HALLEX I-1-160

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representation of Claimants

Chapter: I-1-100

June 30, 1994

Current through March 1997

I-1-160 REINSTATEMENT OF A REPRESENTATIVE AFTER SUSPENSION OR DISQUALIFICATION

Citations: 20 CFR §§ 404.1797 - 404.1799, 410.699, and 416.1597 - 416.1599

A. Period of Suspension Expired

We will automatically allow a person to serve again as a representative in dealings before the Secretary at the end of any period of suspension.

B. Person Disqualified or Period of Suspension not Expired

1. After one year has elapsed from the date a period of suspension or a disqualification was imposed, a person may seek reinstatement by submitting to the Deputy Chair of the Appeals Council a written request for reinstatement along with any evidence the representative wants to have considered.

2. The Appeals Council must notify the Special Counsel Staff of receipt of the request and give that office 30 days in which to present a written report commenting on the request for reinstatement.

3. The Appeals Council will not grant the request unless it is reasonably satisfied that the person will abide by the law and regulations in the future. To satisfy the burden of persuasion, the suspended or disqualified person must make a clear showing that the conditions or circumstances which gave rise to the complaint no longer exist, and are very unlikely to recur in the future. For example, a person, other than an attorney, who was disqualified on the basis of bad character and reputation may present affirmative proof of rehabilitation and avoidance of criminal or dissolute behavior; or, an attorney found guilty of overcharging a claimant may present proof of total restitution to the party and clearly show that he or she corrected deficient office practices which contributed to the improper fee collection.

4. The Appeals Council will notify the person of its decision on the request for reinstatement as a representative.

5. If the Appeals Council does not grant the request for reinstatement, it may not consider another request until one year from the date of the previous denial.


HALLEX I-1-190

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representation of Claimants

Chapter: I-1-100

June 30, 1994

Current through March 1997

I-1-190 SAMPLES (ADDED 11/92)

TABLE

[ . . . ]


HALLEX I-1-210

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-210 APPOINTMENT OF REPRESENTATIVE(S)

Only the duly appointed representative(s) of a claimant may charge or collect a fee. A claimant may appoint more than one representative. A claimant must make all appointments in writing. (See I-1-110, Appointing a Representative.)

If a law firm or other entity is involved, only the duly appointed individual(s) in that firm or entity may file a fee petition and receive payment for services performed. Each duly appointed individual must file a separate fee petition for the services he or she performed. If an attorney who represented a claimant leaves the law firm, that attorney must still file a fee petition for the work he or she performed on the claim.


HALLEX I-1-211

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-211 WAIVER OF FEE

If an attorney representative files a statement that he or she waives the right to charge a fee for services rendered, the fee authorizing staff at the hearing office or Appeals Council must notify the Office of Disability and International Operations (ODIO) or the Program Service Center (PSC), as appropriate. The hearing office provides notification by entering a statement into the "REMARKS" section of Form HA-5051 (Transmittal of Hearing Decision or Dismissal) directing that past-due benefits should not be withheld for the payment of an attorney's fee. The Appeals Council forwards the fee waiver statement to ODIO or the PSC using Form HA-505 (Transmittal by Office of Hearings and Appeals).


HALLEX I-1-212

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-212 INFORMING REPRESENTATIVES OF FEE REGULATIONS

If the representative has not waived the right to charge and collect a fee in a written statement or on the record at the hearing, the fee authorizing staff must provide him or her with Form SSA-1560 (Petition to Obtain Approval of a Fee for Representing a Claimant Before the Social Security Administration). The staff may provide this form to the representative at any time during the pendency of the claim, or forward it to the representative with his or her copy of the final decision of the ALJ or AC.

The fee authorizing staff must also provide representatives with additional information about fee requests. For this purpose, the HO uses Form HA-533 (Notice to Representative at Hearing Level Regarding a Fee For Services). The AC developed and uses its own unnumbered form letter.


