That certification or payment shall not be withheld under the above circumstances unless evidence is submitted in connection with a request or application described in paragraphs (a) and (b) of this section, which is sufficient to raise a reasonable question as to the validity of the payment or payments under the determination or decision. The Administration shall, however, certify for payment, as provided in § 404.968, any amount of the payment or payments which is not in question. The acceptance of any payment or payments by a person entitled thereto shall be without prejudice to his rights to reconsideration, hearing, or review, as to any additional payment or payments he may claim.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.970 Transfer or assignment.

The Administration shall not certify, as provided in § 404.968, any amount for payment to an assignee or transferee of the person entitled to such payment under the act, nor shall the Administration certify such amount for payment to any person claiming such payment by virtue of an execution, levy, attachment, garnishment, or other legal process or by virtue of any bankruptcy or insolvency proceeding against or affecting the person entitled to the payment under the act.

§ 404.971 Representation of party-appointment of representative.

A party in an action leading to an initial or reconsidered determination, hearing, or review, as provided in §§ 404.905 to 404.963, inclusive, may appoint as his representative in any such proceeding only an individual who is qualified under § 404.972 to act as a representative. Where the individual appointed by a party to represent him is not an attorney, written notice of the appointment must be given, signed by the party appointing the representative, and accepted by the representative appointed. The notice of appointment shall be filed at an office of the Administration, with a hearing examiner, or with the Appeals Council of the Administration, as the case may be. Where the representative appointed is an attorney, in the absence of information to the contrary, his representation that he has such au

(a) Attorney. Any attorney in good standing who (1) is admitted to practice before a court of a State, Territory, District or insular possession or before the Supreme Court of the United States or an inferior Federal court, (2) has not been disqualified or suspended from acting as a representative in proceedings before the Social Security Administration, and (3) is not, pursuant to any provision of law, otherwise prohibited from acting as a representative, may be appointed as a representative in accordance with § 404.971.

(b) Person other than attorney. Any person (other than an attorney described in paragraph (a) of this section) who (1) is of good character, in good repute, and has the necessary qualifications to enable him to render valuable assistance to an individual in connection with his claim, (2) has not been disqualified or suspended from acting as a representative in proceedings before the Social Security Administration, and (3) is not, pursuant to any provision of law, otherwise prohibited from acting as a representative, may be appointed as a representative in accordance with

§ 404.971.

[32 F.R. 7750, May 27, 1967]

§ 404.973 Authority of representative.

A representative, appointed and qualified as provided in §§ 404.971 and 404.972, may make or give, on behalf of the party he represents, any request or notice relative to any proceeding before the Social Security Administration under titles and XVIII of the Act, including reconsideration, hearing and review, except that such representative may not execute an application for benefits, or the establishment of a period of disability, or a lump sum, or for entitlement to hospital insurance benefits or for enrollment for supplementary medical insurance benefits, unless he is a person designated in § 404.603 as authorized to execute an application for benefits, or the establishment of a period of disability, or a lump sum, or for entitlement to hospital insurance benefits, or for enrollment for supplementary medical insurance benefits. A representative shall be entitled

to present or elicit evidence and allegations as to facts and law in any proceeding affecting the party he represents and to obtain information with respect to the claim of such party to the same extent as such party. Notice to any party of any administrative action, determination, or decision, or request to any party for the production of evidence may be sent to the representative of such party, and such notice or request shall have the same force and effect as if it had been sent to the party represented. (For fees to representatives for services performed before the Administration for an individual, see § 404.975.) [32 F.R. 7751, May 27, 1967]

§ 404.974 Proceedings before a State or Federal court.

(a) Representation of claimant in court proceeding. Any service rendered by any representative in any proceeding before any State or Federal court shall not be considered services in any proceeding before the Social Security Administration for purposes of §§ 404.973 and 404.975. However, if the representative has also rendered services in connection with the claim in any proceeding before the Administration, as defined in § 404.977a, he must specify what, if any, amount of the fee he desires to charge is for services performed before the Administration, and, if he charges any fee for such services, he must file the petition and furnish all of the information required by § 404.976(a).

