I-1-2-46.Administrative Review of the Amount of the Fee Under the Fee Agreement Process — Procedures

Last Update: 4/12/21 (Transmittal I-1-101)

A. Examine the File and Request for Administrative Review

1. Authority to Conduct Administrative Review

Determine who has the authority to act on the request for administrative review (see Hearings, Appeals and Litigation Law (HALLEX) manual I-1-2-44 C).

If you have authority, review the file and proceed with development or review.

If you do not have authority:

  • Acknowledge receipt of the request, advising the requester that you are referring the request to the individual with authority to conduct the review.

  • Forward the request to the individual with authority. Refer to HALLEX I-1-2-105 for sample language.

2. Review Parties, Pertinent Documents, and Timely Filing

Identify:

  • all parties (i.e., the claimant or the individual whom we recognize as having the authority to sign the fee agreement on the claimant's behalf, any affected auxiliary, an eligible spouse under Title XVI, the representative(s), and the decision maker);

  • the fee agreement;

  • the fee agreement approval;

  • the determination of the fee amount;

  • evidence showing inadequate representation or a clearly excessive fee, OR evidence of fee calculation error; and

  • the issues to be resolved.

Screen the request for administrative review for:

  • timely filing;

  • proper party; and

  • the need for action on any other issue(s) raised.

NOTE:

If the claimant did not contact the effectuating component but included an objection to the fee agreement or fee amount in his request for administrative review, consider such an objection as an implied request for reconsideration of the initial determination of the past-due benefits amount and forward that request to the effectuating component.

3. Criteria When the Decision Maker Requested Administrative Review

When a decision maker requested the administrative review, decide whether evidence shows either 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:

  1. The representative delayed the claim(s) by procedural missteps or by repeatedly requesting extensions of time to submit readily available information or evidence.

  2. The administrative law judge (ALJ) was ready to issue a favorable decision when the Social Security Administration (SSA) received a claimant's appointment of representative and fee agreement. The $3,700 fee that resulted from the approved agreement may be excessive for the time it took the representative to interview the claimant and complete and submit an appointment of representative and a fee agreement.

NOTE:

If the decision maker raises issues of representative misconduct or another violation by the representative, see HALLEX I-1-1-40 for rules governing the conduct of representatives; see HALLEX I-1-1-50 for information on referring an alleged non-fee violation or HALLEX I-1-2-81 for information on referring an alleged fee-related violation. If fraud or criminal behavior is suspected, see HALLEX I-1-3-6.

a. Decision Maker Review Criteria Met

If the evidence shows inadequate representation or a clearly excessive fee, proceed with development or review.

b. Decision Maker Review Criteria Not Met

If the evidence does not show inadequate representation or a clearly excessive fee and there is no clear clerical error, send a letter telling the decision maker that:

  • you did not find evidence of inadequate representation or a clearly excessive fee;

  • SSA will not review the authorization; and

  • the fee authorized for the representative's work in the case is final.

Send copies of the letter to the other parties. Take no further action on the request.

Refer to HALLEX I-1-2-111 E for a sample letter to the decision maker denying review of the fee amount.

c. Evidence Shows Clerical Error Only

If you do not find evidence of inadequate representation or a clearly excessive fee, but there is a clear clerical error involved (see HALLEX I-1-2-47 A.1.c), send a letter telling the decision maker that:

  • you did not find evidence of inadequate representation or a clearly excessive fee;

  • SSA will not review the fee authorization;

  • you are notifying the effectuating component that a clear clerical error has been made; and

  • you are requesting the effectuating component to release a corrective notice(s) with new administrative review rights.

Send copies of this letter to the other parties and notify the effectuating component(s) of the need for corrective action.

B. Initiate Additional Development

1. Request Not Timely Filed

  • If the requester, other than a decision maker (see NOTE below), did not provide a reason(s) for late filing (see HALLEX I-1-2-41 C), obtain an explanation.

  • You may modify the letter acknowledging receipt of the request for administrative review, described in subsection C, below, to ask for additional information.

  • Ask for a response within 15 days and diary the case for 30 days. If you do not receive an explanation at the end of 30 days, proceed with additional development, if necessary, or send the letter described in subsection C.3, below.

NOTE:

If a decision maker does not timely request administrative review, the reviewing official will not review the fee authorization unless the decision maker submits, with the request, information that establishes good cause for late filing (See POMS GN 03960.25A.1 for additional related guidance).

2. Issues with Calculation of Fees

If the party requesting review has objected to the calculation of the fee under the agreement or the amount of the past-due benefits or there is an apparent error in the calculation shown in the notice of the fee amount, ask the processing center (PC) or the field office (FO) for the following information:

  • Completed form SSA-1129-U3, “Attorney Fee Case – Past-due Benefit Summary,” in title II cases;

  • An explanation of proration of withheld past-due benefits, if there are one or more auxiliary beneficiaries living in a household separate from the claimant;

  • Supplemental Security Income Display (SSID), with the complete computation history, or the manually completed computation form in a title XVI claim;

  • A brief narrative explanation if an unusual situation is involved or the reviewing official anticipates difficulty following the computation.

