I-1-2-25.Fee Agreement Approval or Disapproval
Last Update: 6/6/17 (Transmittal I-1-88)
A. Receipt of a Fee Agreement
When a hearing office (HO), National Hearing Center (NHC), or the Office of Appellate Operations (OAO) receives a fee agreement, designated support staff will date stamp the document received (if received by mail) and ensure the claim(s) file has a form SSA-1696 (Appointment of Representative), or other equivalent writing appointing the representative. For more information about appointments, see Hearings, Appeals and Litigation Law (HALLEX) manual I-1-1-11.
A fee agreement may constitute a valid appointment of representation if the fee agreement meets the requirements for an equivalent written statement of appointment. See HALLEX I-1-1-11 A.
If there is not a valid appointment of representation in the claim(s) file, support staff will contact the person who signed the fee agreement as the representative to address the issue.
If the representative has been properly appointed, support staff will ensure the fee agreement has been signed by both the claimant and representative and take all necessary actions to associate the document with the claim(s) file. Support staff will then ensure all necessary entries regarding representation and the fee agreement are made in the hearing level Case Processing and Management System (CPMS) or the appeals level Appeals Review Processing System (ARPS). At the hearing level, support staff will also follow the HO electronic business process rule 1.2.C.2. For paper claim(s) files only, hearing level or OAO staff will annotate the form SSA-1128 (Representative Involved) with pertinent information and staple it to the outside lower right corner of the claim(s) file.
B. Action on Fee Agreement
An administrative law judge (ALJ) or the Appeals Council (AC) only acts on a fee agreement when issuing a fully or partially favorable decision. See HALLEX I-1-2-6 B or I-1-2-6 C.1. The adjudicator will approve or disapprove the fee agreement using the statutory conditions set forth in HALLEX I-1-2-12, sending notice of the action to the claimant and representative. See HALLEX I-1-2-17.
At the AC level, only the A member administrative appeals judge (AAJ) acts on the fee agreement. See HALLEX I-1-2-6 C.1.
If an appointed representative waives the right to charge and collect a fee, but also submits a fee agreement, the adjudicator will leave the fee agreement in the claim(s) file but will not approve or disapprove the fee agreement. To illustrate, in very limited circumstances, an appointed representative may charge and collect a fee from a third party without the Social Security Administration's authorization. See 20 CFR 404.1720(e)(1) and 416.1520(e)(1). However, in order for these terms to apply, the representative must waive the right to charge and collect a fee from the claimant or any auxiliary beneficiaries. See HALLEX I-1-2-5 and POMS GN 03920.010 B.2. If a representative submitted a fee agreement in these circumstances, the adjudicator would leave the fee agreement in the claim(s) file but, if issuing a favorable decision, would not act on the fee agreement because of the fee waiver.
Typically, the adjudicator will send notice of the action on the fee agreement with the decision on the claim(s). However, if the adjudicator has already released the decision when the fee order is ready to send, support staff will mail the order to the claimant and representative separately, faxing a copy to the effectuating component. Support staff will also ensure a copy of the fee order is associated with the claim(s) file.
Before closing the case, support staff will make all appropriate CPMS or ARPS entries regarding the fee agreement.
C. Adjudicator Approves Fee Agreement but May Disagree With Authorized Fee Amount
If the adjudicator approves the fee agreement but believes a request for administrative review of the amount issued under the fee agreement may be appropriate (see HALLEX I-1-2-44 and I-1-2-45), the adjudicator will ask support staff to set a diary to obtain a copy of the Notice of Award or other notification about the fee amount.
At the AC level, the B member AAJ may also request review of the authorized fee amount, even though he or she did not approve the fee agreement.
Support staff can obtain a copy of the notice by checking the Online Retrieval System but will set relatively short diary dates to follow up, as the adjudicator must submit a request for administrative review of the fee amount within 15 days of receiving the notice. See HALLEX I-1-2-44 and I-1-2-45 for more information about the procedures for administrative requests for review. On receipt, support staff will immediately deliver the notice to the adjudicator so that he or she can determine whether to submit a request for administrative review of the fee amount.
D. Representative or Claimant Does Not Receive Fee Order
If the adjudicator issued a fee order approving or disapproving the fee agreement, but a representative or claimant indicates he or she did not receive a copy, support staff will send the representative and claimant another copy of the order. Support staff will also confirm with the effectuating component that it received a copy of the fee order. After completing these actions, staff will generally document the actions taken in a Remark in the applicable case processing system.
If the representative or claimant did not receive a fee order, because the adjudicator did not issue a fee order approving or disapproving the fee agreement, and there is a fee agreement in the file, the adjudicator will evaluate whether the representative timely filed the fee agreement:
If the representative filed the fee agreement with the Social Security Administration before the date of the favorable decision, the fee agreement is timely filed, and the adjudicator must approve or disapprove the fee agreement after considering the other statutory conditions (see HALLEX I-1-2-12).
If the representative filed the fee agreement after the date of the favorable decision, the statutory conditions for approval are not met (see HALLEX I-1-2-12), and the adjudicator must disapprove the fee agreement.
If the representative or claimant did not receive a fee order, because there is not a fee agreement in the file, support staff can ask the representative to submit a copy of the fee agreement with any documentation showing when it was submitted.
If the representative submits a fee agreement and shows it was timely submitted, the adjudicator must approve or disapprove the fee agreement after considering the other statutory conditions (see HALLEX I-1-2-12).
If the representative submits a fee agreement, but is unable to show the fee agreement was timely submitted, the adjudicator will disapprove the fee agreement.
If the representative is unable to produce a fee agreement, support staff will inform the representative that he or she must file a fee petition if he or she wants to request a fee.