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SOCIAL SECURITY ADMINISTRATION
Office of Hearings and Appeals

HALLEX
Volume I

Transmittal No. I-5-1-9

Division 5: Temporary Instructions

Subject: OBRA 1990 - Representative Fee Approval Process

Background

Pub. L. No. 101-508 directed the Secretary to implement a new representative fee approval process and to change the way the Social Security Administration (SSA) computes past-due benefits. The new process does not entirely replace the fee petition process. Therefore, effective with claims decided on or after July 1, 1991, SSA has two methods of approving representative's fees: the fee petition process described in I-1-200 et seq. and the fee agreement process described in these instructions.

Explanation of Content and Changes

We are reissuing Temporary Instruction (TI) 5-109. The TI describes the fee agreement process and provides instructions for processing a fee agreement. It also provides instructions for processing requests for administrative review of the disapproval of a fee agreement and review of the amount of the fee under an approved agreement.

We have also included attachments that clarify, in question and answer format, procedures for processing a fee agreement and requests for administrative review.

The TI contains the following specific changes:

We lessened comment periods from 20 to 15 days.

III. A.: We explained that a fee agreement may contain language limiting its terms to specific levels of the administrative appeals process. We added a note to explain that all references to the request for review level also include administrative actions before the Appeals Council after court remand.

IV. A. 1. c.: We added a note to explain that SSA will not approve a fee agreement that specifies a minimum fee.

IV. A. 2. d.: We clarified that the exception pertains to mental incapability and that the person responsible for the care of a mentally incapable claimant may sign the fee agreement. We added a note to explain that the exception does not apply when direct payment to a claimant is precluded solely because of a finding of disability based on drug addiction or alcoholism.

IV. A. 2. e.: We deleted the exception pertaining to court cases.

IV. B. 1. b. and B. 2. b.: We explained that in certain situations the Chair, Appeals Council, is the reviewing official.

IV. B. 2. a.: We defined what we mean by an “affected” auxiliary beneficiary and “prima facie” evidence.

IV. B. 2. d.: We clarified that when an individual requests review of the determination of the amount of a fee, the review mechanism enables SSA to redress situations involving unreasonable compensation for the services provided in the case, but does not compel changes to the fee.

IV. B. 2. e.: We expanded the instructions to show that when concurrent titles II and XVI claims involving a common issue or affected auxiliary beneficiaries are involved, the reviewing official must wait until SSA has set the total fee before proceeding with the review.

IV. B. 2. f.: We changed the instructions so the decision maker receives a copy of the determination on review, unless he or she is the reviewing official.

V. C. 1. c. and VI. F. 1. c.: We clarified that the Administrative Law Judge (ALJ) or Administrative Appeals Judge (AAJ) will ask for a copy of the notice when he or she contemplates requesting review of the amount of a fee.

V. C. 2. a., b., and c.: We expanded the instructions to show that the hearing office (HO) staff must: keep a copy of the fee agreement and order in the HO file; enclose a fee petition with the representative's copy of an order disapproving a fee agreement; and include the original fee agreement and a copy of the order in the claim(s) file.

V. E. and VI. F. 2.: We changed the instructions to show that ALJs and AAJs may send their requests for administrative review directly to the reviewing official, but must send a copy to the Attorney Fee Branch (AFB).

VI. B. 1.: We changed the instructions to show that the Docket and Files Branch (DFB) must date stamp the fee agreement when received.

VI. C. 1. a.: Because the DFB will do so, we deleted the instruction to date stamp the fee agreement.

VI. C. 1. b.: We corrected the HALLEX reference.

VI. E. 2.: We reorganized the instructions to enhance readability.

VI. E. 4.: We changed the instructions to reflect that a claimant or representative will send the original request for administrative review to the AFB, but a decision maker will send only a copy of the request.

VI. F. 1. c.: We changed the HALLEX cross-reference.

VI. G.: We added instructions for the appeals technician.

VII. A. 2.: We changed the instructions to show that the receiver must acknowledge the request for administrative review and inform the requester that we are forwarding the request to the reviewing official.

VII. B. 1.: We defined the parties to a request for administrative review of a disapproval of a fee agreement.

VII. B. 3. and VIII. B. 4. a.: We expanded the instructions to show that we will not recontact the requester for an explanation of late filing when the diary period expires and that we may contact the other parties concerning the late filing explanation.

VII. D. 2.: We clarified that we must consider whether any exceptions apply at the time the decision maker made the favorable decision, or if later, disapproved the fee agreement.

VII. E. 1. b.: We added a note that when the prior disapproval is affirmed, the notice must remind the representative(s) to request approval of a fee.

VII. E. 3.: We added instructions to show that the Regional Office (RO), HO, or Appeals Council must retain a copy of the determination in the RO, HO, or appeals file.

VII. E. 5. and VIII. I. 5.: We changed the address for receipt of information for assessment purposes.

VIII.: We expanded the instructions from five to nine subsections, to clarify the procedures for reviewing the amount of the fee under the fee agreement.

VIII. B. 1.: We defined the parties to a request for administrative review of a fee under a fee agreement.

VIII. B. 3.: We provided procedures for handling a decision maker's request for administrative review of the fee amount including situations when he or she has not presented prima facie evidence, but there is a clear clerical error involved.

VIII. B. 4. b.: We provided procedures for handling a party's objection to, or an apparent error in, the calculation of a fee or the calculation of the past-due benefits.

VIII. B. 4. c.: We provided procedures for cases for which SSA has not set the total fee.

VIII. B. 5.: We added a note showing that we will not review a decision maker's untimely request for administrative review, unless the decision maker submits information with the request establishing good cause for late filing.

VIII. E. 2.: We added instructions to show that when a reviewing official proposes to reverse the approval of a fee agreement, he or she will provide notice and the opportunity to comment.

VIII. E. 3.: We added instructions to show that when the prior approval is reversed, the notice must inform the representative(s) to request approval of a fee and inform an attorney representative to request approval within 60 days in order to receive direct payment.

VIII. F. 2.: We added instructions to show that when the reviewing official proposes to modify the amount of a fee consistent with the terms of the agreement, he or she will provide notice and the opportunity to comment.

VIII. F. 3.: We listed the factors the reviewing official will consider in assessing whether the fee determined under the fee agreement process is reasonable.

VIII. G.: We expanded the explanation of how and when to request an explanation of services and time spent from the representative.

VIII. H.: We explained that in considering whether the fee is reasonable, the reviewing official will first determine a range within which a fee would be considered reasonable.

VIII. H. 2.: We added a note to clarify that the fee authorization limits remain the same under the fee agreement process.

VIII. H. 2.: We added a note to clarify that when a party timely requests administrative review, SSA determines the fee based on the past-due benefit amount which exists at the time the reviewing official makes the determination on review.

VIII. I.: We expanded the citations to include title XVI and Part B black lung cases.

Exhibits 2 and 4: We revised the language to be consistent with the conditions and exceptions shown in the policy section. In exhibit 4, we also changed the review paragraph language consistent with the review paragraph used in non-Office of Hearings and Appeals notices. Further, we added language to Exhibit 4 to indicate that a fee petition is enclosed with the representative's copy.

Exhibit 5: We changed the memorandum to reflect that the ALJ or AAJ may send the request directly to the reviewing official.

Remove

Remove Temporary Instruction (TI) 5-109, issued June 24, 1991.

Insert

Insert TI-5-109, issued September 09, 1992.

Date: September 9, 1992