SSA - POMS: GN 03940.046 - Title XVI — Field Office Processing of Fee Agreements on Favorably Decided Title XVI Only Claims

A. Claims Specialist (CS) Actions Based on Decision Levels

1. Initial and Reconsideration Levels

Take the actions listed below to process a fee agreement.

a.

Approve or disapprove the fee agreement using the instructions in GN 03940.003.
b.

Determine if automated or manual fee processing applies. See GN 03940.046C.

In most cases, when the fee agreement is approved, the Supplemental Security Record (SSR) automatically computes the Title XVI fee amount and issues a fee authorization notice. Refer to SM 01308.100, MS 00302.012, MS 00302.013, and MS 00302.014 for information on automated representative fee processing.

If the fee agreement is approved and the case is excluded from automated processing (see GN 03940.046C.2), follow the procedures in GN 03940.046A.1.c through GN 03940.046A.1.g in this section.
c.

Determine the amount of the retroactive payment by examining the payment history (PMTH segment), underpayment information (MPMT segment), and computation history (CMPH segment) on the SSR. (See SM 01311.025 PMTH (Payment History), SM 01601.865 Miscellaneous Payment Data (MPMT), and SM 01601.790 Computation History — CMPH.)
d.

Reduce the Title XVI retroactive payment amount by any benefits and/or payments that are not considered past-due benefits for representative fee purposes. (See GN 03920.031 and GN 03940.007 for information on past-due benefits). The result is the Title XVI past-due benefit amount for the fee computation.
e.
Authorize a fee that equals the least of:
- •
  
  25 percent of the Title XVI past-due benefits;
- •
  
  the percentage of past-due benefits or the flat fee amount specified in the fee agreement; or
- •
  
  the applicable specified dollar amount of the fee cap indicated in GN 03940.003B.3.
  
  NOTE: Refer to GN 03940.052 for policy on calculating the representative's fee in Supplemental Security Income (SSI) couple's cases.
f.

If the representative has not waived their fee and is eligible for direct fee payment, refer to GN 03940.046D for procedures to record the fee and the assessment on the SSR.
g.

Prepare and issue a Title XVI Fee Agreement Notice if a manual notice is required (see GN 03940.008 and GN 03940.055 for notice policy and procedures).

If you are the decision maker (see GN 03960.001D.4) and believe a request for administrative review of the authorized fee amount is appropriate (see GN 03940.001E), you must file the request within 15 days of the date of the notice. See GN 03960.040 for information on requesting administrative review.

2. Hearing or Appeals Council (AC) Level

Verify that the OHO or OAO decision maker (see GN 03940.002C and D) approved the fee agreement by looking for a Form HA-L15 (Fee Agreement Approval) at the hearing level, a Determination of Fee Agreement in the AC Decision, or other fee agreement determination document.

If the fee agreement determination is correct and manual processing is required (see GN 03940.046C), go to GN 03940.046A.1.c.

If the decision maker did not make a determination, see GN 03940.046E.

If you believe the decision maker incorrectly approved the fee agreement, see GN 03940.046F.

Note:

Approval of a fee agreement is contingent on whether the claim results in past-due benefits. (See HALLEX I-1-2-12.) If the claim does not result in past-due benefits, disapprove the fee agreement. Refer to GN 03940.055C.3.a for a description of the fee agreement disapproval notice.

B. Documenting the Fee Agreement Determination

1. Initial and Reconsideration Levels

At the initial and reconsideration level, document the fee agreement determination on an SSA-553 or report of contact (e.g., RPOC). See GN 03905.065B.1 for sample language.

2. Hearing and AC Levels

The decision maker documents the fee agreement determination on a Form HA-L15 (Fee Agreement Approval) at the hearing level, a Determination of Fee Agreement in the Appeals Council Decision, or other fee agreement determination document.