HALLEX I-1-220

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-220 TIME LIMITS FOR FILING FEE PETITIONS

Neither the statute nor the regulations establish a time limit for filing a fee petition. If an attorney representative desires direct payment of a fee from past-due Title II benefits, however, 20 CFR 404.1730(c) provides time limits for filing a fee petition as set forth below.

A. Award Notice

After effectuating a favorable Title II decision in a case in which the claimant was represented, the Office of Disability and International Operations or the appropriate Program Service Center sends a copy of letter SSA-L937 (Social Security Information Notice) and a copy of the Award Notice to the claimant, the representative and the HO or the Appeals Council.

The SSA-L937 letter informs the claimant and the representative of the amount of benefits due and the amount withheld for the payment of an attorney fee. The letter also states that an attorney representative must file a fee petition within 60 days of the date of the Award Notice in order to receive direct payment of a fee from withheld benefits.

B. Sixty-day Diary

If the fee authorizer receives a copy of the Award Notice and does not have a pending fee petition, diary the file for 60 days from the date of the award. It is not necessary to send the attorney representative a 60-day letter because the Award Notice contains that information.

C. Twenty-day Notice

If the fee authorizer does not receive a fee petition or a written request for an extension of time to file within the 60-day period, send the attorney representative a notice that if we do not receive a fee petition within 20 days, the withheld benefits will be released to the claimant. It is not necessary to send such notice to a non-attorney representative because no funds are withheld to pay a fee. (See 20 CFR 404.1730(c)(2)(i).)

D. Releasing Withheld Benefits

If the fee authorizer does not receive a fee petition or has not granted an extension of time to file after the 20-day period has elapsed, inform the effectuating component by memorandum that no fee petition has been received and that the withheld funds must be released to the claimant.


HALLEX I-1-230

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-230 PROCESSING FORM SSA-1560 (PETITION TO OBTAIN APPROVAL OF A FEE FOR REPRESENTING A CLAIMANT BEFORE THE SOCIAL SECURITY ADMINISTRATION) (REVISED 02/93)

Representatives should file Form SSA-1560 or a written statement providing the same information only when all services are completed.

NOTE: Fee authorizers generally will not accept supplemental fee petitions unless the representative has performed additional services after the initial fee authorization.

A. Upon receipt of a Form SSA-1560 or a written statement providing the same information [see 20 CFR 404.1725(a) and 416.1525(a) ], the fee authorizing staff must take the following actions:

1. Date stamp the form or statement and associate it with the HO or the Appeals file.

2. Determine whether the individual who filed the fee petition was duly appointed the claimant's representative on the Form SSA-1696 (Appointment of Representative) or other written document. (See I-1-110, Appointing a Representative.)

If the individual who filed the fee petition was not duly appointed by the claimant, the fee authorizing staff will return the fee petition to the individual with a written explanation that only a claimant's duly appointed representative may charge and collect a fee.

3. Determine that the petition specifies the amount of the fee which the representative wants to charge. [ 20 CFR 404.1725(a)(3) and 416.1525(a)(3) ]. The fee authorizing staff must return any petition which does not show a dollar amount.

NOTE: The fee authorizer must not attempt to convert a percentage amount to a dollar amount. Past-due title II benefits may be subject to offsets such as worker's compensation or overpayments. The fee authorizer should not speculate whether the representative is requesting a percentage of the past-due benefits before or after the offset is/was applied.

4. Confirm that the fee request shows that the representative sent a copy of the fee request to the claimant. If the representative did not do so, return the petition to the representative with a notice that the representative did not follow the procedures in 20 CFR 404.1725(a)(7).

5. Diary the case for 30 days from the date of the fee petition for receipt of any comments from the claimant, unless the claimant's comments have been submitted with the fee petition, e.g., claimant has signed the Form SSA-1560 indicating agreement with the requested fee.

B. After the expiration of the 30-day diary period, the fee authorizer with jurisdiction over the fee petition must review the petition pursuant to the regulatory criteria (See I-1-240, Evaluating Fee Petitions) and make a fee determination, subject to the $5,000 limit. (See I-1-201 A., Authority to Approve Fees.)


