizations, and not-for-profit organizations (see 20 CFR 404.1703 and 416.1503). A representative can assign direct payment of an authorized fee to an eligible entity per GN 03920.021. However, an entity is not a party to the fee agreement and cannot request administrative review under the fee agreement process.

A fee agreement is a written statement signed by the claimant and their representative(s) specifying the fee the representative(s) expects to charge and collect, and the claimant expects to pay, for services the representative(s) provides in pursuing the claimant's benefit rights in proceedings before us. A fee agreement submitted to us before the date of our first favorable determination or decision must be considered for approval under the fee agreement process regardless of when in the administrative review process the claim or other matter is favorably decided.

The notice of approval or disapproval of the fee agreement, or “fee agreement notice,” is the notice we send to the claimant and the representative explaining what action the decision maker took on the fee agreement between the claimant and the representative. The exact notice we send depends on the level at which we favorably decide the matter, as follows:

Notice of the fee determination, or fee authorization notice, is the notice that we send to the claimant and the representative(s) specifying the fee we authorize. There are two types of fee authorization notices for fee agreements:

• •

  In Title II and concurrent Titles II and XVI cases, the award or post-entitlement notice states the amount of the fee that we authorize the representative to charge and collect under the fee agreement process.

• •

  In Title XVI only cases, the Fee Agreement Notice on Form SSA-L8165-U2 (SSI Important Information), states the amount of the fee that we authorize the representative to charge and collect under the fee agreement process.

A non-requester is a person who is a party to the determination, but who did not request administrative review of the approval or disapproval of the fee agreement or of the amount of the fee authorized under the fee agreement process.

The proper party to request administrative review under the fee agreement process may be any of the parties to the agreement (see GN 03940.003B.2.), any affected auxiliary beneficiary or eligible spouse, and the initial decision maker. A proper party may be either a requester or non-requester, depending on whether they file a request for administrative review. In most cases, an entity and its point of contact (POC) are not proper parties under the fee agreement process, as they are not parties to the agreement. However, if a representative who has validly assigned direct payment of any authorized fee dies, and at least one other representative remains active on the claim (see GN 03940.003D.6.), 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 on behalf of the deceased representative. If the representative did not assign direct payment of their fee before dying, the executor or other legal representative of the deceased representative's estate may request administrative review.

For this subchapter on fee agreement administrative review, a representative is an individual who meets the qualifications shown in GN 03910.020A.1. or 2, and whom the claimant appoints on a Form SSA-1696 to represent them in dealings with the agency. This individual may be an attorney or non-attorney as described in those subsections.

A requester is the person who requested administrative review of the approval or disapproval of the fee agreement or of the amount of the fee authorized under the fee agreement process.

A reviewer is the agency official who has been delegated the authority to conduct administrative review, as indicated in GN 03960.005. “PC reviewer” refers to a reviewing official below the hearing level.

Our determination on administrative review under the fee agreement or fee petition process is final and binding.

Unlike administrative review under the fee petition process, which involves only a review of the amount of the fee authorized (see GN 03950.000), administrative review under the fee agreement process in §206(a)(2) and (3) of the Social Security Act (the Act), as amended, may involve two distinct issues: the review of a determination approving or disapproving the fee agreement; and the review of the amount of the fee authorized under the fee agreement.

Therefore, in some instances, a party could file two requests for administrative review:

• •

  The first when they received notice of the decision maker's determination on the fee agreement. The party may object to either the approval or disapproval of the fee agreement; and

• •

  The second when we approved the fee agreement, either initially or after reversing a disapproval on administrative review, and authorized the amount of the fee under the agreement. The party may also object to the fee amount authorized.

Administrative review under the fee agreement process also differs from administrative review under the fee petition process as follows:

1. a. 

   The party requesting administrative review must do so within 15 days of receiving the notice of determination on the fee agreement or the notice authorizing the amount of the fee. Under the fee petition process, the party requesting administrative review must do so within 30 days after the date of the notice of the fee authorization.

2. b. 

   The decision maker may:

   • •

     Request administrative review of the amount of the fee authorized under the agreement;

   • •

     Comment on another party's request for administrative review; and

   • •

     Conduct an administrative review requested by the claimant, an affected auxiliary beneficiary, or the representative, if we favorably decided the claim at the hearing or AC level and the issue for review is the amount of the fee under the agreement.

     EXAMPLE: The ALJ who made the favorable hearing decision may conduct administrative review of the fee amount authorized under the fee agreement based on a request filed by the claimant.