C. Determining if Automated or Manual Processing Is Required

1. Automated Processing

In most Title XVI only cases, the SSR automatically computes a representative's fee and issues the fee notice (refer to SM 01308.100). If the representative has not waived a fee and is eligible for direct payment, the SSR also calculates and deducts the user fee and pays the fee to the representative or eligible entity if there is a valid assignment (GN 03920.021). The cases that are excepted from the automated process are listed in GN 03940.046C.2.

Refer to SM 01308.100, MS 00302.012, MS 00302.013, and MS 00302.014 for information on automated representative fee processing.

The fee calculation and direct payment of an authorized fee are not fully automated in the following situations:

•

There is a prior overpayment (i.e., overpayment for a period outside the award period) that is greater than 75 percent of past-due benefits (see GN 03940.046D.1);
•

Interim assistance reimbursement (IAR) cases with an overpayment for a prior period of eligibility where the sum of the IAR payment and the overpayment is greater than 75 percent of past-due benefits (see GN 03940.046D.1);
•

The claimant has multiple representatives, unless all representatives have assigned direct payment of their fee to the same entity (see GN 03940.046D.2);
•

An eligible spouse’s past-due benefits are included in authorizing the claimant's representative's fee (see GN 03940.046D.2); or
•

Start dated records (regardless of whether the start date month is earlier or later than the beginning of the past-due benefits period ), force pay records, force due records, and post eligibility cases (i.e., disability cessation appeals) (see GN 03940.046D.5).

D. Fee Agreement Approved - Representative(s) Eligible for Direct Payment

1. Prior Overpayment

Manual processing is required when there is an overpayment for a prior period of eligibility that is greater than 75 percent of the past-due benefits. It is also necessary in interim assistance reimbursement (IAR) cases with an overpayment for a prior period of eligibility where the sum of the IAR payment and the overpayment is greater than 75 percent of past-due benefits. Refer to SM 01901.950C.3 for procedures in these situations:

CASE SITUATION	REFERENCE
Prior overpayment, IAR involved	SM 01901.950C.3.b.
Prior overpayment, No IAR involved	SM 01901.950C.3.e.

In addition, if the claim also involves one of the exceptions to automated processing listed in GN 03940.046C.2., refer to the pertinent procedures in GN 03940.046D.2 through GN 03940.046D.6.

2. Multiple Representatives

If all representatives have assigned direct payment of their fees to the same entity, it is not necessary to manually input any information, as payment to the entity will be automated. However, if there are multiple representatives, and at least one did not assign direct payment of their fee to an entity or all did not assign to the same entity, take these additional actions:

•

Ensure that on the Modernized SSI Claims System (MSSICS) UFEE screen, item 3, Multiple Authorized Representatives, is coded “Y.”
•

In item 6, Fee Status, on the MSSICS UFEE screen, select “8,” “Manually computed fee agreement.” (See MS 00302.014.)
•

Manually calculate the fee and the user fee, and divide the fee and the user fee between/among the representatives. If all the representatives have validly assigned direct payment of their fee to the same entity, do not divide the fee and user fee. For multiple representatives see GN 03920.050D.2 and GN 03920.019E.
•

Enter the representative fee and user fee on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).
•

Issue a manual fee notice from the Document Processing System (DPS) to the claimant, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.070).

NOTE: If there is a valid assignment of direct payment of the representative’s fee to an entity, the entity’s POC may need to review fee-related information to resolve fee-related issues. However, 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 it is the minimum amount of information necessary for the POC to review to resolve fee-related issues. Only disclose information that is not relevant or necessary to resolve fee-related issues 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.

Refer to GN 03940.046D.6 for the order in which to take these actions.

