SSA - POMS: GN 03940.055 - Title XVI and Concurrent Titles II and XVI Claims - Field Office Processing of the Fee Agreement Notice

A. Procedure - Notice Requirement

1. Unfavorable Decision

For unfavorably decided claims, do not prepare a fee notice.

2. Favorable Decision - Fee Notice - Overview

When the claimant submits a fee agreement and SSA issues a favorable decision, SSA issues a fee notice(s) to advise the claimant of the actions taken based on the agreement. For many title XVI fee agreement cases, the fee calculation; direct payment, if applicable; and the notice are automated through the title XVI system. The fee agreement notice content and the paragraph sequencing for automated notices are described in GN 03940.055C. through GN 03940.055F.

When a title XVI fee notice is excluded from automated processing (see GN 03940.055B., Process - Manual Fee Notice Necessary), the title XVI claims representative (CR) prepares a notice through the Document Processing System (DPS). The CR follows the procedures in this section and additional procedures in GN 03940.070, Title XVI - Fee Agreement Manual Notice Field Office Processing. The CR will:

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Prepare the title XVI fee agreement notice on a Form SSA-L8165-U2 (Important Information).
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Depending on the circumstances in the case and the stage in the fee authorization process, include information about the approval or disapproval of the fee agreement, delay in fee authorization, fee authorization, and/or fee payment. Refer to GN 03940.055A.3. and GN 03940.055A.4. for guidance on the information to include in specific situations.
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Include in all notices:
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  “Things to Remember” caption (Universal Text Identifier (UTI) XVI331 in SSI system/INFC08 and AAA014 in DPS) and relevant UTIs (e.g., letter also sent in Spanish and a copy of notice being sent to representative and representative payee); and
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  “If You Have Questions” caption (UTI REFC01) and UTIs REF059 and REF064 in automated notices. In manual notices, use UTI REF032 with the REFC01 caption.
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Send the fee notice to the claimant and representative payee, and a copy to the representative and legal guardian, if any. If the claimant died before the date of the notice, send the notice to claimant's survivors or estate.
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If the decision maker requested to be notified of the fee authorization, send an e-mail message or a copy of the notice to the decision maker.

3. Favorable Decision - Fee Agreement Disapproved

a. Title XVI Only Claim - CR Disapproves Fee Agreement

For title XVI only claims favorably decided at the initial or reconsideration level, the CR sends a notice of disapproval if the CR disapproves the fee agreement.

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If the CR disapproves the fee agreement because there are no past-due benefits or disapproves the fee agreement for any reason, and the representative is not eligible for direct fee payment, advise the representative to file a fee petition if he or she wishes to charge a fee for his or her services. This is an automated notice. (See GN 03940.055C.1.)
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If the CR disapproves the fee agreement, there are past-due benefits, and the representative is eligible for direct payment, advise the claimant that the fee agreement is disapproved, that SSA is withholding past-due benefits for direct payment and that the representative should file the fee petition within 60 days if he/she wants SSA to make direct payment to him/her. This requires a manual notice. (See GN 03940.070B.1.a.)

b. Title XVI Only Claim - ALJ or AAJ Disapproves Fee Agreement

If an Administrative Law Judge (ALJ) or an Administrative Appeals Judge (AAJ) disapproves the fee agreement, the ALJ or AAJ notifies the claimant and representative of the disapproval and the requirement to file a fee petition if the representative wishes to charge the claimant for his/her services. If SSA does not withhold past-due benefits because there are no past-due benefits or the representative is not eligible for direct payment, no additional notice is required.

When an ALJ or AAJ disapproves the fee agreement, there are past-due benefits, and the representative is eligible for direct payment, SSA withholds past-due benefits and the CR sends a notice to advise the claimant that SSA is withholding past-due benefits for direct fee payment and that the representative should file the fee petition within 60 days if he/she wants SSA to make direct payment to him/her. This requires a manual notice. (See GN 03940.070B.1.b.)

c. Concurrent Title II and XVI Claims

For concurrent titles II and XVI claims, the title XVI CR does not notify the claimant and the representative of the fee agreement disapproval. The decision maker (i.e., the title II CR, ALJ or AAJ) sends this notice.

