If EI is represented in connection with EI's individual claim and we issue a favorable decision, we will approve the fee agreement if all conditions are met and no exceptions apply, and we will use EI's past-due benefits to calculate EI's representative's fee. If EI is represented and we deny the claim, we will not act on the fee agreement.

If ES is represented in connection with ES's individual claim and we issue a favorable decision, we will approve the fee agreement if all conditions are met and no exceptions apply. We use ES's past-due benefits to calculate ES's representative's fee. In addition, regardless of whether EI signed ES's representative's fee agreement, if ES's representative's efforts result in:

• •

  an increase in EI's benefits, or

• •

  EI's eligibility because of the change in the income/resource requirement;

We will use EI's additional benefits to calculate ES's past-due benefits to determine ES's representative's fee. In this situation, ES's representative could be entitled to a fee of the lesser of the applicable specified dollar amount of the fee cap as indicated in GN 03940.003B.3 or 25 percent of this total (EI's additional benefits and ES's past-due benefits).

If ES's eligibility results in an increase in EI's benefits, SSA will:

• •

  use the difference between the amount EI already received and the additional benefits EI receives because of ES's eligibility (effective with the date of ES's eligibility); and

• •

  add that amount to ES's past-due benefits amount to arrive at the total amount of past-due benefits we must use to authorize ES's representative's fee.

If ES's eligibility does not result in EI's eligibility or an increase in EI's benefits, ES's past-due benefits will be equal to the difference in the amount due to the couple and the amount already paid to EI for the months included in ES's past-due benefits.

EXAMPLE: We paid EI the full individual federal benefit rate (FBR) of $943.00 for 04/24. ES appoints a representative and files for SSI. ES is found eligible and the couple is due the full couple FBR of $1,415.00 for 04/24. We will only pay the difference of $472.00 to ES for 04/24. Therefore, SSA will only include $472.00 for 04/24 in the SSI past-due benefits calculation to determine ES's representative's fee, not 1/2 the couple's FBR.

If we include EI's additional past-due benefits in authorizing ES's representative's fee and if ES's representative has not waived a fee and is eligible for direct payment, We will withhold up to 25 percent of EI's additional past-due benefits for direct payment to the representative or to an eligible entity if there is a valid assignment (see GN 03920.021).

The appropriate decision maker approves or disapproves the fee agreement. If approved:

1. a. 

   Determine the amount of the total monthly payment due to the couple by examining the payment and computation segments on the SSID for each month in ES's retroactive period (i.e., through the month of effectuation).

2. b. 

   Reduce the total payment amount by any benefits and/or payments that are not considered past-due benefits for representative fee purposes (see GN 03940.007B).

3. c. 

   Subtract the SSI payment that EI has already received from the couple payment amount for the corresponding months to determine if there are past-due benefits.

4. d. 

   If the result of step 3 in GN 03940.052C.2.c equals zero (there are no past-due benefits), disapprove the fee agreement. If the result of step 3 of GN 03940.052C.2.c is greater than zero, authorize a fee equal to the least of:

   • •

     25 percent of the couple's SSI past-due benefits;

   • •

     the percentage of past-due benefits or the flat fee amount specified in the fee agreement (if the percentage is less than 25 percent of past-due benefits or is a flat fee less than the specified dollar amount of the fee cap as indicated in GN 03940.003B.3); or

   • •

     the specified dollar amount of the fee cap as indicated in GN 03940.003B.3.

5. e. 

   Prepare and issue the Title XVI Fee Agreement Notice.

   NOTE: If there is a valid assignment of direct payment of a representative’s fee to an entity, do not send a copy of the award notice or other protected information (e.g., claimant information) to the entity’s point of contact (POC) unless the information included is the minimum amount of information necessary for the POC to review to resolve fee-related issues. For information that is not relevant or necessary to resolving fee-related issues, only disclose such information if the claimant has expressly consented on a Form SSA-3288 or other written consent that meets the requirements of GN 03305.003. For information on assignment of direct payment of fees, including the roles and responsibilities of a POC, see GN 03920.021.

If you are the decision maker and believe a request for administrative review of the authorized fee is appropriate (see GN 03940.001E.), you must file the request within 15 days of the date of the notice. Also see GN 03960.040 for information regarding filing for administrative review.

ES's representative's fee is the combined total of the Title II portion of the fee (i.e., wage earner's and any auxiliary's), and the Title XVI portion of the fee. Follow the steps below to process an approved fee agreement in concurrent Titles II and XVI claims.

Bob (AI) has been receiving Title II and Title XVI SSI benefits for several years. In 2021, Bob's Title II benefits are $499.00 per month and Bob's SSI payments are $195.00 per month.

Bob's spouse, Jane, files for SSI only on 03/07/21. Jane appoints a representative, who files a fee agreement. On 10/20/21, the Administrative Law Judge (ALJ) finds Jane disabled as of 03/07/21 and approves the representative’s fee agreement. After a PERC (pre-effectuation review contact), Jane receives the SSI retroactive payment on 11/22/21. Because of Jane's eligibility, Bob receives an additional Title XVI retroactive payment for 04/21 - 11/21 (8 months).

