TN 14 (03-98)
SI 02006.202 Fee Petition Process—Authorization of Representative Fees and Determination of Amount to Subtract
1. Petition for and Authorization of Title II Fees
SSA or a U.S. District Court must authorize attorney/nonattorney fees. The Office of Hearings Operations (OHO) (an ALJ or the Appeals Council), the District Court, and/or a PSC or ODIO process the representative's petition for a fee.
Prior to February 28 2005, SSA did not withhold funds from either Title II or Title XVI past due benefits for direct payment to nonattorneys. Beginning February 28, 2005 funds are withheld from title II and title XVI for direct payment to both attorneys and nonattorneys.
When a petition is received processing begins after payment of the retroactive title II and title XVI benefits, with 25% of the past-due title II and title XVI benefits withheld to pay any authorized attorney/nonattorney fee. See GN 03940.000 for situations where 100% of title XVI past due benefits are withheld.
Thereafter, SSA or a District Court authorizes a fee and the PSC or ODIO or the FO pays the attorney/nonattorney from the withheld funds.
2. Amounts of Authorized Title II and Title XVI Fees
The 25% withheld from past-due title II and title XVI benefits can be less than the authorized fee.
NOTE: If more information is necessary, refer to GN 03930.000 and or GN 03940.000.
1. Authorization Notice to FO
ODIO or PSC — Per GN 03930.080, for all title II claims when SSI is involved, the PSC or ODIO sends a copy of any notice authorizing a fee to the servicing FO or annotates the Special Message field of the MBR with the authorized fee amount. Use the amount shown in this notice or MBR field to adjust the title II income. The forms involved vary.
Receive a copy of HA-L530-U5 (Authorization to Charge and Receive a Fee)(before 5/94) or SSA-1560A-U5 (Authorization to Charge and Collect a Fee)(since 5/94) from Office of Hearings Operations (OHO) for fees OHO determines. OHO sends the original of the form to the attorney or nonattorney and SSA concurrently notifies the claimant when releasing the past-due benefits. (See GN 03930.075 C.2.)
For court cases, the court notifies the attorney, and notify the claimant of the court-ordered fee via the Notice to Claimant-Court Ordered Attorney Fees (copy to attorney).
In those instances in which fees are authorized by the PSC or ODIO (e.g., in a reconsideration appeal) using SSA-1560A-U5 (Authorization to Charge and Receive a Fee), notify the attorney (or nonattorney) and the claimant.
2. Claimant or Representative Contacts the FO
Sometimes, the first notice to the FO of authorized fees is from a contact by the representative or claimant who received a notice from the Office of Hearing Operations (OHO), a court, a PSC, or ODIO.
Whenever possible, retain or copy the notice. Otherwise, enter the information on an RC. Needed information includes the type of claim, the name and address of the representative, the amount of the authorized fee, the title II and title XVI claims and Social Security numbers involved, and the name of the person(s) obligated.
If the information is incomplete or there is any doubt about the source or any fact, contact the PSC or ODIO for clarification.
Otherwise, examine and use the copy of the notice as you would one received from the PSC or ODIO.
3. Review of Notice
For instructions on preparing manual notices, see NL 00801.010 and GN 03940.060, GN 03940.065, and GN 03940.075.
4. Determination of Amount
a. One Fee Authorized
The amount of the fee to be subtracted for concurrent title II/title XVI or solely for a Title II or Title XVI claim is the entire amount entered in the notice.
Do not refer to or use the attorney's or other representative's petition or any amount in it.
Ignore the amounts withheld or paid from title II benefits by the PSC /ODIO or paid or owed by any beneficiaries. These amounts do not affect the amount that must be subtracted.
b. Authorized Fee Amount Amended
In some cases, further action or review of a prior fee authorization by SSA or a court leads to authorization of an additional fee amount.
If the FO has already processed one of the notices, process the notice received later by reopening the adjustment to take into account the total fee.
If neither notice has been processed, use the total of the original plus the supplemental fee as the authorized fee that must be subtracted.
5. Persons Whose Title II Income is Adjusted (Auxiliaries on Title II Record)
The person(s) obligated for the fee are the claimant(s) specifically named in the notice. Subtract the entire amount of the authorized fee from the title II benefits of the named claimant(s). The fact that the PSC/ODIO may withhold benefits from an auxiliary who is not named in the notice to pay some of the fee does not alter the determination of responsibility.
Assume such an auxiliary is not obligated, absent evidence to the contrary.
Limit this evidence to statements by all of the parties (claimants and representative) that prove the obligation is shared by named and unnamed claimants and show the specific amounts of the authorized fee owed by each claimant.
If an auxiliary, who is also an SSI claimant/recipient, but is not obligated to pay the fee, is subject to windfall offset, there may not be enough money in the auxiliary's retroactive title II benefits to pay the withheld amount to the representative and to process the computed windfall offset amount. When the PSC/ODIO asks the FO to refigure the offset:
Do not adjust the auxiliary's retroactive title II benefits.
Instead, perform an excess offset computation per SM 01320.206 E. by decrementing the offset amount (FOA/SOA) until it is reduced to the amount that is equal to the difference in the auxiliary's total RSDI retroactive benefits less the amount withheld from that retro for the representative fee.