Last Update: 1/28/03 (Transmittal I-1-44)
When a claimant, affected auxiliary beneficiary, representative, or decision maker disagrees with the Social Security Administration's (SSA's) fee determination under a fee agreement, he/she may protest that determination by requesting an administrative review.
The party requesting administrative review must do so in writing within 15 days of receiving the notice of the determination authorizing the amount of the fee. In the absence of evidence to the contrary, assume receipt within 5 days of the date of the notice. In foreign cases, assume receipt within 14 days of the date of the notice.
NOTE:
If the representative files a fee petition within 15 days of receiving SSA's notice of the fee amount, and asks for a higher fee than that shown in the notice, the Administrative Law Judge (ALJ) or Administrative Appeals Judge (AAJ) who approved the fee agreement will:
advise the representative that he/she cannot process the request as a fee petition because SSA has 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
deem the fee petition to be a request for administrative review of the fee amount determined under the fee agreement, not a request for an additional fee under the fee petition process.
If the representative files the fee petition beyond the period for filing a timely request for administrative review, refer to I-1-2-41(C.).
A claimant, affected auxiliary or representative has an unqualified right to request administrative review of the amount of the fee approved under the fee agreement process.
A decision maker may request administrative review only when there is evidence that the representative did not represent the claimant's interests adequately, or that the fee is clearly excessive in light of the services provided.
The following officials are delegated the authority to conduct administrative review of the fee amount determined under the fee agreement:
| Individual Requesting Review | Reviewing Official |
|---|---|
| Claimant, an affected auxiliary or the representative | ALJ |
| ALJ | Regional Chief ALJ (RCALJ) who has jurisdiction over the claimant's servicing hearing office (HO) |
| Regional Chief ALJ | Deputy Chief ALJ or Chief ALJ |
If the claimant or representative requests administrative review of the fee authorized based on a fee agreement an ALJ approved, the ALJ who made the favorable determination will conduct the review. Upon completion of the review, the ALJ shall affirm or modify the amount that would otherwise be the maximum fee (i.e., he/she may review the fee amount and authorize a reasonable fee, affirming, lowering or raising the original fee).
If the ALJ with jurisdiction over the request for administrative review is unavailable for a period of 30 days or more, to avoid inordinate delays in processing the request, the HO Chief ALJ will review the request and make a determination or delegate that responsibility to another ALJ.
| Individual Requesting Review | Reviewing Official |
|---|---|
| Claimant, an affected auxiliary, or representative | Attorney Fee Officer in the Attorney Fee Branch |
| AAJ | Deputy Chair, Appeals Council (AC) |
| Deputy Chair, AC | Chair, AC |
NOTE:
If the claimant or representative and the ALJ or AAJ, as the decision maker, request administrative review, the reviewing official is the RCALJ or the Deputy Chair, AC, respectively. The RCALJ or Deputy Chair issues a single determination resolving all the issues raised in the requests for administrative review. This applies even if the reviewing official will not act on the decision maker's request because it was untimely.
The reviewing official must:
acknowledge receipt of the request for administrative review;
notify all other parties of the request, including the decision maker, unless the reviewing official was the decision maker or the decision maker requested administrative review; and
afford them 15 days to submit written information responding to the request.
Refer to I-1-2-46(C.) for guidance on the notice content.
To attempt to prevent the release of past-due benefits (in cases in which SSA has not already made direct payment and released excess past-due benefits), the reviewing official also must notify the decision effectuating component that SSA has received a request for administrative review. To notify a processing center, use the Fax Cover Sheet at I-1-2-114(B.)
The review mechanism enables the Commissioner to redress situations in which the fee set under the agreement does not represent reasonable compensation for the services provided in the case. It does not compel changes to the fee set under the agreement. The reviewing official will review the authorized fee and set a reasonable fee, affirming, lowering or raising the original fee, when through a request for administrative review:
the claimant, an affected auxiliary or the representative expresses dissatisfaction with the amount of the fee; or
the decision maker has presented evidence that establishes either that the representative did not represent the claimant's interest adequately or the fee is clearly excessive in light of the services provided.
NOTE:
Refer to I-1-1-40 for rules governing the conduct of representatives and I-1-1-50 for information on processing an alleged violation, if a conduct or violation issue is raised.
Examples:
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. Just before the hearing office issued the favorable decision, it received the claimant's appointment of representative and a fee agreement specifying a fee of the lesser of 25 percent of past-due benefits or $5,300. The ALJ approved the fee agreement because it met the statutory conditions and no exception applied. After reviewing a copy of the claimant's Notice of Award, the ALJ requested a reduction of the amount of the fee because the fee under the agreement was clearly excessive for the services involved, which consisted of meeting with the claimant, reviewing the initial and reconsidered decision, and requesting a copy of the hearing cassette.
The claimant appointed a representative to pursue her claim and signed the fee agreement two months before the representative filed, on her behalf, a letter of intent to claim benefits. This delay resulted in a loss of two months' retroactive benefits. The ALJ who approved the fee agreement requested a reduction of the amount of the fee because the representative failed to represent the claimant's interest adequately.
The reviewing official must consider the total fee for all services when reviewing a request for administrative review of the determination of the fee amount.
Concurrent claims involving a common issue (e.g., disability):
Consider the fee amounts based on the past-due benefits resulting from both the titles II and XVI claims.
Title II claims involving one or more auxiliaries:
Consider the fee amount based on the past-due benefits of the primary claimant and any affected auxiliary(ies).
When a party requests administrative review and SSA has not determined the total fee under the agreement, the reviewing official must:
ask the effectuating component to expeditiously make a fee determination, notify all parties and send a copy of the fee determination to the reviewing official;
notify the parties that he/she cannot work on the request until SSA determines the total fee; and
defer conducting the review until receiving notice of the outstanding fee amount(s).
Example:
In a concurrent claims situation favorably decided at the hearing level, the claimant timely requests administrative review of the title II fee amount, which is less than $5,300. The field office (FO) has not yet determined and sent notice of the title XVI fee. The HO staff member contacts the FO and asks that they determine the title XVI fee and send the ALJ a copy of the notice. At the same time, the ALJ notifies the claimant and representative when acknowledging receipt of the request for administrative review that she will conduct the review after the FO has determined the title XVI fee. The HO then diaries the request for receipt of the title XVI notice.
If an affected auxiliary beneficiary objects to sharing in the fee payment and/or alleges that the representative did not represent him/her, notify the parties that:
the representative in the case provided services that helped establish benefits for all beneficiaries on the record; and
SSA does not modify a fee solely because an affected auxiliary beneficiary considers unfair his/her sharing in payment of the approved fee [see Hopkins v. Cohen, 390 U.S. 530 (1968), reproduced as Social Security Ruling SSR 68-61c (C.E. 1968)].
The reviewing official must mail a written notice of the determination made on administrative review to:
the claimant, affected auxiliaries (except those who reside with the claimant), and the representative, at their last known addresses, and
the decision maker when the decision maker requested review or commented on the review.
The notice will advise the parties that the determination is not subject to further review.
Refer to I-1-2-46(C.) for information on the notice content.