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

A. Policy

Proper notification is important to ensure that the claimant and the representative understand what actions we have taken and their respective rights and responsibilities. The claims specialist (CS) is responsible for providing proper notice in cases they 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 CS codes the proper notice data or directs others (e.g., the benefit authorizer (BA), benefit technical examiner (BTE), or post entitlement technical expert (PETE)) to include the correct paragraphs. The CS also designates which parties receive copies of the notice.

NOTE: Even in the limited circumstances described in GN 03930.020A when an entity’s point of contact (POC) may file a fee petition, do not send a copy of the award notice to the POC without the claimant’s prior written consent. For information about the assignment of direct payment of fees to an entity, including the roles and responsibilities of POCs, see GN 03920.021.

B. Procedure

Send a copy of the claimant's notice (as required by GN 03910.025A. and NL 00601.010A.4.) to the principal representative.

C. Process - Modernized Claims System (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 (and the entity, if there is a valid assignment per GN 03920.021) is eligible for direct payment, and the representative 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
•

paragraph WFO002 (SSI Offset-Representative Involved).

Because we calculate the amount to withhold (25 percent of past-due benefits for fee petitions) before imposing offset, we can notify the claimant and the representative of the amount withheld through the award notice.

Refer to MCS notice paragraphs about representation, GN 03930.032 and NL 00725.005.

D. Process - Manual Adjustment Credit and Award Processes (MADCAP)

When designating the proper paragraphs and fill-ins for notices in claims processed through MADCAP, the CS or other PC technician fills in the "representative" line. The BA/BTE or PETE enters the fill-in showing the proper withholding amount, e.g., fill-in (1) in paragraph ATY057.

The charts below 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	ATY057 ATY058
2. Windfall offset information pending, withholding for direct payment	Non-critical case or Critical case	ATY059, fill-in (2) is A ATY60, 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)	ATY068 ATY838
4. Copy of notice being sent to the representative		COP001 with appropriate fill-in(s)
5. Court case, withholding for direct payment	NH or NH and auxiliary(ies)	ATY055 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
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, we request 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 we are withholding past-due benefits, the award notice must include language to advise the claimant about how fees may be authorized for services provided on their claim before the agency or the Federal court. 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 ATY055 for past-due benefits withholding language to include with the language below, when appropriate.

NOTE: In the sample language for court cases, "representative" refers to the individual who provided representational services before us and "court attorney" refers to the individual who provided representational services in Federal court.

1. Representative Submitted Fee Agreement on Case the Court Favorably Decided ("True Court Case") - Past-Due Benefits Payable

We cannot approve the fee agreement filed in this case. The Social Security Act (Act) provides that we approve fee agreements at the time of a favorable decision. Because the Federal court allowed your claim, these fee agreement provisions do not apply.

If your representative (the individual who represented you in agency proceedings) wishes to receive a fee for the services they provided to you before the Social Security Administration, they must mail the fee petition to:

Social Security Administration

Office of Appellate Operations

Attn: Attorney Fee Branch

6401 Security Blvd

Baltimore, MD 21235-6401

If your representative did not provide services to you before the court, this process is the only way they can charge and collect a fee, and they must first obtain our authorization to do so.

The Act also provides for fees for services before the court. The court that made the favorable decision may enter an order determining the amount of the fee that your court attorney (the lawyer who represented you in court) may charge for services before the court. If your court attorney wishes to receive a fee for those services, they must file the petition for that fee with the court that made the decision. We are not able to authorize a fee for services performed before a court.

Your court attorney may also petition the court for a fee under the Equal Access to Justice Act (EAJA). These awards are paid from administrative funds and, unlike fees under 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 the Act and the EAJA, the attorney must refund to you the amount of the smaller fee.

If your representative or court attorney will not ask for a fee or will not ask us to directly pay any authorized fees out of your past-due benefits, they should notify us in writing so that we may distribute to you any excess funds we withheld from your past-due benefits.

2. Representative Did Not Submit Fee Agreement on Case We Favorably Decided on Remand from the Court

If your representative wishes to receive a fee for the services they provided to you before the Social Security Administration, they must file a fee petition with [Name and address of component that has jurisdiction over authorizing fee. Refer to GN 03930.015]. If your representative or court attorney will not ask for a fee or will not ask us to directly pay any authorized fees out of your past-due benefits, they should notify us in writing so that we may distribute to you any excess funds we withheld from your past-due benefits.

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

If your representative (the individual who represented you in agency proceedings) wishes to receive a fee for the services they provided to you before the Social Security Administration, they must file a fee petition at:

Social Security Administration

Office of Appellate Operations

Attn: Attorney Fee Branch

6401 Security Blvd

Baltimore, MD 21235-6401.

The Social Security Act (Act) also provides for fees for services before the court. The court that made the favorable decision may enter an order determining the amount of the fee that your court attorney (the lawyer who represented you in court) may charge for the services before the court. If your court attorney wishes to receive a fee for those services, they must file the petition for that fee with the court that made the decision. We are not able to authorize a fee for services performed before a court.

Your court attorney 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 the Act, are not deducted from your past-due benefits. The EAJA specifically provides that where an attorney receives fees for the same work in a court case under both the Act and the EAJA, the attorney must refund to you the amount of the smaller fee.