SSA - POMS: GN 03930.040 - Title II - Providing Proper Notice in Claims Involving Representatives Who May Petition

A. Policy

Proper notification helps to ensure that the claimant and the representative understand what actions we have taken and their respective rights and responsibilities. The claims representative (CR) and claims authorizer (CA) or claims technical examiner (CTE) are responsible for providing proper notice in cases they finally adjudicate, although individual processing centers (PCs) may designate employees in other positions (e.g., the reconsideration reviewer or disability specialist) as responsible for providing notice information. The CR and CA/CTE either code the proper notice data or direct others (e.g., the benefit authorizer (BA) or benefit technical examiner (BTE)) to include the correct paragraphs. The CR and CA/CTE also designate which parties receive copies of the notice.

B. Procedure

Send a copy of the claimant's notice (as GN 03910.025A. and NL 00601.010A.4. require) to the representative or, if applicable, the principal representative.

C. Process - MCS

Properly coding MCS claims will produce correct payment, a correct notice to the claimant, and a copy of the notice for the representative.

1. Check/Notice 2 Data

MCS Check/Notice 2 (NOT2) screen provides the data that notifies the system whether to withhold from past-due benefits. The system also uses the data to generate correct notices and payments.

2. Windfall Offset

If the representative is eligible for direct payment and has not waived a fee or direct payment, entering both the representative fee NOT2 data and the windfall (title II or title XVI) offset data by coding a “6” in the Miscellaneous Factors field on the BECF screen will produce:

•

paragraphs ATY002, ATY003, ATY004, ATY005, ATY006, ATY007, ATY 011 (Attorney/Representative Fee Has Not Yet Been Authorized); and
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paragraph WFO002 (SSI Offset-Representative Involved).

Because SSA determines the 25 percent amount to withhold before imposing offset, SSA can notify the claimant and the representative of the amount through the award notice.

Refer to:

•

MCS notice paragraphs about representation, NL 00725.005; and
•

MSOM section 19-H, check/notice2 reference contains data necessary for proper notice content, direction of notices, and payment.

D. Process - MADCAP

When designating the proper paragraphs and fill-ins for notices in claims processed through MADCAP, the CR or PC technician uses the fill-in “lawyer” for attorney representatives and the fill-in “representative” for non-attorney representatives, including non-attorneys eligible for direct payment. The BA/BTE enters the fill-in showing the proper withholding amount, e.g., fill-in (1) in paragraph C18.

The charts in GN 03930.040E and GN 03930.040F outline the most common situations and circumstances.

E. Examples - MADCAP Notice Paragraphs

Situation	Circumstance(s)	Paragraph
1. Withholding for direct payment	Claimant or Claimant and family	C18 C19
2. Windfall offset information pending, withholding for direct payment	Non-critical case or Critical case	L12, fill-in (2) is A L13, fill-in (3) is A
3. Windfall offset information pending, withholding for direct payment	Offset would apply to NH or any beneficiary or Offset would apply to NH with auxiliary(ies)	L14 L21
4. Copy of notice being sent to the representative		C24 with appropriate fill-in(s)
5. Court case, withholding for direct payment	NH or NH and auxiliary(ies)	C15 See GN 03930.040G. , Sample Language for Court Cases.

F. Examples - Manual Notice Paragraphs

Situation	Paragraph(s)
Withholding for direct payment, separate notice to auxiliary	148.2
Questionable relationship between representative eligible for direct payment and client	ATY002, 003, 009
No past-due benefits available (e.g., future month of entitlement or workers' compensation offset)	ATY002, 013, 004
Representative eligible for direct payment waived fee, no withholding	ATY002, 014 MU22
Representative eligible for direct payment waived direct payment	ATY002, 012, 004 MU11
Non-attorney representative ineligible for direct payment, SSA requests fee petition or waiver	ATY010
Non-attorney representative ineligible for direct payment, waived fee	ATY018
Direct payment to representative when making award, non-court case	E3816A, 3816B, or 3816C alone (claimant), or 147.1 (claimant and family)
Direct payment to attorney when making award, court case	E3819, with 3819A or 3819B
Where to send fee petition	160

G. Example - Sample Language for Court Cases

When SSA is withholding past-due benefits, the award notice must include language to advise the attorney representative of their options for receiving a fee. Refer to the sample language below for guidance in drafting language that covers the specific case situation. For concurrent cases, include the title XVI references given as options in the paragraphs below. Refer to paragraph C15 for past-due benefits withholding language to include with the language below, when appropriate.

