Identification Number:
GN 03940 TN 24
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Fee Authorization Under the Fee Agreement Process
Type:POMS Transmittals
Program:Disability
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part GN – General
Chapter 039 – Representation and Representative's Fee
Subchapter 40 – Fee Authorization Under the Fee Agreement Process
Transmittal No. 24, 01/08/2019

Audience

FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, FR, OA, OS, RR, TA, TSC-CSR;
PSC: BA, CA, CCRE, CS, DE, DEC, ICDS, IES, ILPDS, IPDS, ISRA, PETE, RECONR, RECOVR, SCPS, TSA, TST;
OCO-OEIO: BIES, BTE, CIES, CR, CTE, FDEC, PETL, RECONR, RECOVR;
OCO-ODO: BTE, CR, CST, CTE, CTE TE, DS, PETE, PETL, RCOVTA, RECOVR;

Originating Component

ODP

Effective Date

Upon Receipt

Background

This transmittal provides policy and procedures for processing fee agreements. We included editorial corrections, updated content, and reorganized the material for a logical presentation. We also revised the subsection headings to simplify user searches.

Summary of Changes

GN 03940.025 Title II - PC Processing of Fee Agreements on Reconsideration, Hearing or Appeals Council Review Level Claims

We made changes throughout the transmittal to conform to the plain language requirements and to increase clarity and readability.

Title – Processing Center (PC) Processing of Fee Agreements for Title II Claims at the Reconsideration, Hearing, or Appeals Council Levels of Review

We corrected the title for accuracy.

Subsection A – Favorable decisions at the reconsideration level

We combined subsection A and B to increase readability, updated the language, and changed the heading.

Subsection B – Decisions at the Hearing or Appeals Council level

This is the former subsection C. We changed the heading and updated the language. We made significant changes to increase clarity and changed the contact procedure from fax to email.

Subsection C – Process for direct fee payment

This is the former subsection D. We changed the heading and updated the language. We made significant changes to the subsection C. We changed the contact procedure from fax to email, updated all references, and changed the format for contacts from text to table for better flow of policy. We also updated procedure due to the release of Registration, Appointment, and Services for Representatives (RASR) database.

GN 03940.025 Processing Center (PC) Processing of Fee Agreements for Title II Claims at the Reconsideration, Hearing, or Appeals Council Levels of Review

This section provides PC instructions to process fee agreements following partially or fully favorable decisions adjudicated above the initial level. We only not take action on a fee agreement if we favorably decide the claim or post entitlement (PE) action.

A. Favorable reconsideration level decision

The field offices (FO) or the PCs make decisions on fee agreements at the reconsideration level. The FO decisionmaker should approve or disapprove the fee agreement at the time of the favorable decision. If the FO decisionmaker does not make a decision on the fee agreement, the PC decisionmaker must do so. See also:

GN 03940.002 Fee Agreement Decision Maker

GN 03940.003 Fee Agreement Evaluation Procedure - Reconsideration Level

1. Documenting fee agreement determination

Document the fee agreement determination on a Form SSA-553 (Special Determination) or another designated form. Include the specific rationale for the fee agreement approval or disapproval. For sample language of a fee agreement determination, see GN 03940.090C - Exhibit 2.

Activate the representative flag for an electronic folder or annotate and attach the Form SSA-1128 (Representative Involved) if there is a paper claims file.

2. Receiving the claim in the PC for processing

The FO forwards the favorable reconsideration decision with the fee agreement to the PC when the FO cannot complete the processing action. The PC follows the procedures in GN 03940.020D to process the claim.

The PC Claims Specialist (CS) or position designated by the PC, annotates the Special Message fields of the Master Beneficiary Record (MBR) with the representative's name and fee agreement information.

3. Processing the claim with an approved fee agreement and the claim results in past-due benefits

  1. a. 

    Verify through Registration, Appointment, and Services for Representatives (RASR) database that:

    • if the representative is an attorney, the representative is not sanctioned and is currently qualified to be an attorney representative, per GN 03910.020B.1; or

    • if the representative is a non-attorney, the representative is not sanctioned and is eligible for direct fee payment, per GN 03920.018.

  2. b. 

    Process the non-District Office Final Authorization (non-DOFA) claim through MCS or A101/EF101, per the procedures in GN 03940.020E .

  3. c. 

    Withhold 25 percent of the past-due benefits or the amount of the authorized fee, if known, if the representative is eligible for and has not waived the fee or direct payment.

  4. d. 

    Prepare action control record (ACR) when a direct fee payment is involved .

B. Favorable Hearing or Appeals Council level decision

To confirm that the Administrative Law Judge (ALJ) or Administrative Appeals Judge (AAJ) who issued a fully or partially favorably decision approved or disapproved the fee agreement, look in the claim(s) file for either a Form HA-L15 (Fee Agreement Approval), Form HA-L21 (Fee Agreement Denial), or Form HA-517 (Order of Appeals Council). When direct fee payment is involved, see GN 03940.025C in this section.

1. The decisionmaker correctly approved the fee agreement and the claim results in past-due benefits

When the decisionmaker approved the fee agreement in an claim, take these steps:

  1. a. 