Whether the issue is the approval or disapproval of the fee agreement or the amount of the fee, administrative review under the fee agreement process generally involves the same procedural steps that GN 03950.001C. describes for administrative review under the fee petition process. These steps are:

• •

  Examining the request and the file to establish authority to conduct review and timely filing by a proper party. For information about proper parties, see GN 03960.001D.10 (in this section) and GN 03960.010;

• •

  Notifying the processing center (PC) of the request in cases under Title II involving a representative eligible for direct payment, including cases where the representative assigned direct payment of their fee to an eligible entity;

• •

  Informing the parties and providing them an opportunity to comment;

• •

  Reviewing the initial determination; and

• •

  Notifying the requester and the parties of the determination on administrative review.

As under the fee petition administrative review process, these steps generally follow in sequence. However, sometimes we may not be able to act on the administrative review request, e.g., when an improper party requested review. Sometimes the steps can overlap, e.g., the reviewer requests an explanation of good cause for late filing from the claimant while informing the other parties of the request for administrative review at the same time.

Field Offices (FOs) do not conduct administrative review under the fee agreement process. FO responsibilities in the process involve the following:

• •

  Properly routing any requests for administrative review that the FO may receive to the appropriate reviewing component (GN 03960.015).

• •

  Providing information about Title XVI cases, including the computation of the past-due benefits amount (GN 03960.043, GN 03960.045, and GN 03960.047).

• •

  Taking post-review actions in Title XVI cases (GN 03960.065).

• •

  Responding to inquiries from claimants, auxiliary beneficiaries, eligible spouses, and representatives.

However, a FO decision maker may request administrative review of the amount of the fee under an approved agreement (see GN 03960.010B.2. and C.). The FO decision maker may also comment on another party's request if it concerns the fee amount.

When conducting administrative review of an approval or disapproval of the fee agreement, the identity of the initial decision maker controls who has authority to conduct the administrative review. The chart below shows those delegated authority to conduct administrative review in cases decided at or above the hearing level, including Title XVI only cases.

When the issue for administrative review is the amount of the fee under the fee agreement process, the identity of the requester controls who has authority to conduct the review.

1. a. 

   Hearing Level

   Individual Requesting Review of the Fee Amount	Reviewing Official
   Claimant, affected auxiliary beneficiary, eligible spouse, or representative	Decision maker (Hearing Office Chief Administrative Law Judge (HOCALJ), ALJ, or attorney advisor) who issued the favorable decision
   Decision maker	RCALJ or assistant RCALJ with jurisdiction over the decision maker's hearing office
   RCALJ or assistant RCALJ	Deputy Chief ALJ or Chief ALJ
   Claimant, affected auxiliary beneficiary, eligible spouse, or representative AND Decision maker	RCALJ or assistant RCALJ with jurisdiction over the decision maker's hearing office OR the National Hearing Center (NHC) cases, the RCALJ or assistant RCALJ with jurisdiction over the hearing office that transferred the case to the NHC

2. b. 

   Appeals Council Level

   Individual Requesting Review of the Fee Amount	Reviewing Official
   Claimant, affected auxiliary beneficiary, eligible spouse, or representative	OAO Deputy Executive Director or designee
   AAJ	OAO Deputy Executive Director or designee
   OAO Deputy Executive Director or designee	OAO Executive Director or designee

1. a. 

   A claimant, affected auxiliary beneficiary, eligible spouse, or representative may request administrative review for any reason.

2. b. 

   A claimant, auxiliary beneficiary, eligible spouse, or representative must file a written request for review with one of our offices within 15 calendar days of receiving the notice of the fee agreement determination or fee determination. See GN 03960.025 regarding late filing.

3. c. 

   We generally presume that a claimant, auxiliary beneficiary, eligible spouse, or representative received the notice within 5 days of the date on the notice, unless shown otherwise.

4. d. 

   The fee agreement and fee petition processes are not interchangeable. If the decision maker approved the fee agreement and proper notice of the fee amount was sent, we will consider a Form SSA-1560 (Petition for Authorization to Charge and Collect a Fee for Services Before the Social Security Administration), or other fee petition as a timely request for administrative review when it is:

   • •

     Filed by a representative within the 15-day period for requesting administrative review; and

   • •

     Requesting a fee amount greater than the amount of the fee authorized under the fee agreement process.

1. a. 

   The decision maker who made the favorable determination or decision may request reduction of the amount of the fee only when they believe the evidence of record shows:

   • •

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

   • •

     The fee is clearly excessive considering the services provided.