3. Eligible Couples – Past-Due Benefits of Both Members of Couple Included in Authorized Fee Amount

Refer to GN 03940.052 for the policy for calculating past-due benefits in an SSI couple’s case. The system will calculate the portion of the authorized fee that is based on the eligible individual's past-due benefits; however, when including the eligible spouse's past-due benefits increases the amount of the authorized fee, take these actions:

•

In item 6, Fee Status, on the MSSICS UFEE screen, select “8,” “Manually computed fee agreement.” (See MMS 00302.014.)
•

Manually calculate the additional fee to authorize based on the eligible spouse's past-due benefits, ensuring that the total fee does not exceed the maximum fee based on the fee agreement.
•

Withhold from the eligible spouse's past-due benefits the amount calculated above and calculate the user fee, if applicable.
•

Enter the representative fee and user fee on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).
•

Issue a manual notice from DPS to the eligible spouse, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.070).

NOTE: If there is a valid assignment of direct payment of a representative's fee to an entity, the entity's POC may need to review fee-related information to resolve fee-related issues. However, do not send a copy of the award notice or other protected information (e.g. claimant or eligible spouse information) to the entity’s POC unless it is the minimum amount of information necessary for the POC to review to resolve fee-related issues. Only disclose information that is not relevant or necessary to resolve fee-related issues if the eligible spouse has expressly consented on a Form SSA-3288 or other written consent that meets the requirements of GN 03305.003.

Refer to GN 03940.046D.6 for the order in which to take these actions.

4. Start Dated Records, Force Pay Records, Force Due Records, and Post Eligibility Cases

If the current SSR record has a start date (regardless of whether the start date month is earlier or later than the beginning of the past-due period subject to fees) or is a force pay record, a force due record, or a post eligibility case (i.e., disability cessation appeal), the SSI system is not programmed to compute the Title XVI portion of the fee. Therefore, the Title XVI portion of the fee must be computed and paid manually. In any of these situations, take these actions:

•

Follow the instructions in MS 00302.013.
•

Enter the representative fee and user fee on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).
•

Issue a manual notice from DPS to the claimant, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.055).

5. Representative Eligible for Direct Payment Waives Fee

When a representative who is eligible for direct payment states the representative will not charge a fee, send a manual notice to the representative to advise the representative how the waiver affects our action. A notice is available in DPS titled, “Atty Fee-Representative Waives Fee.

6. Manually Calculated Fee and Direct Fee Payment

When it is necessary to manually calculate the title XVI fee amount (see GN 03940.046C.2) and the representative has not waived a fee and is eligible for direct fee payment, follow the order below to process the fee action.

STEP	ACTION	NOTES
1	Determine the SSI retroactive benefit amount.	See GN 03940.046A.1.c.
2	Calculate the past-due benefit amount for fee purposes and the title XVI fee (not to exceed the maximum fee specified in the fee agreement).	See GN 03920.031 and GN 03940.046A.1.d and e.
3	Determine the amount available to pay by one time payment (OTP) to the representative or to an entity if there is a valid assignment, as follows: SSI retroactive amount (Step 1) - IAR amount, if any Difference (amount available to pay by OTP to the representative or entity)
4	Determine the user fee amount and the amount to pay by OTP to the representative or the entity as follows: Compare the Title XVI fee (Step 2) with the amount available (Step 3). • If the Title XVI fee is greater than the amount available, use the amount available (Step 3) to calculate the user fee. Subtract the user fee from the amount available, and the remainder will be paid to the representative or entity by OTP. • If the Title XVI fee is equal to or less than the amount available, use the Title XVI fee amount (Step 2) to calculate the user fee. Subtract the user fee from the fee and the remainder will be paid to the representative or entity if there is a valid assignment by OTP.	See GN 03920.019 for additional guidance on calculating the amount to pay to the representative See GN 03920.019 Assessment on Representatives Who Received Direct Payment See GN 03920.025 if the claimant deposited money in an escrow account.
5	Determine the amount to pay by OTP to the claimant as follows: SSI retroactive benefit amount (Step 1) – IAR amount, if any – Amount used to collect the user fee and pay the representative or entity by OTP (Step 4) – Prior collectible overpayment, if any Difference (amount to pay by OTP to the claimant)	Consider installment/dedicated account provisions (See SI 02101.020 and SI 02101.010.) See GN 03920.033 Representative’s Fee – Title XVI Past-Due Benefits Payable
6.	Issue the IAR by OTP. Leave the fee status unresolved.
7.	The following day, post the manual fee information to the SSR via UFEE using a FEE STATUS = 8 and the approved title XVI fee amount (Step 2). The SSR will display FST = M and FMA = the title XVI fee amount.
8	Issue the OTP to the representative or entity if there is a valid assignment in the amount calculated at Step 4, and post the user fee.
9	Issue a manual fee notice.	See GN 03940.008 and GN 03940.055 for notice policy and procedures