1. Attorney Representative Submitted Fee Agreement on Case the Court Favorably Decided - Past-Due Benefits Payable

We can not approve the fee agreement filed in this case. Section(s) 206(a) [and 1631(d)(2) of the Social Security Act [42 U.S.C. 406(a) (and 1383)], as amended, provides that “the Commissioner of Social Security shall approve the agreement at the time of the favorable determination.” Because the Federal court allowed your claim, the fee agreement provisions of the Act do not apply.

If your lawyer wishes to receive a fee for the services they provided you before the Social Security Administration, the lawyer must file a fee petition with the Attorney Fee Officer at the Office of Appellate Operations, by mailing to Social Security Administration, Office of Appellate Operations, Attention: Attorney Fee Branch, 6401 Security Blvd, Baltimore, MD 21235-6401.

Section(s) 206(b) and 1631(d) of the Social Security Act, as amended, govern(s) fees for services before the court. Under this section, the judge that issued the favorable decision may also enter an order determining the amount of the fee that your lawyer may charge for services before the court. If your lawyer wishes to receive a fee for those services, they must send the petition for that fee to the court that rendered the decision. Your lawyer should also send a copy of that petition to the United States Attorney's office.

Your lawyer may also petition for a fee under the Equal Access to Justice Act (EAJA). These awards are paid from administrative funds and, unlike fees under section 206 and 1631 of the Act, are not deducted from your past-due benefits. The EAJA specifically provides that where an attorney receives fees for the same work under both section 206(b) and 1631(d) of the Social Security Act and the EAJA, the attorney must refund to you the amount of the smaller fee.

If your lawyer is not going to submit a fee petition to the Attorney Fee Officer and/or petition the court for a fee, they should notify us in writing so that we may distribute any excess funds we withheld from your past-due benefits.

2. Attorney Representative Did Not Submit Fee Agreement on Case SSA Favorably Decided on Remand From the Court

If your lawyer wishes to receive a fee for the services they provided you before the Social Security Administration, your lawyer must file a fee petition with ( 1 ). If your lawyer is not going to file a fee petition with SSA, they should notify us in writing so that we can send you (and your family) any excess funds we withheld from your past-due benefits.

(1)

Name and address of component that has jurisdiction over authorizing fee. Refer to GN 03930.015.

3. Attorney Representative Did Not Submit Fee Agreement on Case Favorably Decided by the Court - Past-Due Benefits Payable

If your lawyer wishes to receive a fee for the services they provided you before the Social Security Administration, they must file a fee petition with the Attorney Fee Officer at the:

Social Security Administration

Office of Appellate Operations (OAO)

Attention: Attorney Fee Branch

6401 Security Blvd

Baltimore, MD 21235-6401.

Section(s) 206(b) and 1631(d) of the Social Security Act, as amended, govern(s) fees for services before the court. Under this section, the judge that issued the favorable decision may also enter an order determining the amount of the fee that your lawyer may charge for the services before the court. If your lawyer wishes to receive a fee for those services, they must send the petition for that fee to the court that rendered the decision. They should also send a copy of that petition to the United States Attorney's office.

Your lawyer may also petition for a fee under the Equal Access to Justice Act (EAJA). These awards are paid from administrative funds and, unlike fees under section 206 and 1631 of the Act, are not deducted from your past-due benefits. The EAJA specifically provides that where an attorney receives fees for the same work under both section 206(b) and 1631(d)of the Social Security Act and the EAJA, the attorney must refund to you the amount of the smaller fee.