(b) Attorney fee allowed by a Federal court. In any case where a Federal court in any proceeding under titles II and XVIII of the Act renders a judgment favorable to a claimant who was represented before the court by an attorney, and the court, pursuant to section 206 (b) of the Act, allows to the attorney as part of its judgment a fee not in excess of 25 percent of the total of past-due benefits to which the claimant is entitled by reason of the judgment, the Administration may certify the amount of such fee for payment to such attorney out of, but not in addition to, the amount of the past-due benefits payable (see § 404.977 (a)). No other fee may be certified for direct payment to such attorney for such representation.

(c) Past-due benefits defined. The term "past-due benefits" as used in paragraph (b) of this section means the total accumulated amount of benefits payable under title II of the Act by reason of the

court's judgment through the month prior to the month of the judgment favorable to the claimant who was represented by the attorney.

[32 F.R. 7751, May 27, 1967, as amended at 34 F.R. 385, Jan. 10, 1969]

§ 404.975 Fee for services performed

for an individual before the Social Security Administration.

(a) General. A fee for services performed for an individual before the Social Security Administration in any proceeding under titles II or XVIII of the Act may be charged and received only as provided in paragraph (b) of this section.

(b) Charging and receiving fee. An individual who desires to charge or receive a fee for services rendered for an individual in any proceeding under titles II or XVIII of the Act before the Administration (see § 404.977a), and who is qualified under § 404.972, must file a written petition therefor in accordance with § 404.976 (a). The amount of the fee he may charge or receive, if any, shall be determined on the basis of the factors described in § 404.976 (b) by an authorized official of the appropriate component of the Administration, where the services were concluded by an initial, reconsidered, or revised determination, or by the Bureau of Hearings and Appeals where there is a decision or action by a hearing examiner or the Appeals Council of the Social Security Administration, as the case may be. Every such fee which is charged or received must be approved as provided in this section and no fee shall be charged or received which is in excess of the amount so approved. This rule shall be applicable whether the fee is charged to or received from a party to the proceeding or someone else. Pursuant to section 206(a) of the Act, in the case of a representative qualified as an attorney under § 404.972 (a), the Administration may certify the amount of such fee, subject to the limitations in § 404.977(b), for payment out of, but not in addition to, the amount of past-due benefits payable.

(c) Past-due benefits defined. The term "past-due benefits" as used in paragraph (b) of this section means the total accumulated amount of benefits payable under title II of the Act by reason of the favorable determination through the month prior to the month such determination is effectuated.

(d) Notice of fee determination. Written notice of a fee determination made in accordance with paragraph (b) of this section shall be mailed to the representative and the claimant at their last known addresses. Such notice shall inform the parties of the amount of the fee authorized, the basis of the determination, the fact that the Administration assumes no responsibility for payment except that pursuant to section 206(a) of the Act the Administration may certify payment to an attorney, and that each party may request an administrative review of the determination within 30 days of the date of the notice.

(e) Administrative review of fee determination. Administrative review of a fee determination will be granted only if a request is filed by either the representative or the claimant within 30 days of the date of the notice of the fee determination. The request for administrative review shall be in writing and filed at an office of the Administration and a copy sent to the other party. Upon the filing of such request for review of a fee determination, an authorized official of the Administration who did not participate in the fee determination in question will review the determination.

[34 F.R. 385, Jan. 10, 1969, as amended at 34 F.R. 17520, Oct. 30, 1969]

§ 404.976 Petition for approval of fee.

(a) Filing of petition. In accordance with § 404.975, to obtain approval of a fee for services performed before the Social Security Administration in any proceeding under the Act, a representative, upon completion of the proceedings in which he rendered services, must file at an office of the Social Security Administration a written petition which shall contain the following information:

(1) The dates his services began and ended;

(2) An itemization of services rendered by him in a proceeding under the Act, with the amount of time spent in hours, or parts thereof, on each type of service;

(3) The amount of the fee he desires to charge for services performed;

(4) The amount of fee requested or charged for services rendered in the same matter before any State or Federal court;

(5) The amount and itemization of expenses incurred for which reimbursement has been made or is expected;

(6) The special qualifications which enabled him to render valuable services to the claimant (this requirement does not apply where the representative is an attorney); and

(7) A statement showing that a copy of the petition was sent to the person represented.