Refer to SM 01901.950 One Time Payment (OTP) Processing for Direct Payment for Manual Fee Agreements and Fee Petitions for Appointed Representatives.

E. Fee Agreement Neither Approved nor Disapproved

If the OHO or OAO decision maker did not make a determination on the fee agreement, take the following actions:

1.

Process the claim to payment. Refer to MS 00302.014, for coding the UFEE screen for the unresolved fee.
2.

Contact the Office of Hearings Operations (OHO) hearing or regional office, or the Office of Appellate Operations (OAO) to obtain a signed determination.

If an OHO decision maker issued the favorable decision, e-mail the message to the decision maker's hearing office (HO), with a cc to the decision maker and Hearing Office Director (HOD). Within SSA, use OHO Fee Contacts to find the HO control box and how to identify the HOD. If you do not hear from the HO or decision maker, send another email after one week.

If the Appeals Council issued the favorable decision, contact the Attorney Fee Branch (AFB) in OAO. Send an e-mail message: ^DCARO OAO ATTY FEE BR. If you do not hear from OAO, send another email after one week.

Advise the HO (cc OHO decision maker) or AFB whether an exception to the fee agreement process exists and, if so, which one(s). (See GN 03940.003D for exceptions.)

Email a memo with date of the favorable decision to the HO (cc OHO decision maker) or AFB.

Document the file with a record of any telephone contact.
3.

Diary the case for 15 days.
4.
If you have not received the determination when the diary matures, take the following actions:
- •
  
  E-mail or fax a follow-up memorandum, requesting the order approving or disapproving the fee agreement, to the HO control box with a cc to the HOD, OHO decision maker, and the Regional Office (RO) control box, or to the AFB (^DCARO OAO ATTY FEE BR) with a cc to ^DCARO OAO.
GN 03905.065B.3-5 provides sample memorandum language. OHO Fee Contacts provides RO control email addresses and the codes for the HOs they service.
5.

Re-diary the case for 30 days for the return of the fee agreement determination.
6.

If you have not received the determination or the determination is not in the claim(s) file when the diary matures, forward the earlier e-mail message to the Office of the Chief Administrative Law Judge (OCALJ) or the AFB, as appropriate, and request that they follow-up on the request. For OCALJ, please include a summary or documentation of previous follow-up information, attaching prior emails sent to the HO and RO, and the field office (FO) contact person's name and telephone number.
7.

When you receive the determination on the fee agreement, proceed as shown in GN 03940.046A.2 and GN 03940.055.

NOTE: The system automatically withholds 25 percent of the Title XVI past-due benefits or the remaining past-due benefits if that amount is less than 25 percent after we make any interim assistance reimbursement. This amount is withheld for direct payment of authorized fees in a Title XVI only claim or the Title XVI claim in a concurrent claim situation. Please note that the Title XVI past-due benefits withheld in a concurrent claim situation must be recalculated for representative fee purposes to consider Title II benefits due for the same period. To ensure that direct payment of an authorized fee does not exceed 25 percent of past-due benefits in a concurrent claim situation, calculate the Title XVI past-due benefits for representative fee purposes as if the Title II benefits had been paid timely, per the instructions in GN 03920.031B.2 prior to direct payment of an authorized fee. In addition, the system automatically releases the remaining Title XVI past-due benefits to the claimant after repaying IAR, withholding for authorized fees, and collecting overpayments. This payment is subject to dedicated account and installment payment provisions – see SI 02101.010 and SI 02101.020.