   EXAMPLES:

   • •

     The claimant appointed a representative to pursue their claim and signed the fee agreement two months before the representative filed, on the claimant's behalf, a letter of intent to claim benefits. This delay resulted in a loss of two months' retroactive benefits. The Claims Specialist (CS) who approved the fee agreement requested a reduction of the amount of the fee because the CS believed that the representative failed to represent the claimant's interest adequately.

   • •

     An administrative law judge (ALJ) found the claimant entitled to a period of disability and disability insurance benefits after a hearing at which the claimant was unrepresented. Just before the hearing office issued the favorable decision, it received the claimant's Form SSA-1696 (Claimant's Appointment of a Representative) and a fee agreement specifying a fee of the lesser of 25 percent of past-due benefits or the applicable statutory fee limit described in GN 03940.003B.3. The ALJ approved the fee agreement because it met the statutory conditions and no exception applied. After reviewing a copy of the claimant's Notice of Award, however, the ALJ requested a reduction of the amount of the fee because the ALJ believed that the fee under the agreement was clearly excessive for meeting with the claimant, reviewing the initial and reconsidered decisions, and requesting a copy of the hearing recording with the testimony.

   • •

     The claimant appointed a representative to pursue their claim after receiving an initial notice of denial. The representative and claimant signed and submitted a Form SSA-1696 and fee agreement with us. The Disability Determination Service (DDS) requested assistance from the representative in securing additional medical evidence and scheduling a consultative examination for their client. The representative refused to assist DDS, and instead indicated that they would present their client's case to an ALJ if the claim was denied on reconsideration. The DDS found the claimant to be under a disability and documented the responses of the representative. The CS approved the fee agreement when they adjudicated the claim, but upon receiving the notice, which authorized a fee of the statutory fee limit, the CS requested a reduction of the amount of the fee because the CS believed the representative had failed to represent the claimant's interest adequately and the fee under the agreement was clearly excessive for the services provided.

2. b. 

   Attorney advisor, ALJ, and administrative appeals judge (AAJ) decision makers in the Office of Hearings Operations (OHO) and the Office of Appellate Operations (OAO) may, when approving the fee agreement, request notification by email from the field office (FO) or processing center (PC) effectuating the decision that the fee determination notice is available for review in eView or the Online Retrieval System (ORS). Alternatively, the adjudicator may ask support staff to set a diary to check eView or ORS for a notice with the fee amount information (See HALLEX I-1-2-45). In Title II cases, FO and PC decision makers choose whether to request, or otherwise obtain, a copy of the notice when adjudicating the claim. (GN 03940.015A.2.i. provides instructions.) In Title XVI cases, FO decision makers prepare and issue the notices of fee determinations.

   Therefore, a decision maker must file a written request:

   • •

     Within 15 calendar days of receiving their copy of the notice of the fee determination or other notification of the fee amount; or

   • •

     In Title XVI cases, and in Title II cases in which a FO or PC decision maker did not timely request, or otherwise obtain, a copy of the notice of the fee determination, within 15 calendar days of the date SSA presumes the claimant or auxiliary beneficiary received their notice.

     NOTE: As indicated in GN 03960.010C.1., the decision maker will not request administrative review of the fee amount until we have notified the claimant, any affected auxiliary beneficiary or eligible spouse, and representative of the amount of the fee.

   The controlling date for determining timely filing by a decision maker is the date of receipt of the request or other notification of the fee amount in the office responsible for conducting review, not the signature date. See GN 03960.025 regarding late filing.

3. c. 

   Presume that a decision maker received or viewed their copy of the notice within 5 days of the date of the notice, unless shown otherwise.

   EXAMPLES:

   • •

     The claimant's notice of award is dated December 5. The copy of the notice which the PC sent to the CS, at their request, bears the same date. The CS filed a written request for administrative review of the amount of the fee on December 27. Presumably the CS received their copy of the notice by December 10, and did not file a timely request. However, the CS's copy of the notice was date-stamped when received in the District Office on December 12. Therefore, the CS requested review timely.

   • •

     The CS filed a written request for administrative review of the amount of the fee on January 29. The CS had not requested a copy of the award notice when adjudicating the Title II claim. Because the claimant's notice is dated January 7, we presume the claimant received notice by January 12. The PC reviewer concludes that the CS did not file timely because they did not request administrative review by January 27.