Determine the representative's fee resulting from Jane's SSI eligibility by following steps a. through d. in GN 03940.052C.1. This is the fee we may authorize to the representative Jane appointed.

• •

  The couple's total SSI benefits are $4,256.00, computed on the SSR as follows:

  $1,191.00  (Couple FBR)

   - $479.00 (Countable Income (Bob's Title II of $499.00 - $20.00))

   $712.00 (Couple payment amount x 8 months = $5,696.00)

• •

  Bob has already received $1,560.00 ($195.00 x 8) in SSI benefits for 04/21 -11/21.

   $5,696.00 (Couple's total benefits)

  -$1,560.00 (Amount Bob already received)

   $4,136.00 (Couple's actual past-due benefits amount)

• •

  Because there are past-due benefits resulting from Jane's eligibility for SSI, and the fee agreement provided for a fee of the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap ($7,200.00 at the time), the fee in this case is $1,034.00, or 25 percent of $4,136.00.

Jane's eligibility results in additional retroactive benefits to the couple, and SSA uses the couple's additional past-due benefits to calculate the representative's fee.

Jim, age 65, and Jim's spouse Mary, a disabled spouse, age 60, file for SSI on 01/10/22. Jim already receives Title II benefits of $605.00 per month. Jim's Title II benefit increases to $623.00 per month in 2023.

Mary is not insured or entitled to any Title II benefits. Jim will not be eligible for SSI unless Mary's SSI claim is approved. Mary appoints a representative to assist with the Title XVI claim, and the representative submits a fee agreement. On 09/10/22, the ALJ finds Mary disabled as of 01/10/22 and approves the representative’s fee agreement. Both Mary and Jim are now eligible for SSI and their retroactive SSI payments are issued on 10/25/23.

Determine the representative's fee based on Mary's fee agreement with the representative by following steps GN 03940.052C.1.a through GN 03940.052C.1.d:

• •

  The couple's maximum potential benefits are $8,161.00 ($4,080.50 for Jim and $4,080.50 for Mary) in SSI benefits for 02/22 - 10/23, computed on the SSR as follows:

 $1,261.00 (Couple Federal Benefit Rate (FBR) for 2022)

 -$585.00 (Countable Income (Jim's Title II of $605.00 - $20.00))

 $676.00 (Couple Payment Amount for 02/22 - 12/22 ($676 x 11 = $7,436.00))

 

 $1,371.00 (Couple FBR for 2023)

-$  603.00 (Countable Income (Jim's title II of $623.00 - $20.00))

 $768.00 (Couple Payment Amount for 01/23 -10/23 ($768 x 10 = $7,680.00)

Therefore, the past-due benefits are $7,346.00 + $7,680.00 = $15,116.00.

• •

  All retroactive benefits are past-due benefits for representative fee purposes.

• •

  Jim was not previously eligible for SSI benefits; therefore, there is nothing to subtract from the past-due benefits amount.

• •

  Because there are past-due benefits and the fee agreement provided for a fee of the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap indicated in GN 03940.003B.3, the fee in this case is $3,779 , or 25 percent of $15,116.00.

Mary's eligibility results in Jim's eligibility for SSI; therefore, we use the couple's past-due benefits to calculate Mary's representative's fee.

Nathan and Kate filed for SSI on 12/12/21. Kate also filed for Title II benefits. Nathan's SSI claim was approved and Nathan received the first SSI payment in 07/22. Nathan was represented and we authorized a fee to the representative based on an approved fee agreement. Nathan was paid the full FBR as an individual because Kate's initial claim was denied and the couple had no Federal countable income. Nathan was paid $637.00 per month from 01/22 to 12/22, and $674 per month from 01/23 to 06/23.

On 06/02/23, the ALJ issued a favorable Title II and Title XVI decision finding Kate disabled as of 01/03/21. In June 2023, Kate received the SSI retroactive payment of $5,850.00 (the difference between the couple's FBR and the individual FBR for 01/22 to 06/23). Kate received the first recurring SSI payment in July 2023.

Kate's Title II waiting period was 02/21-06/21. Kate received the first monthly Title II check in August 2023, a current monthly amount (CMA) of $358.00. We withheld Title II retroactive benefits of $8,379.00 for the months of 07/21 - 06/23 (benefits that would have been paid in 08/21 - 07/23) pending windfall offset and representative fee adjustment. Kate’s Title II monthly benefit amount (MBA) rates are shown on the Master Beneficiary Record (MBR) as $337.00 for 7/21-11/21, $349.00 for 12/21-11/22, and $358.00 for 12/22 and continuing.

Determine the representative's fee based on Kate's fee agreement with the representative by following steps a. through e. in GN 03940.052C.2:

• •

  The representative fee based on Title II past-due benefits is $2,094.75 according to the APPREP data line on the MBR. We may authorize total representative fees based on Title II and Title XVI past due benefits in an amount not to exceed the lesser of 25% of past due benefits or the specified dollar cap as indicated in GN 03940.003B.3.