3. Concurrent Titles II and XVI Claims Involved

Ascertain whether SSA has determined the total fee for all services under the fee agreement when the request involves concurrent title II and title XVI claims involving a common issue or one or more delayed affected auxiliaries. If SSA has not determined the total fee:

  • Contact the effectuating component (see HALLEX I-1-2-44 D.2 for effectuating component information) and ask for an expeditious fee determination, with notice to all parties and to you.

  • Notify the parties when you acknowledge receipt that you cannot conduct the review until SSA determines the total fee.

  • Diary the request for 30 days, unless the effectuating component indicates that outstanding development will require a longer diary period, to obtain notice of the fee determination. If you have not received notice of the total fee at the end of the diary period, send a written follow-up to the module manager in the PC or the office manager in the FO.

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 field office has not yet calculated the past-due benefits on the title XVI claim. Hearing office staff contacts the field office 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 field office determines the title XVI fee. The hearing office then diaries the request for receipt of the title XVI fee notice.

C. Provide Notice of the Request for Administrative Review

Prepare a notice of the request for administrative review. Refer to HALLEX I-1-2-109 for sample language relevant to the specific circumstances of the request.

1. Timely Filed Request

  • Prepare a letter telling the requesting party that we:

    • received his or her request;

    • are notifying the other parties;

    • are giving the other parties the opportunity to comment or submit additional information; and

    • if appropriate, will not conduct the review until SSA has determined the total fee under the fee agreement.

  • Prepare letters informing the other parties:

    • who requested administrative review;

    • that they may, within 15 days, comment in writing and submit relevant information; and

    • if appropriate, we will not conduct the review until SSA has determined the total fee under the fee agreement.

  • Enclose copies of the request for administrative review. Because of Privacy Act considerations, do not reveal:

    • The claimant's mailing address when sending a copy of a letter addressed to the claimant or the claimant's request for administrative review, to a party other than the claimant's representative or the decision maker.

    • The auxiliary beneficiary's mailing address when sending a copy of a letter addressed to the beneficiary, or the beneficiary's request for administrative review, to a party other than that beneficiary's representative or the decision maker.

    This means the address must be covered before photocopying or completely blocked out before mailing.

  • Send the notice and enclosures and diary the case for 30 days.

2. Late Filing -- Good Cause Shown

If the requester submits the reason(s) for late filing with the request for administrative review, and you find good cause for the late filing, prepare a brief explanation of the good cause finding to include in the notice described in C.1, above. Refer to HALLEX I-1-2-107 for sample late filing language.

3. Late Request or Request by Improper Party

If the request was not timely filed and you do not find good cause for the late filing based on the explanation provided with the request for administrative review or during development (see HALLEX I-1-2-41 C), or the request was not filed by a proper party, prepare a letter telling the requester:

  • the reason(s) for deciding that he or she did not show good cause or that he or she is not a proper party; and

  • that we will not act on the request for administrative review of the determination for that reason.

Send copies of the letter to the other parties.

Refer to HALLEX I-1-2-106 for sample language to use when denying a request for administrative review based on improper party or good cause for late filing not found.

D. Follow up for Requested Information

After the thirty-day diary has expired, follow up for any additional information you requested but have not received. Notify the party that if you do not receive the requested evidence within 15 days, you will make a determination on the request for administrative review based on the information in file. Diary the case for another 30 days. When the office receives the information or when the diary expires, proceed with the process described in subsection E, below.

E. Review the Fee Agreement Approval

1. Decision Maker's Approval Determination was Correct

Review the decision maker's fee agreement approval to determine if the approval was correct. See HALLEX I-1-2-43 E for evaluation considerations. If the decision maker's approval determination was correct, proceed with determining the fee amount (see HALLEX I-1-2-47).

2. Decision Maker's Approval Determination Was Incorrect

a. Initial Actions

  • In the notices acknowledging the request for review (see C.1, above), explain to the parties that:

    • you, the reviewing official, plan to disapprove the fee agreement and why; and

    • they may, within 15 days, comment in writing and submit relevant information.

  • Diary the case for 30 days.

  • When the diary period expires or when all parties have commented, decide whether the decision maker's approval determination was correct, considering the fee agreement, comments, and relevant information received.

b. Reviewing Official Determines Fee Agreement Incorrectly Approved

  • Proceed as described in HALLEX I-1-2-43 F, modifying the notice to reflect the initial fee agreement approval.

  • Enclose form SSA-1560-U4, “Petition to Obtain Approval of a Fee for Representing a Claimant before the Social Security Administration,” and notify the representative that he or she must file a fee petition to request approval of any fee he or she wants to charge and collect. (See HALLEX I-1-2-1 C).

  • In a case involving withheld past-due benefits, inform a representative who is eligible to receive direct payment that within 60 days he or she must file the fee petition or file a written notice of the intent to do so in order to receive direct payment from the claimant's withheld past-due benefits.