TN 20 (08-06)

GN 03940.050 Title XVI - Field Office Processing of Fee Agreements on Favorably Decided Concurrent Title II and Title XVI Claims

A. Procedure – General

1. Preliminary Steps

Before proceeding to the steps in GN 03940.050B., ensure that all the following events have occurred:

  • The representative information is correctly posted to the Supplemental Security Record (SSR) using the Direct SSR Authorized Representative (UATH) screen, and the Representative Fee Update Data (UFEE) screen (MSOM BUSSR 002.013, and MSOM BUSSR 002.014, respectively).

  • The Title XVI claim was paid.

  • The decision maker (Title II claims representative (CR), Administrative Law Judge (ALJ), or Administrative Appeals Judge (AAJ)) approved the fee agreement.

  • The claimant, if mentally incapable, has a payee.

  • The Title XVI CR knows the amount of the Title II portion of the fee.

See MSOM BUSSR 002.016 for general systems processing instructions on concurrent claims.

2. Fee Agreement Determination Pending

If the claim was decided at the initial or reconsideration level and the Title II decision maker has not yet made a determination on the fee agreement, diary the claim for 45 days for the fee agreement determination.

Do not delay effectuating payment. Code the Fee Situation on the UFEE screen as “1 = Unresolved Fee Agreement.” (See MSOM BUSSR 002.014, Representative Fee Update Data (UFEE).)

NOTE: As of September 27, 2008, the system automatically withholds 25% of the title XVI past-due benefits or the remaining past-due benefits if that amount is less than 25% after SSA makes any interim assistance reimbursement. This amount is withheld for direct payment of representative’s 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 is prior to offset of the title XVI past-due benefits. To ensure that direct payment of an authorized fee does not exceed 25% of past-due benefits in a concurrent claim situation, offset the title XVI past-due benefit 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 representative’s fees, and collecting overpayments. This payment is subject to dedicated account and installment payment provisions – see SI 02101.010 and SI 02101.020 .

3. Fee Agreement Approved

If the Title II CR decision maker, ALJ or AAJ approved the fee agreement, and the approval appears correct, determine whether you have information regarding the Title II fee amount. Go to GN 03940.050A.4. Title II Fee Amount Unknown, or GN 03940.050B. Procedure - Title II Fee Amount Known, as appropriate.

4. Title II Fee Amount Unknown

If the Title II portion of the fee, including the auxiliary's(ies') amount, if any, is unknown:

  • diary the claim for 45 days; and

  • send an interim notice advising the claimant and representative that SSA is deferring the fee amount determination until completing the pending Social Security claim, and that upon completing the Social Security claim actions, SSA will send another notice advising them of the fee authorized under Title XVI.

NOTE 1: The SSI Automated Notices System produces a fee notice explaining the situation if:

  • the Fee Status is resolved on the UFEE screen (see MSOM BUSSR 002.014), and

  • the SSR reflects a field office (FO) or Office of Disability Adjudication and Review approval of the fee agreement, and

  • the Title II portion of the fee is unknown.

If there are multiple representatives prepare a manual notice.

NOTE 2: If the claim for the primary Title II beneficiary has been processed, the authorized Title II fee is less than the specified dollar amount of the fee cap as indicated in GN 03940.003A.3. (or any lower maximum fee specified in the fee agreement), and there is an auxiliary claim pending that would involve past-due benefits on which to base an additional Title II fee amount, leave the FEE SITUATION on the Representative Fee Update Data (UFEE) screen as "UNRESOLVED." Although this will create a 2L diary, it will prevent the system from prematurely computing an incorrect Title XVI fee amount.When you know the amount of the Title II portion of the fee, including the auxiliary's(ies') amount, if any, proceed to GN 03940.050B.

NOTE 3: As of September 27, 2008, the system automatically withholds 25% of the title XVI past-due benefits or the remaining past-due benefits if that amount is less than 25% after SSA makes any interim assistance reimbursement. This amount is withheld for direct payment of representative’s 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 is prior to offset of the title XVI past-due benefits. To ensure that direct payment of an authorized fee does not exceed 25% of past-due benefits in a concurrent claim situation, offset the title XVI past-due benefit 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 representative’s fees, and collecting overpayments. This payment is subject to dedicated account and installment payment provisions – see SI 02101.010 and SI 02101.020 .