HALLEX I-1-240

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-240 EVALUATING FEE PETITIONS

The regulations do not specify maximum fees; rather, they prescribe criteria for evaluating fee petitions and determining reasonable fees for representatives [ 20 CFR 404.1725(b) and 416.1525(b) ].

A. Criteria for Evaluating Fee Petitions

When evaluating fee petitions, the fee authorizer must consider the purpose of the Social Security program; namely, to provide a measure of economic security for program beneficiaries, together with--

- the extent and type of services performed;

- the complexity of the case;

- the level of skill and competence required in providing the services;

- the amount of time spent on the case;

- the results achieved by the representative;

- the level of review to which the claim was taken and the level of review at which the representation began; and,

- the amount of the fee requested.

B. Excluded Activities

In evaluating the amount of time a representative spent on the case, the fee authorizer must exclude any time claimed for:

1. Preparing the fee petition or any other activities related to charging or collecting a fee, such as status inquiries, and

2. Any services the representative performed before a state or federal court.

EXCEPTION: Acquiescence Ruling 87-1(6), Webb v. Richardson, applies to fee authorizations in the Sixth Circuit (Michigan, Ohio, Tennessee and Kentucky).

C. Expenses

The representative's expenses are not considered part of the fee for services. The representative must look to the claimant for reimbursement of any expenses. 20 CFR 404.1725(b)(1)(vii) and 416.1525(b)(1)(vii).


HALLEX I-1-245

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-245 AUTHORIZATION TO CHARGE AND RECEIVE A FEE

A. Form HA-L530 (Authorization to Charge and Receive a Fee)

To prepare Form HA-L530:

1. Fill in the identifying information at the top of the form; i.e., date, claimant's name, wage earner's name (if different from the claimant's name), wage earner's Social Security number, type of claim, name and address of the claimant, and the names of auxiliary beneficiaries (if the representative has included the names of the claimant's dependents on the fee request).

2. Indicate the fee authorized in the section beginning, "You are hereby authorized...."

3. In the section beginning, "NOTE: IF EITHER YOU OR THE CLAIMANT DISAGREES....," fill in the Regional Chief ALJ's (RCALJ's) name and the Regional Office address if the fee authorizer is an ALJ, or the name of the Deputy Chair of the Appeals Council and the AC address if the fee authorizer was the Attorney Fee Branch.

NOTE: Enter the name and address of the RCALJ in the Region where the case was heard.

4. Check the appropriate block in the section beginning "The paragraph or paragraphs checked below ..." as follows:

a. First block:

Check the first block if it can be determined that all of the authorized fees will be paid directly to the attorney representative out of funds withheld from the claimant's past-due benefits, and insert the name and address of the office which processed the award; i.e., Office of Disability and International Operations (ODIO) or the appropriate Program Service Center (PSC), in case the attorney wishes to obtain information as to the status of the fee authorization.

For those cases processed in ODIO, by the Office of Disability Operations, the staff should type in the following address:

Office of Disability and International Operations

Division of Appealed Claims

P.O. Box 17295

Baltimore, Maryland 21235

NOTE: If the attorney requests the status of his or her payment after the fee has been authorized, tell him or her to write to ODIO or the appropriate PSC at the address provided.

b. Second block:

Check the second block if it can be determined that the amount withheld is less than the authorized fee.

c. Third block:

Check the third block if no funds have been withheld; i.e., the claimant is not entitled to any past-due benefits, the representative is not an attorney, or the claim is for Supplemental Security Income.

d. Last block:

Check the last block if it is necessary to add an additional or special paragraph(s) to the authorization; i.e., when the authorized fee is less than what was requested.

NOTE: If the additional information that the fee authorizer must add is too lengthy for the available space on the HA-L530, use a continuation sheet as an attachment.

B. Sample Paragraphs

The following sample paragraphs may be appropriate:

1. Auxiliary Beneficiaries:

"The approved fee is for all services performed for the claimant and auxiliary beneficiaries."