   • •

     The PC received a CS's request for administrative review on February 12. The SSA-L8165-U2 fee agreement notice sent to the claimant is dated January 27. Presumably the claimant received the Title XVI notice by February 1. The CS requested review timely, within 15 days of that date.

4. d. 

   When a PC CS approves a fee agreement after an FO CS failed to act on the agreement in a District Office Final Authorization (DOFA) case (see GN 03940.020F.), the FO CS continues to be the “decision maker” in the case, as defined in GN 03940.001B.3. Therefore, only the FO CS may request administrative review of the amount of the fee as explained in GN 03960.010B.2.a., even though they did not act on the fee agreement. The PC CS may not request administrative review.

We certify the amount of the fee for direct payment to the eligible representative, or to an eligible entity if there is a valid assignment as per GN 03920.021, from withheld past-due benefits only after we have completed any requested administrative review and notified the parties of our determination on review. 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.

If you are the decision maker and you believe one of the conditions in GN 03960.010B.2.a.(in this section) applies, use the memorandum shown in GN 03960.090 to request administrative review of the amount of the fee under the fee agreement process. Prepare your request when you approve the fee agreement, as indicated below. Do not file it until we notify the claimant and representative of the amount of the fee.

• •

  Type or print your name, title, and office in the “From” lines.

• •

  Explain why you believe the evidence shows that the representative did not represent the claimant's interest adequately, or that the fee is clearly excessive considering the services provided.

• •

  Complete the remainder of the fill-ins, which are self-explanatory.

If your request is not timely, explain why (see GN 03960.025A.1.).

File your request after we have notified the claimant and representative of the amount of the fee.

1. a. 

   If we are withholding Title II benefits for possible direct payment to an eligible representative, or to an eligible entity if there is a valid assignment as per GN 03920.021, first call the PC module to prevent premature release of the amount withheld. The PC takes the actions in GN 03960.020A.1.

2. b. 

   Send a copy of the memorandum you prepared following GN 03960.010C.1 to the claimant or any affected auxiliary beneficiary or eligible spouse, and one to the representative.

3. c. 

   Ensure that your memorandum is associated with the claim(s) file and available in eView or Evidence Portal (EP). If there is a paper folder, attach the original to the folder. Forward the request to the PC module.

File your request after we have notified the claimant and representative of the amount of the fee.

1. a. 

   Follow GN 03960.020A.1.

2. b. 

   Send a copy of the memorandum you prepared following GN 03960.010C.1 to the claimant or any affected auxiliary beneficiary or eligible spouse, and one to the representative.

3. c. 

   Ensure that your memorandum is associated with the claim(s) file and available in eView or EP. If there is a paper folder, attach the original to the folder. Forward the request to the PC reviewer.

Parties to the fee agreement determination are the parties who signed the agreement. These parties include:

• •

  the claimant; and

• •

  the representative, as well as any co-representative who signed the fee agreement.

When a proper party files a request for administrative review of the fee agreement determination,, we must:

• •

  Notify each other party and the decision maker of the request; and

• •

  Give them the opportunity to respond to the request in writing within 15 days.

(See GN 03960.035B.4. for the procedure.)

When deciding whether to affirm or reverse the decision maker's determination on the fee agreement, we will consider the fee agreement, the fee agreement determination, the request for administrative review, and any additional information provided.

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 further in this section.

• •

  If you do have authority, obtain the claim(s) file, or ensure that it is an electronic record, then proceed to GN 03960.035B.2.

1. a. 

   Identify:

   • •

     All parties and the decision maker;

   • •

     The fee agreement;

   • •

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

   • •

     The notice of approval or disapproval of the fee agreement.

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 or include your request for additional information in the letter described in GN 03960.035B.4., which acknowledges receipt of the request for administrative review. Ask for a response within 15 days and diary the case for 30 days. Ensure that any oral conversations are documented in an SSA-5002 (Report of Contact) and that all materials related to development are associated with the claim(s) file.

4. d. 

   Proceed to GN 03960.035B.3 or GN 03960.035B.4.

If the request was not filed timely and the requester did not establish good cause (see GN 03960.025B.2.), or the request was not filed by a proper party:

1. a. 

   Follow GN 03960.070 to prepare the letter described in the following subsection. Refer to GN 03960.085 for model final notices.

2. b. 

   Send a letter telling the requester:

   • •

     The reason(s) for deciding that they did not show good cause, or they are not a proper party;

   • •

     You will not review the determination; and

   • •

     If the requester was a representative requesting review of a disapproved fee agreement, tell the representative that they must request approval of any fee they want to charge and collect using the fee petition process.

