Under the fee agreement process, when we approve a fee agreement, we use an eligible individual’s and otherwise unrepresented eligible spouse’s Title XVI past-due benefits to calculate:

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  The amount of the fee for services a representative provided in pursuing the eligible individual's benefit rights in proceedings before us. GN 03920.031 defines Title XVI past-due benefits.

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  The amount of benefits to withhold for direct payment to the representative or entity if there is a valid assignment (see GN 03920.021), when:

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    We effectuate the favorable administrative determination or decision (hereinafter "decision");

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    Both the representative and claimant signed the Form SSA-1696 (Claimant's Appointment of a Representative); and

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    We determine that the representative and entity if there is a valid assignment is eligible for direct payment when we effectuate the favorable decision in a Title XVI only claim, or in concurrent Titles II and XVI claims, when we effectuate the decision on the first claim processed.

  See GN 03920.016, Payment of Representative’s Fee, for the definition of “representative eligible to receive direct fee payment” and policy on direct payment to representatives or entities with valid assignments.

See GN 03920.018 for rules for supplemental appointments and policy on the payment of non-attorney representatives.

The Act requires a distinction between the "past-due benefits" amount for authorizing the fee under the fee agreement and the "past-due benefits payable" amount for notice purposes. The terms are not interchangeable.

The first check we send to a claimant may include payment(s) for months after the month of effectuation and may include benefits or payments excluded from the definition of past-due benefits (see GN 03940.007B.). In these situations, the "past-due benefits" amount for calculating the fee under the fee agreement will differ from the "past-due benefits payable" amount (i.e., the amount of the retroactive payment the claimant receives).

The following priority of payment order applies in Title XVI claims, and the Title XVI portion of concurrent Titles II and XVI claims, when there are past-due benefits and direct payment of a representative’s fee to either the representative or the entity if there is a valid assignment, as per GN 03920.021:

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  We reimburse the State if IAR is involved.

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  We pay the representative’s fee, to the extent that the withheld past-due benefits permit, if the claimant’s appointed representative and the entity if there is a valid assignment are eligible for direct payment and the representative has not waived a fee or direct payment. In concurrent Titles II and XVI claims, we calculate the 25 percent amount available for possible direct payment after determining the amount of Title XVI past-due benefits owed had the Title II benefits been paid timely. See GN 02610.053, How to Process Title II Offset Cases When a Representative Fee Is Involved – Action to Apply Offset.

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  If there is an outstanding prior overpayment, we recover the overpayment to the extent possible.

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  We pay any remaining past-due benefits to the claimant.

See GN 03920.033 for policy on Title XVI past-due benefits payable in specific situations and an example. Also, see SI 02101.001, SSI Underpayment Definitions and General Rules; SI 02101.002, SSI Underpayment Due – Recipient Alive; and SI 02101.003, SSI Underpayment Due – Individual Deceased – General.