TN 16 (09-95)

GN 02610.053 How To Process Title II Offset Cases When a Representative Fee Is Involved - Action to Apply Offset (Second Day Action In The PC) Taken On Or After July 1, 1991

A. Policy

1. General

Effective July 1, 1991, the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990) provides that the amount to withhold from retroactive title II benefits toward the attorney's fee is calculated before reduction for title II offset. Further, we must deduct this amount of the fee from the retroactive title II benefits before the title II offset is applied. This applies to fee agreement and fee petition cases.

In some cases, the attorney may charge the beneficiary an additional fee based on past-due title XVI benefits after offset. Beginning February 28, 2005, an attorney or a qualified non-attorney may receive direct payment of a fee based on past-due Title XVI payments. This applies to fee agreements and fee petitions.

See GN 03940.000 and GN 03940.050 for explanation of the attorney fee agreements and amounts. See GN 03930.001 and GN 03930.010 for explanation of the fee petitions and amounts.

2. How This Affects Offset Computations

Under SSI income counting rules, the amount of an approved fee is not counted as income when determining the offset amount per SI 00830.100. Generally, the system will compute the offset amount taking into consideration the representative fee.

However, the FO must adjust the title II income for the fee amount before computing the offset if a manual offset computation is required and there is a fee agreement.

The PC must also request the FO to refigure the offset by adjusting the title II income for the fee amount before the PC applies offset (completes the second day action) if the offset amount computed automatically by the SSR is more than the retroactive title II benefits minus the representative fee.

B. Procedure

1. General

When the PC calls the FO to request a manual offset computation, it will inform the FO if there is a fee agreement or fee petition and give the FO the amount of the fee. The FO will adjust the title II income for the fee amount and use the adjusted amount in the offset computation. See GN 03940.050 for fee amounts in concurrent title II/title XVI claims with fee agreements. See GN 03930.001 and GN 03930.010 for fee amounts in concurrent Title II/Title XVI claims with fee petition.

If the FO recognizes the need for a manual computation because there is a 5W diary on the SSR, if will query the MBR. If there is a WIN of L or an entry in the LPDD field, or there is a representative’s name and address present on the SSR, the FO will contact the PC to obtain the amount of the approved fee. The PC will advise the FO if there is a fee agreement, and the amount of the approved fee.

If the fee amount is unknown, the PC will tell the FO to compute the offset using all the retroactive title II benefits. See MSOM BUSSR 002.016 for instructions. After the fee authorization is received, the FO will adjust the SSI payments according to SI 02006.200, SI 02006.202, and SI 02006.203.

2. Applying TItle XVI Offset

When title XVI offset applies, the FO will process the case in accordance with GN 02610.041 and SM 01320.040. The FO will adjust the title II income for the fee amount before it applies the offset if the fee is known (in fee agreement cases) per SI 02006.200B.2. and GN 03940.050.

3. Applying Title II Offset — Fee Petition Cases

  1. The PC will take the following action in fee petition cases:

     

STEPACTION

1

Calculate the amount to be withheld from the title II PMA in anticipation of direct payment to the representative according to
GN 03920.030.

2

Subtract the Step 1 amount from the retroactive title II benefits.

3

Compare the windfall offset amount (WOA) from the automated offset computation to the results of step 2.

If the WOA is less than the results of step 2 then:

  • Process the offset action according to
    GN 02610.041B., subtract any SSI collectible overpayment (see SI 02220.021).

  • Send the notice in NL 00703.813. Always include paragraph 3816D. If there is a collectible overpayment deducted, use the notice in NL 00703.183. Add the appropriate offset language from the notice in NL 00703.813, following NL 00703.813B. Also use the appropriate attorney fee language.

  • Diary for receipt of the fee authorization and when it is received, follow GN 03930.045 to pay the attorney.

