I-1-2-44. Administrative Review of the Fee Authorized Under the Fee Agreement Process — Overview

1. Claimant, Affected Auxiliary Beneficiary, Eligible Spouse, or Representative Requests Review

The claimant, affected auxiliary beneficiary, eligible spouse, and representative have an unqualified right to request administrative review of the amount of the fee authorized under the fee agreement process, provided the request is filed timely (see I-1-2-44 B. in this section).

2. Decision Maker Requests Review

The decision maker may request administrative review of the amount of the fee authorized under the fee agreement process only when there is evidence that the representative did not represent the claimant's interest adequately, or that the fee is clearly excessive in light of the services provided.

Examples:

• The claimant appointed a representative to pursue her 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 to the claimant of two months' retroactive benefits. The administrative law judge (ALJ) who approved the fee agreement requested reduction of the amount of the fee because the representative failed to represent the claimant's interest adequately.

• An ALJ found the claimant entitled to a period of disability and to disability insurance benefits after a hearing at which the claimant was unrepresented. Before the favorable decision was issued but after the hearing, the hearing office received an appointment of representative and a fee agreement specifying a fee of the lesser of 25 percent of past-due benefits or $6,000. The ALJ approved the fee agreement because it met the statutory conditions and no exception applied. However, after reviewing a copy of the claimant's Notice of Award, the ALJ requested a reduction of the fee amount because the authorized fee was clearly excessive for the services involved, which consisted of meeting with the claimant and requesting a copy of the hearing recording.

1. Hearing Level

If the claimant, affected auxiliary beneficiary, eligible spouse, or representative requests administrative review of the fee authorized based on a fee agreement approved by an ALJ or attorney advisor, the ALJ or attorney advisor who issued the favorable decision will conduct the review.

If the claimant, affected auxiliary beneficiary, eligible spouse, or representative and the ALJ or attorney advisor, as the decision maker, request administrative review, the reviewing official is the RCALJ with jurisdiction over:

• the claimant's servicing hearing office, or

• in cases handled at a National Hearing Center, the hearing office with jurisdiction over the claimant's address.

The RCALJ takes a single action resolving all the issues raised in the requests for administrative review. This applies even if the decision maker's request was untimely.

2. Appeals Council Level

If the claimant, affected auxiliary beneficiary, eligible spouse, representative, or AAJ requests administrative review of the fee authorized based on a fee agreement an AAJ approved, the Deputy Chair of the AC will conduct the review. If more than one of these persons requests review, the Deputy Chair of the AC takes a single action resolving all the issues raised in the requests for administrative review. This applies even if the AAJ's request was untimely.

1. Informing the Parties

The reviewing official must:

• acknowledge receipt of the request for administrative review;

• notify all other parties of the request, including the decision maker if he or she is not the reviewing official or the party who requested administrative review; and

• afford the other parties 15 days to submit written information responding to the request for administrative review.

See I-1-2-46 C. for guidance on the notice content.

2. Notifying Effectuating Components

In cases in which SSA has not already made direct payment and released all past-due benefits, the reviewing official also must notify the decision-effectuating component(s) that SSA has received a request for administrative review.

• For title II claims, the effectuating component is the processing center (PC) as defined in I-1-2-2 D. To notify a PC, use the Fax Cover Sheet at I-1-2-114 B.

• For title XVI claims, the effectuating component is the field office (FO).

3. Notifying a Representative Who Filed a Fee Petition After SSA Authorized a Fee Under the Fee Agreement Process

If the representative files a fee petition within 15 days after receiving SSA's notice of the fee amount authorized based on an approved fee agreement, and asks for a higher fee than that shown in the notice, the ALJ or attorney advisor who issued the favorable decision, or the Deputy Chair of the AC when the AC issued a favorable decision and an AAJ approved the fee agreement, must advise the representative that:

• the request cannot be processed as a fee petition because SSA has already authorized a fee based on the fee agreement and, as provided in section 206(a) of the Social Security Act, the two fee processes are mutually exclusive; and

• the fee petition will be deemed a request for administrative review of the fee amount based on an approved fee agreement, and not a request for an additional fee under the fee petition process.

If the representative files the fee petition after the period for filing a timely request for administrative review has expired, see I-1-2-41 C.

1. SSA Has Authorized the Total Fee Under the Fee Agreement Process

The reviewing official must consider the total fee for all services when reviewing a request for administrative review of the authorized fee.

2. SSA Has Not Authorized the Total Fee Under the Fee Agreement Process

When a party requests administrative review and SSA has not authorized the total fee under the agreement, the reviewing official must:

• ask the effectuating component(s) to authorize a fee as quickly as possible, notify all parties, and send a copy of the fee authorization to the reviewing official;

• notify the parties that the reviewing official cannot work on the request until SSA authorizes the total fee; and

• defer conducting the review until receiving notice of the outstanding fee amount(s).

Example:

In a concurrent claims case favorably decided at the hearing level, the claimant timely requests administrative review of the title II fee amount, which is less than $6,000. However, the FO has not yet authorized and notified the parties of the title XVI fee. The HO staff member contacts the FO and asks for action to set the title XVI fee and to send the ALJ a copy of the fee notice. At the same time, the ALJ informs the claimant and representative in the notice acknowledging receipt of the request for administrative review that she will conduct the review after the FO has authorized the title XVI fee. The HO then diaries the request for receipt of the title XVI fee notice.

3. Affected Auxiliary Beneficiary or Eligible Spouse Objects to Sharing in the Fee Payment

If an auxiliary beneficiary who did not appoint his or her own representative objects to sharing in the fee payment or alleges that the representative did not represent him or her, notify the parties that:

• the representative in the case provided services that helped establish benefits for other beneficiaries on the record; and

• SSA does not modify a fee solely because an auxiliary beneficiary considers unfair his or her sharing in payment of the authorized fee.

For more information, see POMS GN 03920.035 D. and Hopkins v. Cohen, 390 U.S. 530 (1968), reproduced as Social Security Ruling 68-61c (C.E. 1968).

If an eligible spouse who did not appoint his or her own representative, and whose SSI benefits increased or who became eligible for SSI as a result of the claimant's eligibility, objects to sharing in the fee payment or alleges that the representative did not represent him or her, notify the parties that the claimant's representative provided services that helped establish or increase his or her benefits.

For more information, see POMS GN 03920.036 B.2. and GN 03920.036 C.