I-1-2-48.Administrative Review of the Amount of the Fee Under the Fee Agreement — Determination Notice Procedures

Last Update: 1/28/03 (Transmittal I-1-44)

After following the procedures in I-1-2-46 and I-1-2-47, issue the notice of the administrative review determination. Refer to I-1-2-111 for administrative review determination sample language.

A. Prepare Determination Letter

The notice of the administrative review determination will include:

  1. Authority for administrative review:

    • for title II cases, § 206(a)(3) of the Social Security Act, as amended; or

    • for title XVI only cases, or concurrent titles II and XVI cases, §§ 206(a)(3) and 1631(d)(2) of the Social Security Act, as amended.

      NOTE:

      The regulations setting forth authority for administrative review of fees determined under the fee petition process do not apply to fees determined under the fee agreement process.

  2. Response to the issue(s) raised.

  3. Statement as to whether we affirmed or modified the amount of the fee and our reasons for doing so.

  4. The amount of the fee we determined on review.

  5. If the fee is reduced:

    1. And the representative is an attorney who received direct payment, advice that the processing center (PC) will advise the claimant and the representative of the amount the representative must refund to SSA and the amount SSA will refund to the claimant.

      NOTE:

      Because payment actions that are not always known in the ODAR offices take place in the PC, the PC will compute these amounts, taking into consideration any adjustments to the amount of the claimant's past-due benefits, the initially authorized fee, the initial user fee, the fee set on review, and the user fee based on the fee set on review.

    2. And the representative is a non-attorney or an attorney who waived direct payment, advice on the amount the representative must refund to the claimant, if the claimant has already paid the representative the fee amount initially authorized.

    Example:

    The ALJ found the claimant entitled to disability insurance benefits and a period of disability. The fee amount initially authorized based on the fee agreement was $4,500. After the claimant filed a request for administrative review, the ALJ lowered the fee to $3,200.

    Scenario 1: After the initial authorization, SSA sent the attorney a direct payment of $4,216.50, the amount of the $4,500 fee less the $283.50 user fee. After the ALJ lowered the fee, assuming that the claimant's past-due benefit amount did not change, the amount then actually due the attorney is $2,998.40, $3,200 - $201.60, the user fee based on the $3,200 fee amount. SSA will send the claimant $1,300 ($4,500 - $3,200).

    However, the ODAR staff will not attempt to determine the amounts SSA will refund to the claimant or the amount the attorney must refund to SSA. Accordingly, the ALJ will advise the claimant of the revised fee amount and that the Office of Disability Operations will advise him/her and the representative how this will affect the amount the claimant is entitled to receive from his/her past-due benefits and the attorney's fee payment.

    Scenario 2: If the claimant paid the fee to the representative, advise the representative to refund $1,300 to the claimant ($4,500 - $3,200).

    NOTE 1:

    If the Administrative Law Judge (ALJ) or Administrative Appeals Judge (AAJ) requested review, the reviewing official must prepare a letter to the claimant, with a copy to the attorney, to transmit the determination letter. The reviewing official will include the advice in a) or b) above in the transmitting letter. See I-1-2-111(F.2.).

    NOTE 2:

    If the fee is increased and the representative is an attorney who received the previously authorized fee from withheld benefits, do NOT advise the representative that SSA will make the additional payment without first determining that the PC is continuing to withhold the claimant(s)' past-due benefits.

  6. A statement that the determination is not subject to further review and the statutory basis:

    • For title II cases, § 206(a)(3)(C) of the Social Security Act, as amended.

    • For title XVI only, or concurrent titles II and XVI cases, §§ 206(a)(3)(C) and 1631(d)(2)(A) of the Social Security Act, as amended.

  7. A statement that copies of the determination are going to the named parties.

B. Distribute the Determination

  • Send copies of the determination to the claimant, affected auxiliary beneficiary(ies) (except those who reside with the claimant) and the representative at their last known addresses. The reviewing official must also mail a copy of the notice to the decision maker when the decision maker requested review or commented on the review.

    (See I-1-2-46(C.1.) above for Privacy Act considerations.)

  • Place a copy of the determination in the Regional Office or hearing office file (or appeals file in OAO).

  • Send the determination and the claim file(s) to the component(s) that effectuated the favorable decision.

C. Systems Input

Update the case tracking system to reflect the administrative review determination to the extent that the system allows for the entries.