  • Send a copy of the HA-L530-U5, Authorization to Charge and Receive a Fee, or the SSA-1560-U4, Petition to Obtain Approval of a Fee for Representing a Claimant Before the Social Security Administration, to the FO for an adjustment to the title II income. (See FO actions in b. below.)

 

If the WOA is greater than the results of step 2 then:

  • Send the notice in NL 00703.813.

  • Diary the case for receipt of the fee authorization and when it is received, follow step 4 below.

4

Take the following action when the fee authorization is received:

  • Subtract the authorized fee (up to a maximum of 25 percent of the past-due benefits) from the retroactive title II benefits and pay it directly to the attorney.

  • Compare the WOA to the remainder of the retroactive title II benefits.

5

Determine if the WOA is less than the remainder of the retroactive title II benefits.

If yes, process the offset action, subtract any SSI collectible overpayment - see SI 02220.021, and forward a copy of the fee authorization to the FO to process the adjustment of the title II income. Also, the FO must determine if any fee can be paid from Title XVI retroactive benefits. See GN 03940.050 for fee agreements and GN 03930.032 for fee petitions. Send the notice in NL 00703.813. Include paragraph 3816D. If there is a collectible overpayment deducted, use the notice in NL 00703.183. Add the appropriate offset language from the notice in NL 00703.813, following NL 00703.813B. Also use the appropriate attorney fee language.

If no, telephone the FO and request a new offset computation considerating the representative’s fee.

6

Complete the offset action by subtracting the new offset amount furnished by the FO from the retroactive title II benefits. Subtract any SSI collectible overpayment - see SI 02220.021. Send the notice in NL 00703.813. Do not include paragraph 3816D. If there is a collectible overpayment deducted, use the notice in NL 00703.183. Add the appropriate offset language from the notice in NL 00703.813, following NL 00703.813B. Also use the appropriate attorney fee language in NL 00703.813.

CAUTION: Whenever the FO is requested to compute a new offset amount per 5 above, do not send a copy of the fee authorization to the FO after the offset is applied because the adjustment of the title II income has already been done. In the notice of the offset action to the beneficiary, eliminate the instruction to go into the FO for a possible adjustment of SSI payments.

NOTE: Follow the special notice procedures in NL 01001.010 if the notice will be sent to a claimant, beneficiary, or representative payee who alleges being blind or visually impaired.

  1. The FO will take the following actions in fee petition cases:

When the FO receives a copy of the HA-L530-U5 or the SSA-1560- U4 from the PC and the offset has been applied, follow SI 02006.210 ff. to adjust the title II income for the approved representative fee and pay any SSI underpayment.

4. Applying Title II Offset — Fee Agreement Cases

Either the FO or the PC will have taken action to process the title II initial claim and sent a notice to the beneficiary and representative to allow them time to file a protest. (See GN 03940.001 for explanation of the fee agreement process.)

  1. The PC will take the following action when the protest period expires and no protest is received:

STEPACTION

1

Subtract the approved title II fee amount from the retroactive title II benefits. See GN 03930.050 through GN 03930.065 for direct payment to the representative.

2

Compare the WOA from the automated offset computation to the results of Step 1:

  • If the WOA is less, complete the offset action according to GN 02610.041B. Subtract any SSI collectible overpayment (see SI 02220.021). Send the notice in NL 00703.813. Include paragraph 3816D if no SSI overpayment is deducted. If there is a collectible overpayment deducted, use the notice in NL 00703.183. Add the appropriate offset language from the notice in NL 00703.813, following NL 00703.813B. Use the appropriate attorney fee language.

  • If the WOA is greater, contact the FO and request a new computation of the offset after adjusting the title II income for the approved representative fee. When the FO telephones with the results of the new computation, complete the offset action, using the new offset amount. Subtract any SSI collectible overpayment (see SI 02220.021) if there is enough Title II retroactive money. If there is no SSI collectible overpayment, send the notice in NL 00703.813. Do not include any opt