(b) Factors considered in evaluating a petition for fee. In evaluating a request for approval of a fee, the purpose of the social security program-to provide a measure of economic security for the beneficiaries thereof-will be considered, together with the following factors: (1) The services performed (including type of service);

(2) The complexity of the case;

(3) The level of skill and competence required in rendition of the services;

(4) The amount of time spent on the case;

(5) The results achieved. (While consideration is always to be given to the amount of benefits, if any, which are payable in a case, the amount of fee will not be based on the amount of such benefits alone but on a consideration of all of the factors listed in this section. The benefits payable in a given claim are governed by specific statutory provisions and by the occurrence of termination, deduction, or nonpayment events specified in the law, factors which are unrelated to efforts of the representative. In addition, the amount of accrued benefits payable in a given claim is affected by the length of time that has elapsed since the claimant became entitled to benefits.);

(6) The level of administrative review to which the claim was carried within the Social Security Administration and the level of such review at which the representative entered the proceedings;

and

(7) The amount of the fee requested for services rendered, excluding the amount of any expenses incurred, but including any amount previously authorized or requested.

[32 F.R. 7751, May 27, 1967]

§ 404.977 Payment of fees.

(a) Fees allowed by a Federal court. Subject to the limitations in § 404.974(b), the Administration shall certify for payment direct to attorneys, out of pastdue benefits as defined in § 404.974(c), the amount of fee allowed by a Federal court in a proceeding under title II of the Act.

(b) Fees authorized by the Administration (1) Attorneys. In any case where the Administration makes a determination favorable to a claimant who was represented by an attorney as defined in § 404.972 (a) in a proceeding before the Administration and as a result of such determination past-due benefits, as defined in § 404.975 (c), are payable, the Administration shall certify for direct payment to the attorney, out of such benefits, whichever of the following is the smaller:

(i) 25 percent of the total of such past-due benefits,

(ii) The amount of attorney's fee set by the Administration, or

(iii) The amount agreed upon between the attorney and the claimant.

(2) Persons other than attorneys. The Administration assumes no responsibility for the payment of any fee which a representative as defined in § 404.972 (b) (person other than an attorney) has been authorized to charge in accordance with the provisions of § 404.975 and will not deduct such fee from benefits payable under the Act to any beneficiary. (Sec. 206, 67 Stat. 631, sec. 5, 67 Stat. 18, 631; 42 U.S.C. 406) [34 F.R. 385, Jan. 10, 1969]

§ 404.977a Services rendered for an individual in a proceeding before the Administration under titles II or XVIII of the Act.

Services rendered for an individual in a proceeding before the Administration under titles II or XVIII of the Act consist of services performed for an individual in connection with any claim before the Secretary of Health, Education, and Welfare under titles II or XVIII of the Act, including any services in connection with any asserted right calling for an initial or reconsidered determination by the Administration, and a decision or action by a hearing examiner or by the Appeals Council of the Bureau of Hearings and Appeals of the Administration, whether such determination, decision, or action is rendered before or after remand of a claim by a court. Such services include, but are not limited to, services in connection with an application for benefits or a lump sum; an application for hospital insurance protection or enrollment in the supplementary medical insurance plan; the establishment or continuance of a period of disability; a request for modification of the amount of benefits or lump

sum; the reinstatement of benefits; proof of support; a request for the revision of an earnings record; and services in connection with the preparation of proof of earnings.

[32 F.R. 7752, May 27, 1967]

§ 404.978 Rules governing the representation and advising of claimants and parties.

No attorney or other person shall:

(a) With intent to defraud, in any manner willfully and knowingly deceive, mislead, or threaten by word, circular, letter, or advertisement, either oral or written, any claimant or prospective claimant or beneficiary with respect to benefits, including hospital and supplementary medical insurance benefits, lump sums, periods of disability, establishment or maintenance of earnings records, or any other initial or continued right under the Act; or

or

(b) Knowingly charge or collect, or make any agreement to charge or collect, directly or indirectly, any fee in connection with any claim except under the circumstances prescribed in § 404.975, knowingly charge, demand, receive, or collect for services rendered before a Federal court in connection with a claim under titles II and XVIII of the Act, any amount in excess of that allowed by the court as described in § 404.974 (b); or

(c) Knowingly make or participate in the making or presentation of any false statement, representation, or claim as to the amount of wages or self-employment income earned by, or derived by, or paid to, an individual, or the period of such earnings, or the time of payment, or as to any material fact affecting the right of any person to benefits under titles II and XVIII of the Act, or as to the amount of any benefit or lump sum, or to a period of disability; or

(d) Divulge, except as may be authorized by regulations now or hereafter prescribed by the Secretary, any information furnished or disclosed to him by the Social Security Administration relating to the claim or prospective claim of another person.