• •

  Determine Kate's SSI past-due benefits for the fee computation on a month-by-month basis. Per GN 03940.052C.2.c, determine the amount of Title XVI benefits the couple would have received for each month included in Kate's retroactive payment, if Kate's retroactive Title II benefits had been paid first and when due.

• •

  Subtract the actual amount of SSI that SSA has already paid to Nathan for the same months.

See summary calculation in the table below:

 

$1,261.00 (Couple FBR for 2008)

 -$329.00 (Kate's Title II rate of $349.00 - 20.00)

  *$932.00 (Amount couple would have been due for each month 01/22 - 12/22)

 

$1,371.00 (Couple FBR for 2023)

 -$338.00 (Kate's Title II rate of $358.00 - 20.00)

**$1,033.00 (Amount couple would have been due for each month 01/23 - 06/23

• •

  If the “Amount Couple Due” each month is MORE than the amount Nathan received that month, the difference is the SSI past-due benefits for that month. If the “Amount Couple Due” each month is LESS than the amount Nathan received each month, then there are no past-due benefits for that month. In this case, there are no past-due benefits. Therefore, we cannot authorize an additional fee to Kate's representative for services provided in connection with Kate's SSI claim.

Sam and Charlotte filed for SSI on 05/30/22. Charlotte also filed for Title II benefits. Charlotte appointed a representative, who submitted a fee agreement. The fee agreement called for a fee of the lesser of 25% of past-due benefits or the specified dollar cap at the time of $6,000.00. Sam's SSI claim was approved and Sam began receiving SSI payments in 06/22. Sam was paid the full FBR for an individual for 06/22 - 08/23 because Charlotte's initial claim was denied.

In July 2023, the ALJ issued a favorable Title II and Title XVI decision finding Charlotte disabled as of 02/10/22, and approved the fee agreement. Charlotte received the retroactive SSI payment of $5,886.00 in August 2023 (the difference between the couple's FBR and the individual's FBR). Charlotte's Title II waiting period was 03/22 - 07/22. Charlotte received the first monthly Title II check in September 2023, a CMA of $509.00. SSA withheld Title II retroactive benefits of $6,064.00 for the months of 08/22 - 07/23 (benefits that would have been paid in 09/22 - 08/23) pending windfall offset and representative fee adjustment. Charlotte's Title II MBA rates are shown on the MBR as $498.00 for 08/22 - 11/2, and $509.00 for 12/22 and continuing.

Determine the representative's fee based on Charlotte's fee agreement with the representative by following steps a. through e. in GN 03940.052C.2:

• •

  The representative fee based on Title II past-due benefits is $1,516.00 according to the amount on the APPREP data line on the MBR. Based on the fee agreement between Charlotte and the representative, and based on the statutory limits outlined in GN 03940.003B.3, we may authorize total representative fees (based on Title II and Title XVI past due benefits) in an amount not to exceed the lesser of 25% of past due benefits or the specified dollar cap.

• •

  Determine Charlotte's SSI past-due benefits for the fee computation. Per GN 03940.052C.2.c, determine the amount the couple would have received for each month included in Charlotte's retroactive payment, if Charlotte's retroactive Title II benefits had been paid first and when due.

• •

  Subtract the actual amount of SSI that Sam has already been paid for the same months.

See summary calculation in the table below.

 

$1,261.00 (Couple FBR for 2022)

 - 0.00 (No Title II retro due for 06/22 - 10/22; no countable income)

*$1,261.00 (Amount couple due for 6/22 - 10/22)

 

$1,261.00 (Couple FBR for 2022)

- $478.00 (Charlotte's Title II rate of $498.00 - $20.00)

**$783.00 (Amount couple would have been due for 11/22 - 12/22)

 

$1,371.00 (Couple FBR for 2023)

 - $489.00 (Charlotte's Title II rate of $509.00 - $20.00)

***$882.00 (Amount couple would have been due for 01/23 - 08/23

 

• •

  If the “Amount Couple Due” for a month is MORE than what Sam received for that month, the difference is the SSI past-due benefit for that month. If the “Amount Couple Due” for a month is LESS than what Sam received for that month, then there are no past-due benefits for that month. Offset any negative amount for a month against any additional amounts due for other months in the withholding period to arrive at the past-due benefits. In this case, there are past-due benefits of $61.00.

• •

  Authorize a fee that is the lesser of:

  • –

    25 percent of the SSI past-due benefits (25 percent of $61.00 is $15.25)

    OR

  • –

    The fee cap. To calculate the remaining representative fee we could authorize from Title XVI past-due benefits based on the fee cap, subtract the Title II fee already authorized from the applicable fee cap. In this example, the fee cap at the time was $7,200.00 ($7,200.00 - $1,516.00= $5,684.00);

  Since $15.25 is less than $5,684.00, we will authorize a fee of $15.25 based on Title XVI past-due benefits.

• •

  Prepare and issue the SSI Fee Agreement Notice authorizing a Title XVI fee of $15.25.