B. Procedure - Title II Fee Amount Known

1. Automated Processing

The representative's fee is the combined total of the Title II portion of the fee (i.e., wage earner's and auxiliary's(ies'), if any), and the Title XVI portion of the fee. Title II offset is always applied, unless no Title XVI is payable in the offset period per GN 02610.018. Thus, if the Title II claim is effectuated first (i.e., Title II continuing monthly benefits are paid first), all retroactive Title II benefits are still withheld until Title XVI has been paid and the Title II offset amount is determined.

In most concurrent fee agreement cases, FOs can make inputs to the SSR that will trigger the automated computation of the Title XVI fee and issuance of a fee notice to the claimant and representative. Also, after February 27, 2005, when there are past-due benefits available for direct payment and the representative is eligible for direct payment, in many fee agreement cases the SSR will compute the fee assessment and trigger direct payment to the representative.

2. Manual Processing

For situations that exclude a case from automated processing, refer to GN 03940.050C. If the case is excluded from the automated processing, follow the steps below to process the fee agreement in concurrent Title II and Title XVI claims:

a. Step 1

If the Title II portion of the fee specified dollar amount of the fee cap as indicated in GN 03940.003A.3., go to GN 03940.050B.2.e. (Step 5); otherwise, go to GN 03940.050B.2.b. (Step 2).

b. Step 2

To determine the maximum amount you can approve for the Title XVI portion of the fee, subtract the Title II portion of the fee amount from the applicable specified dollar amount of the fee cap as indicated in GN 03940.003A.3, or the maximum fee specified in the fee agreement. Go to GN 03940.050B.2.c.

c. Step 3

To determine the amount of Title XVI retroactive payment that is the past-due benefit amount for fee purposes (see GN 03940.007B.), examine the payment history (PMTH segment), underpayment information (MPMT segment), and computation history (CMPH segment) on the SSID. 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 03920.031C.) and by the Title II offset amounts for months in the past-due period for representative fee purposes (i.e., we reduce the Title XVI retro by the amount of Title XVI that would not have been paid if the Title II benefits had been paid timely). The result is the Title XVI past-due benefits amount for representative fee purposes. Go to GN 03940.050B.2.d. (Step 4).

NOTE: Limit the Title II offset amount to the months that are part of the past-due benefit period for representative fee purposes (e.g., when adjudication of the Title II claim is delayed and the offset period extends beyond the month we effectuate the Title XVI favorable decision made at or below the Appeals Council level).

d. Step 4

If the result at GN 03940.050B.2.c. (Step 2) equals zero, go to GN 03940.050B.2.e. (Step 5). If the result is greater than zero, authorize a fee that equals the least of:

  • 25 percent of the Title XVI past-due benefits; or

  • the percentage of past-due benefits or the flat fee amount specified in the agreement; or

  • the figure derived at GN 03940.050B.2.b. (Step 2).

Enter the total fee (Title XVI fee plus Title II fee) on the UFEE screen in the TXVI and/or TII Manual Fee Agreement Amount block.

e. Step 5

If the representative is eligible for direct payment, follow the procedures in GN 03940.050C. Procedure – Manual Processing When Representative Is Eligible for Direct Payment.

f. Step 6

If the notice is not automated, prepare a Title XVI fee agreement notice (see GN 03940.055 and GN 03940.070).

If you are the decision maker and believe a request for administrative review is appropriate (see GN 03940.001E.), you must file the request within 15 days of the date of the notice.

g. Step 7

When performing the Title II windfall or “real” offset computation, subtract the total authorized representative fees for both titles from the retroactive Title II benefits per SI 02006.203.

C. Procedure – Manual Processing When Representative Is Eligible for Direct Payment

1. General

In most concurrent Title II and Title XVI cases, the computations and notices for initial claims involving a fee agreement and direct payment of the authorized fee are fully automated.

The fee calculation and direct payment of an approved 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 03940.050C.2.)

  • 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 03940.050C.2.)

  • The claimant has multiple representatives. (See GN 03920.050D.2)

  • An eligible spouse's past-due benefits are included in authorizing the claimant's representative's fee. (See GN 03940.052)

  • Start dated records (regardless if the start date month is earlier or later than the beginning of the past-due period subject to fees), force pay records, force due records, and post eligibility cases (i.e., disability cessation appeals).