3. c. 

   Send a copy to any other party.

4. d. 

   If the requester was a representative requesting review of a disapproved fee agreement, enclose a Form SSA-1560 (Petition for Authorization to Charge and Collect a Fee for Services Before the Social Security Administration) with the letter sent to the representative. Do not proceed with administrative review.

1. a. 

   Follow GN 03960.070 to prepare the letters in the following subsections. Refer to GN 03960.075 for model letters.

2. b. 

   Prepare the letter telling the requester that you:

   • •

     Received their request;

   • •

     Are notifying any other party and the decision maker; and

   • •

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

   If the requester filed timely or has established good cause for late filing, also explain what happens on review.

3. c. 

   Prepare the letter(s) informing any other party of the request for administrative review and what happens next. If the requester:

   • •

     Filed timely, explain to any other party what happens on review; and that they may, within 15 days, comment in writing and submit relevant information;

   • •

     Did not file timely but they have established good cause for late filing, briefly explain to any other party your good cause finding; what happens on review; and that they may, within 15 days, comment in writing and submit relevant information;

   • •

     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., inform any other party of the requester's explanation for late filing and explain that they may, within 15 days, comment in writing and submit relevant information, and that they will hear from you after you have decided whether the requester has shown good cause; or

   • •

     Did not file timely and you are awaiting an explanation of the reason(s) for late filing, inform any other party that you are developing good cause and that they will hear from you again.

4. d. 

   Enclose a copy of the request for administrative review with the letter(s) to any other party.

5. e. 

   Send the letters and enclosure(s). Send a copy to the decision maker or email a notification to the decision maker to inform them the letter is available in the Online Retrieval System (ORS). Diary the case for 30 days.

6. f. 

   When the diary matures, proceed to:

   • •

     GN 03960.035B.5. below, if you are ready to act on the requester's explanation for late filing;

   • •

     GN 03960.035B.6. below, if you need to follow-up for information you requested; or

   • •

     GN 03960.037, if you are ready to complete administrative review.

1. a. 

   Follow GN 03960.070 to prepare the letter described in GN 03960.035B.5.b. or GN 03960.035B.5.c. of this subsection. Refer to GN 03960.080 for model letters.

2. b. 

   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 a letter informing any other party of the requester's explanation for late filing; that they may, within 15 days, comment in writing and submit relevant information; and that they will hear from you after you have decided whether the requester has established good cause. Proceed to GN 03960.035B.5.d..

3. c. 

   Decide whether the requester has shown good cause for late filing. See GN 03960.025B.2. for examples of good cause. If the requester:

   • •

     Has not established good cause, go back to GN 03960.035B.3.

   • •

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

4. d. 

   Send the letter(s) and a copy to the decision maker, or email a notification to the decision maker to inform them the letter is available in ORS. Diary the case for 30 days.

5. e. 

   When the diary matures:

   • •

     Return to GN 03960.035B.5.c, if you have not yet decided the good cause question;

   • •

     Return to GN 03960.035B.3, if the requester has not established good cause for late filing;

   • •

     Proceed to GN 03960.035B.6., if you need to follow-up for information you requested; or

   • •

     Proceed to GN 03960.037, if you are ready to complete administrative review.

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 the file.

2. b. 

   Diary the case for 30 days.

3. c. 

   When you receive the information or the diary matures:

   • •

     Return to GN 03960.035B.3, above, if the requester has not established good cause for late filing;

   • •

     Return to GN 03960.035B.5, if you are ready to act on the requester's explanation for late filing; or

   • •

     Proceed to GN 03960.037, if you are ready to complete administrative review.

1. a. 

   In reviewing the fee agreement determination consider if:

   • •

     The conditions for approving the fee agreement were met at the time the decision maker made the favorable determination on the claim or post-entitlement/post-eligibility (PE) action (GN 03940.003B lists the conditions); or

   • •

     Any of the exceptions to the fee agreement process applied at the time the decision maker made the favorable determination on the claim or PE action or, if later, acted on the agreement (GN 03940.001C.2. lists the exceptions or exclusions).

   NOTE: Generally the decision maker approves or disapproves a fee agreement when making the determination favorable to the claimant. However, sometimes the decision maker considers the fee agreement at a later time, e.g., if the fee agreement filed with us is not referred to the decision maker before they favorably decide the claim.

2. b. 

