I-1-2-43.Administrative Review of the Approval or Disapproval of the Fee Agreement — Procedures

1. Identify:

• All parties (i.e., representative(s) and the claimant or the individual whom SSA recognizes as having the authority to sign the fee agreement on the claimant's behalf (see HALLEX I-1-2-12A). Generally, an entity and its point of contact (POC) are not parties to the fee agreement. However, refer to HALLEX I-1-2-41 B, NOTE, for further information regarding the POC or another individual's right to file when the representative has died;

• The fee agreement; and

• The initial fee agreement determination.

2. Screen the request for administrative review for:

• Timely filing;

• Proper party; and

• The need for action on any other issue(s) raised (e.g., the claimant objects to a date established for disability or a date of birth determination).

3. Enter the pertinent information into the appropriate tracking system when the administrative review request is received and as it is processed to completion.

• If the review is conducted in the Office of Hearing Operations (OHO) Regional Office, use the Fee Action Tracking System (FAcTS).

• If the review is conducted in the Office of Appellate Operations (OAO), use the web Attorney Fee System (webAFS).

1. Late Filing - Requesting an Explanation

The reviewing official must obtain an explanation for the late filing of a request for administrative review if the requester did not provide a reason. The reviewing official may also wish to contact other parties, as appropriate, concerning the explanation. The reviewing official may modify the letter described in HALLEX I-1-2-43 D. below, which acknowledges receipt of the request for administrative review, to ask for additional information, including asking the requesting party to show good cause for a late filing. The reviewing official will ask for a response to the late filing within 15 days and diary the case for 30 days. If the reviewing official does not receive an explanation at the end of 30 days, proceed to HALLEX I-1-2-43 C.2. below.

2. Denial of Request - Late Filing or Filing by Improper Party

If the request was not timely filed and there is no basis to find good cause for the late filing based on the explanation (refer to 20 CFR 404.1720(d)(2)(ii) and 416.1520(d)(2)(ii) for examples of good cause), or the request was not filed by a proper party, the reviewing official must prepare a letter telling the requester:

• The reason(s) that the requester did not show good cause or is not a proper party; and

• No action will be taken, and the request for administrative review of the initial fee determination will be denied for that reason.

The reviewing official or staff must send copies of the denial letter to any other relevant parties and the decision maker using the appropriate notice template in the Hearings and Appeals Case Processing System (HACPS), FAcTS, or the Office of Appellate Operations Case Processing System (OAOCPS) and the sample denial language in HALLEX I-1-2-106. If the representative(s) validly assigned direct payment of their fee to an entity, do not send a copy to the entity's POC unless the POC was the improper party attempting to request administrative review or a representative who assigned direct payment of their authorized fee to an entity has died.

Because of Privacy Act considerations, do not reveal any Privacy Act protected information without applicable disclosure authority (e.g., consent, routine use, etc), including:

• The claimant's mailing address or Social Security number (SSN) 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 or SSN 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.

In these situations, the address and any other Privacy Act protected information must be completely blocked out before mailing.

1. Timely Filed Request or Untimely Request with Good Cause Shown

The reviewing official or staff will prepare and issue an acknowledgment letter using FAcTS or HACPS in OHO or OAOCPS in OAO, as appropriate, that:

• Informs the requesting party that the agency received the request;

• For untimely requests where good cause is found, includes a brief explanation of the good cause finding;

• Informs the requesting party that the requesting party may submit any additional information within 15 days;

• Informs the requesting party that the agency is notifying any other parties and the decision maker of the request for administrative review, and they will be given 15 days to comment in writing or submit additional information; and

• Informs the requesting party that the agency will make the determination on the request for administrative review based on the evidence in the file if we do not receive any additional information within 15 days.

The reviewing official or staff will also prepare and issue letters using the appropriate system informing any other parties and the decision maker:

• Of the request for administrative review;

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

• That the agency will make its determination on the request for administrative review based on the evidence in the file if it does not receive any additional information from any party within 15 days.

The reviewing official or staff will enclose a copy of the request for administrative review with each letter.

Because of Privacy Act considerations, do not reveal any Privacy Act protected information without applicable disclosure authority (e.g., consent, routine use, etc), including:

• The claimant's mailing address or SSN 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 or SSN 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.

In these situations, the address and any other personal information must be completely blocked out before mailing.

The reviewing official or staff will upload the letters and enclosures to the B section of eView or ENM include copies in the paper claim(s) file, and diary the case for 30 days.