After determining the Title XVI portion of the fee to authorize based on the Title XVI past-due benefits, in conjunction with the Title II fee, follow the procedures in GN 03940.050.C.2. or 3. to make direct fee payment in the above situations.

NOTE: Concurrent cases which involve representative fees from Title II auxiliaries may now be automated. However, technicians should ensure that the correct total representative fee from the Title II past due benefits has posted to the SSR before automating.

2. Prior Overpayment

Refer to identified section of SM 01901.950C.4. for procedures in these situations:

CASE SITUATION

REFERENCE

Prior overpayment, IAR involved

SM 01901.950C.4.b.

Prior overpayment, No IAR involved

SM 01901.950C.4.e.

In addition, if the claim also involves another exception to automated process listed in GN 03940.050C.1., refer to the procedures in GN 03940.050C.3.

3. Manual Processing Steps

When it is necessary to manually calculate the Title XVI fee amount, and the representative is eligible for direct fee payment, if the Title II fee is equal to or greater than the applicable specified dollar amount of the fee cap as indicated in GN 03940.003A.3. (or the maximum fee based on the fee agreement), go to GN 03940.050C.3.a.; if the Title II fee is less than the specified dollar amount of the fee cap (or maximum fee based on the fee agreement), go to GN 03940.050C.3.b.

a. Title II Fee Equal to the Maximum Specified Dollar Amount of the Fee Cap (or Maximum Fee Based on the Fee Agreement)

NOTE: "Title II fee equal to the maximum specified dollar amount of the fee cap (or the maximum fee under the fee agreement)" refers to the total fee amount approved based on the Title II wage earner's and any auxiliary's past-due benefits, if applicable. For information on the applicable maximum specified dollar amounts of the fee cap, refer to GN 03940.003A.3.

STEPACTIONNOTES

1

Because the Title II fee is the maximum allowed under the fee agreement, the Title XVI fee is 0.

 

2

If the Title II fee has been posted to the SSR, post the automated fee information to the SSR via UFEE using a Fee Status of 1 or 2 (fee agreement approved by FO or HO), and an Involved Claim Type of 1 (Concurrent).

NOTE: The system will determine that no additional fee is due and process the remainder of the actions necessary, including issuing an automated notice.

 

3

If the Title II fee has not been posted to the SSR, post the manual fee information to the SSR via UFEE using a Fee Status of 8 (manually computed fee agreement) and Involved Claim Type of 1 (Concurrent), and the approved Manual Fee Agreement Amount.

Issue a manual notice to explain that we cannot approve a Title XVI fee in addition to the approved maximum Title II fee that has been paid.

 

b. Title II Fee Is Less Than the Maximum Specified Dollar Amount of the Fee Cap (or Maximum Fee Based on the Fee Agreement)

STEPACTIONNOTES

1

Determine the SSI retroactive benefits amount.

 

2

Calculate the Title XVI past-due benefits for fee purposes and the Title XVI fee. In calculating the Title XVI fee, consider the Title II fee amount (i.e., the Title XVI fee cannot be greater than the maximum fee - the Title II fee). For example, if based on the fee agreement the maximum fee for a fee agreement approved on or after June 22, 2009 is $6,000 and the Title II fee is $2,000, the Title XVI fee cannot be more than $4,000.

See GN 03920.031.

   

See GN 03940.050B.

   

3

Determine the amount available to pay by OTP to the representative as follows:

   SSI retroactive benefit amount (from Step 1)

  • IAR amount, if any

    Difference (amount available to pay by OTP to the representative)

 

4

Determine the amount to pay by OTP to the representative and the assessment, if any, as follows:

Compare the Title XVI fee (Step 2) with the amount available (Step 3).

  • If Title XVI fee is greater than the amount available, use the amount available (Step 3) to calculate any assessment and the amount to pay the representative by OTP (amount available – assessment).

  • If Title XVI fee is equal to or less than the amount available, use the Title XVI fee amount (Step 2) to calculate any assessment and the amount to pay the representative by OTP (fee – assessment).

See GN 03920.017E.4. for additional guidance on calculating the amount to pay to the representative

   

See GN 03920.019 Assessment on Representatives Who Receive 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 past-due benefit amount (from Step 1)

  • IAR amount, if any

  • Amount used to collect any assessment and pay the representative by OTP (Step 4)

  • Prior collectible overpayment,