SSA determines the representative's fee under a fee agreement based on past-due benefits as defined in GN 03920.030, Representative’s Fee – Title II Past-Due Benefits, and GN 03920.031, Representative’s Fee – Title XVI Past-Due Benefits. As provided in those sections, in concurrent titles II and XVI claims, for purposes of calculating a representative's fee under the fee agreement process, SSA determines past-due benefits before applying the offset provisions under § 1127 of the Act for the title II claim and after applying the offset provisions under § 1127 for the title XVI claim. Therefore, for purposes of calculating a representative's fee under the fee agreement process, SSA always assumes title II pays first (i.e., that title XVI offset applies), even when this is not the situation.

The title II decision maker approves the fee agreement in concurrent claims when:

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  the fee agreement meets all statutory conditions and none of the exceptions apply; and

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  there are past-due benefits under at least one title.

  NOTE: Before disapproving a fee agreement, in a concurrent case it is necessary to determine if there are title XVI past-due benefits.

Refer to GN 02610.000, Title II/Title XVI (Windfall) Offset, for guidance on title II and title XVI offset cases and processing fee agreements.

In concurrent claims at the initial and reconsideration level, the title II claims representative (CR) approves or disapproves the fee agreement for both titles.

Although the offset, fee calculation and direct payment processes are fully automated in most cases, if the automated process cannot be used, the following manual actions are required.

When SSA pays the title II claim, the title II CR informs the title XVI CR of the action or an interface or diary alerts the CR to the action taken. When the title XVI CR prepares to effectuate the title XVI claim, the CR reviews

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  The APPREP data line of the MBR to get the fee amount authorized based on the title II claim, which is necessary to determine the fee amount to authorize based on the title XVI past-due benefits (see SM 00510.104, Appointed Representation (APPREP) Data line). (The title II CR will have determined the non-attorney’s direct payment status.)

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  The DW01, the MDW or the NOT2 screen to determine if the representative is eligible for direct payment.

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  The Single Payment System (SPS) to determine the assessment amount deducted from the title II fee paid to the representative in order to determine the assessment to deduct, if any, from the fee payable directly to the representative from the title XVI past-due benefits. (SPS is item 27, Payments Outside Title II System, on the SSA Main Menu.)

Refer to the fee agreement procedures in GN 03940.020.

1. 1. 

   Determine the fee amount.

2. 2. 

   Determine the past-due benefits payable after title II offset in order to include that amount in the notice described in GN 03940.030C.5. (See GN 03920.032 for an explanation of why past-due benefits payable is included in the notice.)

3. 3. 

   If representative is a non-attorney, review the EDPNA ISSUE information on the DW01 or MDW screen. If new information is received about the non-attorney’s direct payment status, follow the procedure at GN 03940.020E.1. to determine the non-attorney’s current status.

4. 4. 

   When the representative is eligible for direct payment, refer to GN 02610.053 for instructions on applying title II offset (“second day action” processing).

5. 5. 

   Prepare a notice advising the claimant of the:

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     Title II past-due benefits amount (see GN 03920.030B. for discussion of past-due benefits);

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     Title II past-due benefits payable amount after title II offset;

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     Title II fee amount based on the title II past-due benefits;

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     the right to request administrative review of the fee amount; and

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     payment of the fee to the representative if the representative is eligible for direct payment.

     If you do not know the title II past-due benefits payable after title II offset when you are preparing a Notice of Award, include the appropriate paragraph with the completed fill-in(s) in the post entitlement notice advising the claimant of the offset determination.

6. 6. 

   Send the notice to the claimant and a copy to the representative. Also send an e-mail message to the Office of Disability Adjudication and Review decision maker, if requested, to advise the decision maker of the fee authorization and the fee amount.

   NOTE 1: To request the notification for the purpose of possibly requesting administrative review, the decision maker will flag the claim and provide an e-mail address to which to send the notification.

   NOTE 2: Posting the amount of the authorized fee to the MBR automates the title XVI procedure. If there is a problem with the interface of the information posted to the MBR, the system will generate an alert.

7. 7. 

   Certify direct payment to the representative if no one has requested administrative review (or once SSA completes the review if one was requested), and release any remaining past-due benefits to the claimant and any auxiliary(ies) unless there is a pending court action or if the claimant filed concurrently for title II and title XVI benefits and windfall offset is still pending.

   NOTE 3: If a title II claim involving a representative’s fee is processed after SSA has authorized a fee on the concurrent title XVI claim and the title XVI fee information has been updated to the SPS, the system will generate an SPS exception (91-Invalid Data on Interface Records) and a PCACS alert. The technician must query the SPS to determine the fee amount that has been authorized and paid to the representative based on the title XVI past-due benefits. (Title XVI payments to representatives recorded on the SPS will not have a Payment Identification Code; the status will indicate “SSI PAID.”) Then the technician must manually calculate and input the additional authorized fee amount based on the title II past-due benefits, manually calculate the assessment, and certify direct payment to the representative from the title II past-due benefits. The SPS Processing of the Payment Transaction Menu (SPPT) provides a list of all fees paid from title II and title XVI past-due benefits to attorneys and non-attorneys eligible for direct payment. (See SM 00834.405, SPS Processing of the Payment Transaction Menu (SPPT).)