    Verify through RASR that:

    • if the representative is an attorney, the representative is not sanctioned and is currently qualified to be an attorney representative, per GN 03910.020B.1; or

    • if the representative is a non-attorney, the representative is not sanctioned and is eligible for direct fee payment, per GN 03920.018.

  2. b. 

    Effectuate the decision following the processing instructions in GN 03940.020C through GN 03940.020E.

  3. c. 

    Send a copy of the award notice, including fee approval language, to the representative.

  4. d. 

    Certify direct payment to the representative who is eligible and release remaining past-due benefits to the claimant and auxiliary(ies), unless:

    • any qualified party or the decisionmaker requested administrative review,

    • windfall offset is pending for concurrent Title II and Title XVI claims, or

    • there is Federal court involvement and authorization is pending for 206(b) fees. For court fees, refer to GN 03920.060 .

2. The decisionmaker correctly approved the fee agreement and the claim does not result in past-due benefits

An ALJ's or AAJ's approval of a fee agreement is contingent on whether the claim results in past-due benefits. For the evaluation policy, see HALLEX I-1-2-12.

Fee agreements can be processed only if the claim, for which the fee agreement was filed, was for entitlement and it resulted in past-due benefits.

Therefore, if the claim does not result in past-due benefits, send a notice advising the representative(s) that the fee agreement cannot be processed, and he or she should file a fee petition in order to charge and collect a fee.

The notice should advise the representative that:

  • we cannot act on the prior fee agreement approval and we must rescind the approval.

  • he or she still needs to have our approval for a fee; include paragraphs ATY817, ATYR03, and 160 in the notice with other required paragraphs and send a copy of the notice to the servicing FO in concurrent Titles II and XVI cases.

3. The decisionmaker disapproved the fee agreement

When the decisionmaker disapproved the fee agreement in the claim, and an appointed representative is eligible for direct payment of fees:

  • effectuate the decision as a fee petition case;

  • withhold 25 percent of the past due benefits;

  • do not include a paragraph stating the fee agreement is disapproved in the notice of award.

The ALJ or AAJ decision notice contains language advising the claimant and representative(s) of the disapproved fee agreement and administrative review rights.

4. Fee agreement was neither approved nor disapproved

  1. a. 

    If the ALJ or AAJ did not make a determination on the fee agreement, do not delay effectuating the decision. Take the following actions:

    • Process the claim.

    • Verify through RASR that:

      • if the representative is an attorney, the representative is not sanctioned and is currently qualified to be an attorney representative, per GN 03910.020B.1; or

      • if the representative is a non-attorney, the representative is not sanctioned and is eligible for direct fee payment, per GN 03920.018.

    • Withhold 25 percent of past-due benefits if the representative is eligible for and did not waive direct payment.

    • Request an incomplete notice in MCS. For instructions, see MS ORS 002.005 .

    • Use the “neutral” language paragraphs regarding representative's fees. For language, refer to GN 03940.075 . Do not include the paragraphs mentioning the fee petition process in the notice.

  2. b. 

    Contact the appropriate office depending on who issued the fully or partially favorable decision: contact the Office of Hearing Operations (OHO) if an ALJ or Attorney Advisor issued the decision; or contact the Attorney Fee Branch (AFB) in the Office of Appellate Operations (OAO) if an AAJ issued the decision.

    In order to obtain a signed determination on the fee agreement:

    • Email a memo to the appropriate hearing office (HO) control box (cc the ALJ and the Hearing Office Director (HOD)) or OAO’s AFB with the date of the fully or partially favorable decision and a reference to the fee agreement in eView. For sample language, see GN 03940.090E .

    • In the email, advise OHO or OAO’s AFB whether an exception to the fee agreement process exists and, if so, which one(s). For exceptions to the fee agreement process, see GN 03940.003D .

    • Document and report (by scanning into eView) any contact with OHO or OAO, including emails about the status of the fee determination.

    • When you receive the determination on the fee agreement, proceed as instructed.

    Refer to the chart for contacts and diaries.

    PC Action ALJ (OHO) AAJ (OAO/AFB)
    Initial contact Diary for 7 days.
    • Send an email message to the HO control email box.

    • cc to the ALJ and the HOD.

    • Use OHO Fee Contacts to obtain the HO control email box information and the name of the HOD.

     

    First follow-up

    Diary for 15 days.

    If you do not receive an acknowledgment:

    • Send a follow-up email to the HO control email box

    • cc the ALJ and the HOD.

    If you did not receive an acknowledgment, follow-up with a:

    • phone call, or

    • email.

    Second follow-up

    Diary for 30 days.

    • Send an email to the Regional Office (RO) control email box.

    • Cc the HOD, ALJ and HO control email box, see language GN 03940.090E .

    • In the follow-up email, refer to the fee agreement and copies of earlier emails scanned to eView.

    • The OHO Fee Contacts provides RO control email box information, HO codes within the respective RO jurisdictions, and the names of each office’s HOD.

    Send a follow-up email to the AFB to |||OARO OAO ATTY FEE BR .

    Third follow-up

    Diary for 30 days.