   Either affirm the approval or reverse the previous disapproval determination and approve the fee agreement if:

   • •

     The fee agreement met all the conditions for approval; and

   • •

     None of the exceptions applied at the time the decision maker made the favorable determination on the claim or PE action or, if later, approved or disapproved the agreement.

3. c. 

   Either affirm the disapproval or reverse the previous approval determination and disapprove the fee agreement if:

   • •

     The fee agreement did not meet all the conditions for approval; or

   • •

     One or more exceptions applied at the time the decision maker made the favorable determination on the claim or PE action or, if later, approved or disapproved the agreement.

   EXAMPLES:

   • •

     The decision maker disapproved a fee agreement because it was not signed by the representative. The representative requested review of the disapproval and submitted a signed fee agreement to correct the omission. The reviewer must affirm the disapproval because the fee agreement did not meet the signature requirement when the decision maker favorably decided the claim.

   • •

     The representative filed the fee agreement signed by the representative and the claimant with one of our offices on January 7. The decision maker, in another office, made a favorable determination on January 13. On January 17, the claimant was declared legally incompetent by a state court. Subsequently, the decision maker received and disapproved the fee agreement. The reviewer must reverse the disapproval. The fee agreement met all the statutory conditions for approval and none of the exceptions applied when the decision maker favorably decided the claim. Although the claimant had been declared legally incompetent, it was not before the claimant signed the fee agreement (see GN 03940.003D.4).

To issue a notice of the determination on administrative review:

1. a. 

   Follow GN 03960.070 to prepare the letter to the requester, consistent with the following instructions in GN 03960.037 B.2.b through g., for release with the signature of the Assistant Regional Commissioner for Processing Center Operations (ARC-PCO) in the Program Service Centers (PSC); or the Director of the Office of Central Operations or a designee in a non-PSC cases. Refer to GN 03960.085 for model letters.

2. b. 

   Include a brief explanation of your good cause finding, if the requester did not file timely and you did not resolve the issue in your acknowledgment or interim letter(s).

3. c. 

   Respond to the issue(s) raised.

4. d. 

   If you have affirmed the disapproval or reversed the previous determination and disapproved the fee agreement:

   • •

     Explain both your action and that the representative must request approval of any fee they want to charge and collect using the fee petition process.

   • •

     Enclose an SSA-1560 with the letter or copy sent to the representative.

   • •

     In a Title II case involving a representative eligible for direct payment, follow GN 03930.090 when more than 60 days have elapsed since we first advised the eligible representative of the need to request fee approval under the fee petition process. This will advise the claimant and eligible representative that to receive direct payment from past-due benefits withheld, the representative must file a written request for approval of a fee or an extension of time to file the request within 20 days.

     NOTE: In limited circumstance, the POC may file the fee petition (see GN 03930.020A). If there is a valid assignment, and we have information confirming the limited circumstances exist, send a copy of this 20-day notice to the eligible entity’s point of contact (POC). For information about the assignment of direct payment of fees, including the roles and responsibilities of a POC, see GN 03920.021.

   • •

     Proceed to GN 03960.035B.2.f.

5. e. 

   If you have reversed the disapproval, explain why you now approve the fee agreement. In authorizing the fee, you must also include an explanation of the procedure for review of the fee resulting from the agreement. If you affirmed the previous approval, state that you are affirming the initial fee agreement determination.

   • •

     In a Title II case, depending on whether you know the past-due benefits amount, include either the amount of the fee under the agreement or a statement that we will authorize the fee when past-due benefits are determined.

   • •

     In a Title XVI case, state that we will authorize the fee when past-due benefits are determined.

6. f. 

   State that you are sending copies of the determination to the party or parties named and the decision maker.

7. g. 

   State that the fee agreement determination is not subject to further review.

8. h. 

   Send copies of the determination to any other party and the decision maker (or an email to notify the decision maker that the determination is available in the Online Retrieval System (ORS)), as GN 03960.030B. requires.

9. i. 

   See GN 03960.060 in a Title II case, or GN 03960.065.1. in a Title XVI case, or both, for subsequent actions which vary depending on the result.

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:

• •

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

• •

  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.

• •

  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.

• •

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

• •

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

• •

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

• •

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

• •

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

• •

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

• •

  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:

• •

  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 03960.050.C.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:

• •

  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.

• •

  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.

• •

  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:

• •

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

• •

  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.

   • •

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

   • •

     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.

   • •

     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:

   • •

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

   • •

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

   • •

     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:

• •

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

• •

  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:

• •

  Acknowledging a representative's request for administrative review; or

• •

  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:

• •

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

• •

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