2. Out-of-Pocket Expenses:

"We do not consider out-of-pocket expenses when we authorize a fee; therefore, you must seek reimbursement from the claimant."

3. Retainer Fee Paid by Claimant:

a. If the retainer fee is less than the authorized fee and there are withheld benefits:

"Since the claimant previously paid you a retainer fee of $*** for your services which you are holding in an escrow account, the remaining balance of $*** will be sent to you out of the funds withheld from the claimant's past-due benefits."

b. If the retainer fee is less than the authorized fee and there are no withheld benefits:

"The claimant previously paid $*** towards your fee which you are holding in an escrow account; therefore, the balance remaining for your services is $***. You should look to the claimant for payment of the balance."

c. If the retainer fee exceeds the authorized fee:

"The claimant previously paid $*** towards your fee which you are holding in an escrow account. Because this amount exceeds the amount of the fee you are authorized to collect, you must refund $*** to the claimant."

4. Concurrent Title II and Title XVI Cases:

"The fee approved is for all services performed in connection with both claims."

C. Distribution of Form HA-L530


The fee authorizing staff will distribute the Form HA-L530 as follows:

1. Claim File Copy

- For allowances:

Mail the claim file copy of Form HA-L530, Form SSA-1129 or other appropriate benefit information notice (if available), and the claim file copy of Form SSA-1560 to the effectuating component, using a route slip (Form HA-505).

- For denials:

Mail the claim file copy of Form HA-L530 and the claim file copy of Form SSA-1560 to the office or component having the claim file, using a route slip (Form HA-505).

2. Mail the representative's copy (original) to the representative.

3. Mail the claimant's copy to the claimant.

4. Place a copy of Form HA-L530, Form SSA-1560, the benefit information (if available), and the route slip to the effectuating component in the HO or Appeals file.


HALLEX I-1-246

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-246 DISAPPROVAL OF A FEE REQUEST

If the fee authorizer decides not to authorize a fee, the authorizing staff must issue an order of disapproval, using Form HA-515 (Hearing Order) if the authorizer is an ALJ, or Form HA-517 (Order of Appeals Council) if the authorizer is the Attorney Fee Branch. The order of disapproval must include a rationale for the action.

A. Administrative Review Notice

The order must provide notice to the representative that he or she may request an administrative review of the order of disapproval and that the request must be made within 30 days of the date of the order. (See I-1-250, Administrative Reviews.)

B. Distribution

The fee authorizing staff will distribute the order in the same way as the HA-L530. (See I-1-245 C., Distribution of Form HA-L530.)


HALLEX I-1-250

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-250 ADMINISTRATIVE REVIEWS

The regulations at 20 CFR 404.1720(d) and 416.1520(d) afford both the representative and the claimant the right to request administrative review of the initial fee authorization. A fee authorization made after an administrative review is not subject to further administrative or judicial review. (See 20 CFR 404.903(f) and 416.1403(a)(6).)

A. Delegation of Authority

If an ALJ made the initial fee authorization, the RCALJ in the Region where the case was heard has the authority to conduct the administrative review.

If the RCALJ set the initial fee, either as the presiding ALJ or on a recommendation from a presiding ALJ (See I-1-201 A., Authority to Approve Fees), the Deputy Chief ALJ has the authority to conduct the administrative review.

If the Deputy Chief ALJ set the initial fee either as the presiding ALJ or on recommendation from an RCALJ (See I-1-201 A., Authority to Approve Fees), the Chief ALJ has authority to conduct the administrative review.

If the Attorney Fee Branch made the initial fee authorization, the Deputy Chair of the Appeals Council has the authority to conduct the administrative review.

B. Procedures on Review

1. When a request for administrative review is received, the hearing office, Regional Office or Attorney Fee Branch staff will provide the reviewing official with the following:

. a copy of the decision;

. a copy of the exhibit list;

. a copy of the cassette envelope;

. a copy of the award notice or other benefit information;

. the fee petition;

. the fee authorization; and

. any other documents or information that might be helpful in performing the administrative review.