However, if SSA withholds title XVI past-due benefits because the representative is eligible for direct fee payment, the CR prepares a manual notice to notify the claimant and representative that SSA has withheld the claimant’s past-due benefits for possible direct payment. Also provide instructions about filing a fee petition. (See GN 03940.070D.)

4. Favorable Decision - Fee Agreement Approved

Begin all fee agreement notices with lead-in UTI XVI720 (UTI FEE038 in DPS). (See GN 03940.085 for text of this UTI and the other fee specific UTIs referenced in this section.) Automated notices include the UTIs outlined in GN 03940.055C. or GN 03940.055D. Situations that require a manual notice are listed in GN 03940.055B. Refer to GN 03940.070 for the content of manually produced notices

NOTE: In concurrent titles II and XVI claims, the action to approve or disapprove the fee agreement is taken in connection with the title II claim.

B. Process - Manual Fee Notice Necessary

In the following title XVI only and concurrent titles II and XVI claims situations, it is necessary to manually produce a title XVI fee notice:

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Claimant has two or more representatives.
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Spouse’s past-due benefits are included in the past-due benefits SSA uses to authorize the representative’s fee and to pay the representative’s fee (if the representative is eligible for direct payment).
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SSA disapproves the fee agreement and withholds past-due benefits for possible direct payment of a fee authorized under the fee petition process.
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Claimant was overpaid for a prior period of eligibility. (Although it is necessary to produce a manual fee notice when the claimant was overpaid for a prior period of eligibility, it is not necessary to include information about the overpayment in the fee notice. Unless the claim involves another reason for producing a manual notice, follow the procedures in GN 03940.055C. or GN 03940.055D. to determine the notice content.)
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The authorized fee is computed manually. (Refer to GN 03940.046C. for situations that require manual fee computation.)
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SSA recomputes the claimant’s benefit and makes direct payment to the representative.
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The appointed representative waives a fee.

If a request for administrative review of the authorized fee is filed, the reviewing official modifies the previously authorized fee, and the amount of the assessment changes, a manual notice to explain the assessment is necessary. Such a notice should include text available in DPS, but may also require the CR to draft case specific language. If there is no change in the assessment, a fee notice may not be required because the reviewing official notifies the claimant and the representative of the authorized fee amount resulting from the administrative review.

Language to produce a fee notice manually is in DPS. The templates for situations that require a manual notice are in the “Initial Claims/Fee Agreement” section. Refer to GN 03940.070 for further guidance on preparing manual fee notices in fee agreement cases.

C. Procedure - Title XVI Only Automated Fee Notices

The title XVI system produces automated fee notices in many fee agreement cases. In addition to the standard “Things to Remember” and the “If You Have Questions” sections, these notices include the captions and paragraphs identified in GN 03940.055C.1. and GN 03940.055C.2. Also, refer to GN 03940.055E. if SSA revises an authorized fee amount, and to GN 03940.055F. if the claimant has an interim assistance reimbursement (IAR) agreement with a State agency and the representative is eligible for direct fee payment.

1. CR Disapproves Fee Agreement - No Past-Due Benefits Withheld

The CR is the decision maker when a claim is favorably decided at the initial and reconsideration levels.

When the CR disapproves the fee agreement and there are no past-due benefits, or there are past-due benefits but the representative is not eligible for direct payment, the notice includes UTI XVI720 (FEE038 in DPS), caption XVI358 (ATYC08 in DPS) and UTIs XVI535 (FEE060 in DPS), XVI534 (ATY050 in DPS) and XVI728 (ATYC02, ATY817, ATYC09, and FEE093 in DPS).

