GN 03950: Administrative Review of Fee Authorizations Under the Fee Petition Process
BAs will refer to a reconsideration reviewer (RECONR) all OHO fee petition administrative review determinations in which an attorney's fee was increased. Usually SSA does not withhold past-due benefits beyond the initial fee authorization. Therefore, when SSA released withheld past-due benefits after the initial fee authorization special notice language concerning responsibility of payment, collection of the fee, and potential overpayment action by SSA, (if not contained in the OHO notice), will be necessary.
1. Initial Fee Required All Past-Due Benefits
If SSA paid the initially authorized fee with all the past-due benefits previously withheld, no further action is necessary if the fee is increased on administrative review.
2. Initial Fee Less Than Past-Due Benefits
If SSA paid the fee OHO initially authorized with only a portion of the past-due benefits previously withheld because:
the authorized fee was less than the past-due benefits amount; or
payment from past-due benefits decreased after adjustment for a trust or escrow account;
and the fee was increased on administrative review, SSA informs the claimant and any affected auxiliary beneficiary(ies) of their obligation to pay the increased fee.
3. Notice to Claimant
The RECONR prepares a notice telling the claimant and any affected auxiliary beneficiaries that:
the fee reviewer increased the attorney's fee (indicating the amount of the increase and the total fee authorized);
the law requires SSA to withhold up to 25 percent of past-due benefits toward direct payment of an attorney's fee;
following the payment of the original fee to the attorney, SSA released the remaining past-due benefits to the claimant and affected auxiliary beneficiary, if appropriate;
the attorney expects the claimant (and any affected auxiliary beneficiaries) to pay the increased fee; and
if the claimant (or any affected auxiliary beneficiary) does not arrange to pay the attorney, SSA will have to take action to withhold these fees from his/her future benefits.
4. Notice to Attorney
The RECONR prepares a notice telling the attorney:
how much the fee reviewer increased the initial fee on administrative review;
how much the fee reviewer authorized (total fee);
that SSA can not certify direct payment of the increased fee because the amount of withheld past-due benefits remaining after the payment of the initial fee was released to the claimant (or affected auxiliary beneficiary(ies)) following the initial fee authorization;
that the attorney should attempt to collect the increased fee directly from the claimant (or affected auxiliary beneficiary(ies)); and
that the attorney should notify SSA if the claimant (or affected auxiliary beneficiary(ies)) does not make a satisfactory arrangement to pay the fee.
5. Attorney Unable to Collect Fee
If the attorney reports that he/she is unable to collect the increased fee from the claimant (or affected auxiliary beneficiary(ies)), the RECONR instructs the BA to:
certify direct payment of the increased fee to the attorney (to the extent of the remaining withheld past-due benefits released after the initial fee payment);
establish an overpayment;
initiate recovery; and
if waiver of recovery is requested by the claimant (or affected auxiliary beneficiary(ies), follow the usual waiver procedures.