2. The RCALJ, Deputy Chief ALJ, the Chief ALJ or the Deputy Chair of the AC, as appropriate, will take the following actions in conducting an administrative review:

. Determine whether the claimant or the representative filed the administrative review request within 30 days of the original fee authorization, or has established good cause for not filing the request timely. Examples of good cause are provided at 20 CFR 404.1720(d)(2) and 416.1520(d)(2).

If the request is untimely and good cause is not found, notify the representative and the claimant that the prior fee authorization is final and not subject to further review.

. If the representative filed a request for administrative review and did not send a copy to the claimant, return the request to the representative with a notice that the representative did not follow the procedures in 20 CFR 404.1720(d)(1) and 416.1520(d)(1).

If the claimant filed the request for administrative review and did not send a copy to the representative, send the representative a copy of the request.

. If the representative is an attorney and there are withheld past-due Title II benefits, send a memorandum to the effectuating component advising them not to release any of the withheld benefits until the administrative review is completed.

. If the administrative review results in a reduction or increase of the authorized fee, send a letter to the representative and the claimant giving the reasons for the change, and prepare and distribute a new Form HA-L530 showing the new amount. [ See Section I-1-245, Authorization to Charge and Receive a Fee.]

If the administrative review does not change the amount of the authorized fee, send a letter to the representative and claimant giving the reasons for the determination.

. If past-due benefits were withheld, send a copy of the letter or the new Form HA-L530 to the effectuating component.


HALLEX I-1-260

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-260 EVIDENCE OR ALLEGATIONS OF VIOLATIONS OF LAW

If the hearing office or AC has evidence or receives allegations of violations of the statute or regulations pertaining to the charging or collecting of fees, the HO or AC staff must refer the matter by memorandum to the Special Counsel Staff (SCS), and provide complete documentation of the incident or actions in question. Take the following actions to refer the case:

1. Prepare a brief memorandum for signature of the HO Chief ALJ or the Deputy Chair of the AC describing the alleged violation and summarizing the facts of the case.

2. Assemble existing evidence pertaining to the alleged violation including:

- copies of any available files. Because the claim file may already be with another component, indicate in the referral what action has been taken to locate the claim file and what arrangements have been made to have it forwarded to SCS;

- documents or statements from the claimant(s) or other persons alleging fee violations;

- originals or copies of bills, receipts, cancelled; checks or money orders; and

- copies of fee agreements.

3. Indicate whether the HO or AC has received other complaints concerning the representative.


HALLEX I-1-270

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Representative Fees

Chapter: I-1-200

June 30, 1994

Current through March 1997

I-1-270 EQUAL ACCESS TO JUSTICE ACT

The Equal Access to Justice Act (EAJA), 5 U.S.C. 504, 28 U.S.C. 2412, authorizes an attorney to obtain reimbursement of expenses incurred (e.g., legal fees, expert witness fees, etc.) in the course of representing a litigant in a court action and certain administrative proceedings involving a government agency. The EAJA stipulates that reimbursement of legal fees and other expenses apply only to proceedings in which the party prevails against the agency, provided the court finds that the position of the government was not substantially justified.

The EAJA also specifically provides that when a representative receives fees for the same work under both section 206(b) of the Social Security Act and EAJA, the representative must refund to the claimant the amount of the smaller fee. If a representative is known or suspected to have collected fees under both statutes, but did not refund the smaller fee to the claimant, the representative may be in violation of section 206(b)(2) of the Social Security Act. (See I-1-260, Evidence or Allegation of Violations of Law.)

The United States Supreme Court in the case of Sullivan v. Hudson, 109 S.Ct. 2248 (1989), held that when a court orders a remand of a Social Security case to the Secretary and retains continuing jurisdiction pending the Secretary's decision on a claimant's right to benefits, the remand proceedings are an integral part of the civil action. Thus, fees under EAJA for representational services during proceedings before SSA on remand are available subject to other limitations in the EAJA.