2. CR Approves Fee Agreement and Authorizes Fee - No IAR

a. Introduction and Fee Agreement Approval

Use UTI XVI720 (FEE038 in DPS), caption XVI357 (ATYC06 in DPS) and UTI XVI527 (ATY020 in DPS).

b. Authorize Fee

Use caption XVI717 (ATYC10 in DPS) and UTI FEE008 (FEE008 in DPS). In addition:

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When the representative is ineligible for direct payment, use UTI FEE022 (FEE022 in DPS).
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When the representative is eligible for but has waived direct payment, use UTI FEE033 (FEE033 in DPS).
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When the representative is eligible for direct payment and SSA is making direct payment, include the UTIs in GN 03940.070C.2.d.

c. Administrative Review

Use UTI XVI727 (ATYC02, FEE052, FEEC09, and FEE056 in DPS).

d. Past-Due Benefits Withheld for Direct Payment and Paid to One Representative

Use caption FEEC11 (ATYC03 in DPS) and UTIs FEE035 (FEE035 in DPS), FEE046 (FEE080 in DPS) and FEE047 (FEE047 in DPS)

NOTE: If the claimant had an IAR agreement with a State agency, see GN 03940.055F.

3. ALJ or AAJ Approves Fee Agreement - No IAR

a. CR Disapproves Fee Agreement Based on No Past-Due Benefits

Use UTI XVI720 (FEE038 in DPS), and caption XVI358 (FEEC10 in DPS) and UTIs XVI532 (FEE061 in DPS), XVI534 (ATY050 in DPS) and XVI728 (ATYC02, ATY817, ATYC09, and FEE093 in DPS).

NOTE: When an ALJ or AAJ approves a fee agreement, the approval is contingent on whether the claim results in past-due benefits. If it does not, the CR disapproves the fee agreement.

b. CR Authorizes Fee

Use UTI XVI720 (FEE038 in DPS), and caption XVI717 (ATYC10 in DPS) and UTIs FEE003 (FEE003 in DPS) and FEE008 (FEE008 in DPS). In addition:

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When the representative is ineligible for direct payment, use UTI FEE022 (FEE022 in DPS).
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When the representative is eligible for, but waived direct payment, use UTI FEE033 (FEE033 in DPS).

Use UTI XVI727 (ATYC02, FEE052, FEEC09, and FEE056 in DPS) to explain administrative review rights.

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When the representative is eligible for and SSA is making direct payment, use caption FEEC11 (ATYC03 in DPS) and UTIs FEE035 (FEE035 in DPS), FEE046 (FEE080 in DPS) and FEE047 (FEE047 in DPS).

NOTE: If the claimant had an IAR agreement with a State agency, see GN 03940.055F.

D. Procedure - Fee Agreement Approved - Title XVI Automated Notices In Concurrent Claims

1. Title II Fee Amount Known - No Title XVI Past-Due Benefits or Title II Portion of the Fee Equals the Maximum Specified in the Fee Agreement

If there are no title XVI past-due benefits for purposes of authorizing a representative's fee or the title II fee is the maximum fee under the fee agreement, use UTI XVI720 (FEE038 in DPS), and caption XVI717 (ATYC10 in DPS) and UTIs XVI724 [ATY030 (no higher fee based on SSI) or ATY032 (no SSI past-due benefits) in DPS) and XVI727 (ATYC02, FEE052, FEEC09, and FEE056 in DPS).

2. Title II Fee Amount Known - Title XVI Fee Authorized - Representative Not Eligible for Direct Payment

When the SSR interface posts the title II fee information, authorize the title XVI fee and send a notice.

Use UTI XVI720 (FEE038 in DPS), and caption XVI717 (ATYC10 in DPS) and UTIs XVI723 (ATY029 in DPS) and FEE008 (FEE008 in DPS).

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If the title II portion of the fee amount reduces the title XVI fee amount, use UTI XVI726 (ATY027 in DPS).

Use UTI FEE022 (FEE022 in DPS).

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If the claimant’s first check is being sent to a State agency because of IAR, use UTI XVI528 (CHKC07 and CHK002 in DPS).

Use UTI XVI727 (ATYC02, FEE052, FEEC09, and FEE056 in DPS).

3. Title II Fee Amount Known - Title XVI Fee Authorized - Representative Eligible for Direct Payment - No IAR

When the SSR interface posts the title II information, authorize the title XVI fee and send a notice.

Use UTI XVI720 (FEE038 in DPS), and caption XVI717 (ATYC10 in DPS) and UTIs XVI723 (ATY029 in DPS) and FEE008 (FEE008 in DPS)

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If the title II portion of the fee amount reduces the title XVI fee amount, use UTI XVI726 (ATY027 in DPS).
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If the representative is eligible for, but waived direct payment, use UTI FEE033 (FEE033 in DPS).

