GN 03960.010 Requesting Administrative Review Under the Fee Agreement Process

A. Policy - Review of the Fee Agreement Determination

We review a determination approving or disapproving the fee agreement if the claimant or representative, including any co-representative who signed the fee agreement, files a written request with one of our offices within 15 calendar days of receiving the notice of the fee agreement determination. See GN 03960.025 regarding late filing. We will presume that the claimant or representative received the notice within 5 days of the date on the notice, unless shown otherwise.

EXCEPTION: In foreign cases, presume that the claimant or representative received notice within 14 days of the date on the notice.

B. Policy - Review of the Fee Amount

We review a determination of the amount of the fee, or the fee authorization, under an approved fee agreement if:

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The claimant, an affected auxiliary beneficiary or eligible spouse, or the decision maker submits a timely request to reduce the fee; or
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The representative submits a timely request to increase the fee. This includes any co-representative who signed the fee agreement.

NOTE: An entity is not a party to a fee agreement even where an appointed representative validly assigned their right to direct payment of a fee to that entity. As such, the entity and its point of contact (POC) generally does not have the right to file for administrative review under the fee agreement process and only the assigning representative may request administrative review. However, if a representative who has validly assigned direct payment of any authorized fees dies, and at least one other representative 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. The POC must provide proof of the representative’s death (e.g., a copy or screen shot of an obituary) when submitting the request for administrative review. For more information about the assignment of direct payment of fees, including the roles and responsibilities of POCs, see GN 03920.021. If the representative did not assign direct payment, only the executor or other legal representative of the deceased representative's estate may request review.

1. Claimant, Auxiliary, Spouse, or Representative Request

a.

A claimant, affected auxiliary beneficiary, eligible spouse, or representative may request administrative review for any reason.
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.
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.
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:
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  Filed by a representative within the 15-day period for requesting administrative review; and
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  Requesting a fee amount greater than the amount of the fee authorized under the fee agreement process.

2. Decision Maker Request

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:
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  The representative failed to represent the claimant's interest adequately; or
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  The fee is clearly excessive considering the services provided.
EXAMPLES:
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  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.
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  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.
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  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.
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:
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  Within 15 calendar days of receiving their copy of the notice of the fee determination or other notification of the fee amount; or
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  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.
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:
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  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.
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  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.
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  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.
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.

3. Direct Payment - Eligible Representative or Eligible Entity if There is a Valid Assignment

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.

C. Procedure

1. Decision Maker Prepares Request for Review

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.

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Type or print your name, title, and office in the “From” lines.
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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.
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Complete the remainder of the fill-ins, which are self-explanatory.

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

2. FO Decision Maker Files Request

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

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.
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.
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.

3. PC Decision Maker Files Request