[25 F.R. 1677, Feb. 26, 1960, as amended at 32 F.R. 7752, May 27, 1967]

§ 404.979 Disqualification or suspension of an individual from acting as a representative in proceedings before the Social Security Administration. Whenever it appears that an individual has violated any of the rules in § 404.978,

or has been convicted of a violation under section 206 of the Social Security Act, or has otherwise refused to comply with the Secretary's rules and regulations governing representation of claimants before the Social Security Administration, the Deputy Commissioner, or the Director (or Deputy Director)

of the Bureau of Retirement and Survivors Insurance may institute proceedings as herein provided to suspend or disqualify such individual from acting as a representative in proceedings before the Administration.

[34 F.R. 6973, April 26, 1969]

§ 404.980 Notice of charges.

The Deputy Commissioner, or the Director (or Deputy Director) of the Bureau of Retirement and Survivors Insurance will prepare a notice containing a statement of charges that constitutes the basis for the proceeding against the individual. This notice will be delivered to the individual charged, either by certified or registered mail to his last known address or by personal delivery, and will advise the individual charged to file an answer, within 30 days from the date the notice was mailed, or was delivered to him personally, indicating why he should not be suspended or disqualified from acting as a representative before the Social Security Administration. This 30-day period may be extended for good cause shown, by the Deputy Commissioner, or the Director (or Deputy Director) of the Bureau of Retirement and Survivors Insurance. The answer must be in writing under oath (or affirmation) and filed with the Social Security Administration, Bureau of Hearings and Appeals, P.O. Box 2518, Washington, D.C. 20013, with a copy to the Bureau of Retirement and Survivors Insurance, 6401 Security Boulevard, Baltimore, Md. 21235, within the prescribed time limitation. If an individual charged does not file an answer within the time prescribed, he shall not have the right to present evidence. However, see § 404.983 (f) relating to statements with respect to sufficiency of the evidence upon which the charges are based or challenging the validity of the proceedings.

[34 F.R. 6973, April 26, 1969]

Bureau of Retirement and Survivors Insurance, that reasonable doubt exists about whether the individual charged should be suspended or disqualified from acting as a representative before the Social Security Administration, the charges may be withdrawn. The notice of withdrawal shall be mailed to the individual charged at his last known address.

[34 F.R. 6973, April 26, 1969]

§ 404.982

Referral to Bureau of Hearings and Appeals for hearing and decision.

If action is not taken to withdraw the charges before the expiration of 15 days after the time within which an answer may be filed, the record of the evidence in support of the charges shall be referred to the Bureau of Hearings and Appeals with a request for a hearing and a decision on the charges. [34 F.R. 6973, April 26, 1969]

§ 404.983 Hearing on charges.

(a) Hearing officer. Upon receipt of the notice of charges, the record, and the request for hearing (see § 404.982), the Director, Bureau of Hearings and Appeals, or his delegate shall designate a hearing examiner to act as a hearing officer to hold a hearing on the charges. No hearing officer shall conduct a hearing in a case in which he is prejudiced or partial with respect to any party, or where he has any interest in the matter pending for decision before him. Notice of any objection which a party to the hearing may have to the hearing officer who has been designated to conduct the hearing shall be made at the earliest opportunity. The hearing officer shall consider the objection(s) and shall, in his discretion, either proceed with the hearing or withdraw. If the hearing officer withdraws, another hearing officer shall be designated as provided in this section to conduct the hearing. If the hearing officer does not withdraw, the objecting party may, after the hearing, present his objections to the Appeals Council as reason why he believes the hearing officer's decision should be revised or a new hearing held before another hearing officer.

(b) Time and place of hearing. The hearing officer shall notify the individual charged and the Deputy Commissioner, or the Director (or Deputy Director) of the Bureau of Retirement and Survivors