Use UTI XVI727 (ATYC02, FEE052, FEEC09, and FEE056 in DPS).

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If SSA is making direct payment, use caption FEEC11 (ATYC03 in DPS) and UTIs FEE035 (FEE035 in DPS), FEE046 (FEE080 in DPS) and the appropriate assessment paragraph.
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  If the assessment deducted from the title II direct payment reduced the assessment on the title XVI payment, use UTI FEE048 (FE048 in DPS).
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  If the maximum assessment was deducted from the title II direct payment, use UTI FEE049 (FEE049 in DPS). (See GN 03920.019K. for assessment language.)
NOTE: If the claimant had an IAR agreement with a State agency, see GN 03940.055F.

4. Title II Fee Amount Unknown

Use UTI XVI720 (FEE038 in DPS) and caption XVI719 (use ATYC10 in DPS).

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If a title II CR approved the fee agreement, use UTI XVI721 (FEE062 in DPS). If an ALJ or AAJ approved the fee agreement, use UTI XVI722 (ATY024 in DPS).
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If the representative is eligible for direct payment and benefits are being withheld for possible direct fee payment, also use the caption UTI FEEC11 (ATYC03 in DPS) and UTIs FEE035 (FEE035 in DPS) and FEE039 (FEE039 in DPS).

E. Procedure - Authorized Fee Revised/Recomputed - Direct Payment Not Involved

If SSA recalculates or changes the authorized fee amount after notifying the claimant of the authorized amount and direct payment is not involved, use UTI XVI720 (FEE038 in DPS), the caption UTI XVI717 (ATYC10 in DPS), and UTIs XVI536 (FEE123 in DPS) and FEE008 (FEE008 in DPS).

NOTE: If the fee recalculation involves direct payment or any action that requires manual adjustment, a manual notice is required. Begin with the above sequence of paragraphs and add the appropriate UTIs or prepare case specific language to address the direct payment situation.

F. Procedure - Fee Agreement Approved - Fee Authorized - IAR - Representative Eligible For Direct Payment

When IAR and direct fee payment are involved, SSA reimburses the State agency before making direct payment to the representative. (See SI 02003.025, IAR Payment Processing.) In these cases, it is necessary to include IAR payment information in the fee notice. Many of these notices are automated.

To prepare the fee notice, with two exceptions, follow the procedures in:

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GN 03940.055C.2., CR Approves Fee Agreement and Authorizes Fee - Title XVI Only;
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GN 03940.055C.3., ALJ or AAJ Approves Fee Agreement (Title XVI Only); or
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GN 03940.055D.3., Title II Fee Amount Known - Title XVI Fee Authorized - Concurrent Title II and XVI Claims.

Replace FEE035 (FEE035 in DPS) and FEE046 (FEE080 in DPS) (under the caption FEEC11 (ATYC03 in DPS), “Information About Past-Due Benefits Withheld to Pay (1) (2)”) as described in this chart:

IAR-Direct Payment UTIs (SSI system and DPS)	Situation UTI Describes When Past-Due Benefits Withheld and Fee Authorized	Replaces Non-IAR UTI
FEE040	Withholding for IAR and fee payment and IAR not yet known.	FEE035 (FEE035 in DPS)
FEE041 (use with FEE042, FEE043, FEE044, or FEE045)	IAR known and State agency paid, now advising about direct fee payment	FEE046 (FEE080 in DPS)
FEE042	Paying none of fee to representative.
FEE043	Paying part of fee to representative.
FEE044	Paying fee to representative. No benefits left to pay claimant.
FEE045	Paying fee to representative. Benefits left to pay claimant.

G. References

GN 03940.070, Instructions on preparing a manual notice.

GN 03940.085, Paragraphs to use in a title XVI fee notice.

GN 03920.017, Policy on payment of representative’s fee.

Social Security

Program Operations Manual System (POMS)

GN 03940.055 Title XVI and Concurrent Titles II and XVI Claims - Field Office Processing of the Fee Agreement Notice