We determine the representative’s fee under a fee agreement based on past-due benefits as defined in GN 03920.030 for Title II and GN 03920.031 for Title XVI. 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, we determine past-due benefits before applying the offset provisions under § 1127 of the Social Security Act (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, we always assume 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, the FO must 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 specialist (CS) 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 we pay the Title II claim an interface or diary alerts the Title XVI CS of the action, or, if it does not, the Title II CS informs the Title XVI CS of the action. When the Title XVI CS prepares to effectuate the Title XVI claim, the CS 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 CS will have determined the non-attorney’s direct payment status.

• •

  The Representative, Appointment, Services, and Registration (RASR) application to determine if the representative is eligible for direct payment. If a representative has validly assigned direct payment of their authorized fee to an entity as per GN 03920.021, determine if that entity is eligible to receive direct payment of fees by querying RASR to ensure that the entity has registered and has not been placed on the Ineligible for Direct Payment Entity list.

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  The Single Payment System (SPS) to determine the assessment amount deducted from the Title II fee paid to the representative or entity in order to determine the assessment to deduct, if any, from the fee payable directly to the representative, or to the entity if there is a valid assignment, 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 before Title II offset in order to include that amount in the notice described later in this subsection, 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 the representative is a non-attorney, review the Eligible for Direct Pay Non-Attorney (EDPNA) query in RASR. 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:

   • •

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

   • •

     Title II past-due benefits payable amount before Title II offset if known;

   • •

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

   • •

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

   • •

     Payment of the fee to the representative if the representative is eligible for direct payment, or to an entity if there is a valid assignment.

     If you do not know the Title II past-due benefits payable before Title II offset when you are preparing a Notice of Award advise the claimant that we are withholding all past-due benefits until we know if any Title XVI benefits the claimant received will reduce the Title II past-due benefits amount. The notice will inform the claimant that we will issue another notice when we determine the amount of benefits due after consideration of any necessary adjustments. When preparing the post entitlement notice, include the appropriate paragraph with the completed fill-in(s) to advise 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 Hearings Operations (OHO) or Office of Appellate Operations (OAO) decision maker, if requested, to advise the decision maker that the award notice with the fee authorization and the fee amount is available in the Online Retrieval System (ORS).

   NOTE 1: To request the notification for the purpose of possibly requesting administrative review, the OHO or OAO decision maker will flag the claim and provide an e-mail address to which to send the notification. Refer to Hearings, Appeals, and Litigation (HALLEX) manual I-1-2-45 for the initial procedures an OHO or OAO decision maker will follow to request administrative review of the fee amount.

   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, or to an eligible entity if there is a valid assignment and release any remaining past-due benefits to the claimant and any auxiliaries unless there is Federal court involvement 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 we have 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 Processing Center Action Control System (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 or to an entity if there is a valid assignment. 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, non-attorneys eligible for direct payment, and entities when the technician selects “Option 3”. To view fees paid to entities, enter an X in the query line above a fee paid and the system will display if direct payment of the fee was assigned to an entity. See SM 00834.405, SPS Processing of the Payment Transaction Menu (SPPT).