1. Evaluation Considerations

• The reviewing official will consider whether the conditions for approving the fee agreement were met at the time the decision maker made the favorable decision (see HALLEX I-1-2-12 A).

• Consider whether any of the exceptions to the fee agreement process applied at the time the decision maker made the fully favorable or partially favorable decision or, if relevant, at the time of the disapproval of the fee agreement (see HALLEX I-1-2-12 B).

• Consider whether, when the decision maker approved the fee agreement, it contained any clause that restricted the circumstances under which the decision maker could approve it (i.e., a “two-tiered” fee agreement) (see HALLEX I-1-2-15).

2. Reversal of Disapproval Determination

If the fee agreement met all of the conditions in HALLEX I-1-2-12 A and none of the exceptions in HALLEX I-1-2-12 B applies, the reviewing official must reverse the previous disapproval determination and approve the fee agreement.

3. Reversal of Approval Determination

If the decision maker approved a fee agreement in error (e.g., approved a two-tiered fee agreement after the point in the administrative process when the agreement ceased to apply), the reviewing official must reverse the previous approval determination and disapprove the fee agreement.

Example 1:

An administrative law judge (ALJ) or administrative appeals judge (AAJ) disapproved a fee agreement because the representative did not sign it. Thereafter, the representative requests administrative review of the disapproval and submits another, signed copy of the fee agreement. The reviewing official will not reverse the fee agreement determination because the conditions of the fee agreement process were not met at the time the ALJ or AAJ issued the fully favorable or partially favorable decision.

Example 2:

The representative filed the fee agreement with a Social Security Administration (SSA) office on January 7, 2020. An ALJ in another SSA office issued a favorable decision on January 13, 2020. On January 17, 2020, the claimant was declared legally incompetent. Subsequently, the ALJ received and disapproved the fee agreement, which was not signed by the claimant's legal guardian. The reviewing official must reverse the disapproval because the fee agreement met all the statutory conditions for approval, and none of the exceptions applied when the decision maker favorably decided the claim. It is not relevant that one of the exceptions applied when the decision maker received and disapproved the agreement.

Example 3:

The fee agreement contains a clause stating that the fee will be the lesser of 25 percent of past-due benefits or current statutory fee cap, if the case is favorably decided at any point through the first hearing by an ALJ. However, it will be 25 percent of past-due benefits, with no cap, if the case is decided at a later point in the administrative review process.

In this case, an ALJ making a decision in connection with the first hearing must approve the fee agreement (if it meets the other requirements and none of the exceptions applies). An ALJ making a favorable decision after remand from the Appeals Council must disapprove the fee agreement because by its own terms, the agreement allows for a fee that exceeds the statutory requirements at that level of the administrative review process.

1. Content of Notice

In FAcTS, HACPS, or OAOCPS, and the samples in HALLEX I-1-2-107 as needed, the reviewing official will prepare and issue a letter to the requester that includes:

• A response to the issue(s) raised;

• An explanation of whether the reviewing official affirmed or reversed the previous approval or disapproval determination made on the fee agreement;

• A statement that the determination made on administrative review is not subject to further review; and

• A statement that the reviewing official is sending copies of the determination to the relevant parties and decision maker.

2. Distribution of Determination

The reviewing official will send the original and copies of the notice of determination to:

• The requester (original),

• The other parties (note: an entity is never a party, see HALLEX I-1-2-41 B), and

• The decision maker (see HALLEX I-1-2-6).

Because of Privacy Act considerations, do not reveal any Privacy Act protected information without applicable disclosure authority (e.g., consent, routine use, etc.), including:

• The claimant's mailing address or SSN 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 or SSN 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.

In these situations, the address or other personal information must be completely blocked out before mailing.

If there is an associated electronic record, the reviewing official or component will upload a copy of the notice of determination to the B section of eView. When the notice of determination is uploaded to eView, there is no need to separately notify the processing center (PC) and/or field office (FO) because they will be automatically alerted via the Electronic Disability Collection System and Evidence Portal applications.

If the determination cannot be uploaded to eView or if the claim(s) file is paper or ENM, the reviewing official will place a copy in the file with the request for administrative review and any development associated with the request and send a copy of the determination to the PC, using the appropriate control mailbox in HALLEX I-1-2-96 and/or FO responsible for effectuating the partially or fully favorable decision on the claim(s).