F. Fee Agreement Approved Incorrectly

1. Referral Procedures

If the OHO or OAO decision maker approved the fee agreement but you believe the approval is incorrect because the fee agreement either does not meet the requirements of the Social Security Act or an exception applies (see GN 03940.003), take the following actions:

a. OHO Decision Makers

For an OHO decision maker, prepare a memorandum addressed to the decision maker's RCALJ. See GN 03905.065B.4.

Ensure that your memorandum contains a specific return address to the FO (including the unit number and fax number) and the name of the person who should receive it.

Email the memorandum to the RO. See OHO Fee Contacts for the OHO RO email. Upload or place a copy of the memorandum into the B section of the claim(s) file.

b. OAO Decision Makers

For an OAO decision maker, prepare a memorandum to the OAO Deputy Executive Director. See GN 03905.065B.5. The OAO Deputy Executive Director or designee will determine whether action is needed. Email the above memorandum with a copy of the AC's decision, the Form(s) SSA-1696, the fee agreement, the order approving the fee agreement, and any relevant documents (e.g., information on multiple fee agreements and/or representatives) to: OAO’s Attorney Fee Branch at ^DCAO OAO ATTY FEE BR.

2. Diary

Diary the case for 45 days (or diary subject to local discretion) for OHO or OAO's action on the fee agreement.

3. Follow-Up Procedures

If you do not receive an email from OHO or OAO regarding the action taken, and the determination is not in the claim(s) file, after the diary matures:

•

Follow up with the RO or AFB.
•

Explain that you have not received information regarding your request for OHO's or OAO's action on the incorrectly approved fee agreement.
•

Diary the case for 15 days.
•

If you need to follow-up at the end of the second diary period, re-contact the RO or the AFB by e-mail.

4. Procedures After OHO or OAO Acts on Referral

If OHO or OAO reverses the fee agreement determination, OHO or OAO will upload a copy of the action to the A section of the claim(s) file and notify the servicing FO by email. If there is no associated electronic record, OHO or OAO will email a copy of the action to the servicing FO.

If OHO or OAO affirms the fee agreement determination, OHO or OAO will advise the FO by email to process the representative's fee under the fee agreement process.

G. Procedure — Fee Agreement Disapproved

If the decision on the claim is favorable and the decision maker (Title XVI CR at the initial or reconsideration level, or the OHO decision maker at the hearing level, or OAO decision maker at the AC level) disapproved the fee agreement, take no further action on the fee agreement.

Refer to MS 00302.014 for fee agreement disapproval coding procedures. Also, because the representative may file a fee petition, refer to GN 03930.030.

Social Security

Program Operations Manual System (POMS)

GN 03940.046 Title XVI — Field Office Processing of Fee Agreements on Favorably Decided Title XVI Only Claims

A. Claims Specialist (CS) Actions Based on Decision Levels

1. Initial and Reconsideration Levels

2. Hearing or Appeals Council (AC) Level

B. Documenting the Fee Agreement Determination

1. Initial and Reconsideration Levels

2. Hearing and AC Levels

C. Determining if Automated or Manual Processing Is Required

1. Automated Processing

D. Fee Agreement Approved - Representative(s) Eligible for Direct Payment

1. Prior Overpayment

2. Multiple Representatives

3. Eligible Couples – Past-Due Benefits of Both Members of Couple Included in Authorized Fee Amount

4. Start Dated Records, Force Pay Records, Force Due Records, and Post Eligibility Cases

5. Representative Eligible for Direct Payment Waives Fee

6. Manually Calculated Fee and Direct Fee Payment

E. Fee Agreement Neither Approved nor Disapproved

F. Fee Agreement Approved Incorrectly

1. Referral Procedures

a. OHO Decision Makers

b. OAO Decision Makers

2. Diary

3. Follow-Up Procedures

4. Procedures After OHO or OAO Acts on Referral

G. Procedure — Fee Agreement Disapproved