    (Continue to email reminders until you receive a decision on the fee agreement.)

    • Send an email to the Office of the Chief ALJ (OCALJ) : ^OHO OCALJ Delayed Fee Agreement Protest .

    • Ask OCALJ to follow up on the request.

    • Include the prior emails you sent to the HO and the RO in the email you send to OCALJ.

    • Send earlier emails to the AFB

    • Request they follow up.

    • Include a summary or documentation of previous follow-up actions and the PC contact name and phone number.

5. The fee agreement was approved incorrectly

Challenge the fee agreement approval if there may be a reason to find that the ALJ or AAJ incorrectly approved a fee agreement, such as:

  • the fee agreement does not meet the requirements of the Act, as explained in GN 03940.003B; or

  • an exception to the fee agreement process applies, as explained in GN 03940.003D.

a. Instructions to contact OHO or OAO for the referral

Take the following actions to process the claim and file a protest:

  • Process the claim for payment.

  • Verify through RASR that:

    • if the representative is an attorney, the representative is not sanctioned and is currently qualified to be an attorney representative, per GN 03910.020B.1; or

    • if the representative is a non-attorney, the representative is not sanctioned and is eligible for direct fee payment, per GN 03920.018.

  • Withhold 25 percent of past-due benefits if the representative is eligible for direct payment.

  • Request an incomplete notice.

  • Use the “neutral” language paragraphs regarding representative's fees. For language, refer to paragraphs C through E GN 03940.075 .

  • Prepare a memorandum with the date of the fully or partially favorable decision. Include the PC contact name and phone number and fax the Memorandum into eView folder B (Jurisdictional Documents/Notices section).

Refer to the chart for contacts and diaries.

PC Actions ALJ (OHO) AAJ (OAO)

First contact

Diary for 45 days

(diary subject to local discretion)

  • Prepare a memorandum addressed to the ALJ's Regional Chief ALJ (RCALJ) at the RO.

  • For language, see GN 03940.090F.

  • Email the memo to the RO control email box. The OHO Fee Contacts provides RO control email addresses and hearing office codes within each RO jurisdiction.

NOTE: If the ALJ who approved the fee agreement is also an RCALJ, email the memorandum and follow-ups to OCALJ ( ^OHO OCALJ Delayed Fee Agreement Protest )

First follow-up

Diary for 15 days

Send a follow-up email to the RO control email box, explaining that you have not received information regarding your request for action on the incorrectly approved fee agreement. Send a follow-up email, explaining that you have not received information regarding your request for action on the incorrectly approved fee agreement.

Second follow-up

Diary for 15 days.

(Continue to email reminders until you receive a decision on the fee agreement.)

Email OCALJ ( ^OHO OCALJ Delayed Fee Agreement Protest ) and ask that they follow up on the request. Include the prior emails you sent to the RO in the email you send to OCALJ Email the AFB |||OARO OAO ATTY FEE BR ), and request that they follow up on the request. Include a summary and attach earlier emails, the PC contact name, and phone number.

NOTE: When the decisionmaker approved a fee agreement, assume that the fee agreement was filed timely. Always copy contact emails to paperless ACR or eView.

b. OHO or OAO reply to the referral

1. The fee agreement determination was reversed

When you receive the fee agreement determination reversal copy, diary the claim for 60 days for receipt of a fee petition and fee authorization if the representative is eligible for direct payment.

2. The fee agreement determination was affirmed

When OHO or OAO affirm a fee, the OHO or OAO reviewer uploads a copy of the reviewer’s determination into the A section of eView, and emails a notice of the action to the PC contact.

C. PC reading practices for direct payment of the authorized fee

We use the Payment History Update System (PHUS) to collect the assessment and fee payment amounts in Title II claims and the Processing Center Action Control System (PCACS) to collect representative fee payment volume counts and timeliness.

When a claim involves direct fee payment, follow the instructions in this section to prepare a supplemental Action Control Record (ACR) and to process the approved representative's fee.

1. Initial steps

a. Verify that the claimant appointed a representative

Screen incoming claims and other material for an indication of the involvement of:

  • a representative eligible for direct payment, and

  • a fee agreement (or a fee petition).

b. Establish a representative fee ACR

If the representative is eligible for direct payment and has not waived direct payment of the fee, establish a supplemental representative fee ACR.

Establish this representative fee ACR regardless of whether SSA will pay the fee immediately upon adjudication of the claim or delay payment for any reason. Prepare the ACR in addition to, not instead of, the ACR prepared to control the incoming material.

EXAMPLE: You receive an ALJ fully favorable decision with an approved fee agreement. You take these actions:

  • confirm the representative is eligible for direct payment;

  • confirm representative has not waived a fee or direct payment;

  • Prepare an ACR with a TOEL of APPEAL HEARING;

  • Create a second ACR and assign a TOEL1/2 of ATFEE FEEPAY for a fee agreement.

  • If it is then or later determined that a fee petition is involved, assign a TOEL1/2 of ATFEE PETPAY.

2. Subsequent steps

Subsequent handling of the representative fee ACR depends on both:

  • means by which the fully or partially favorable decision is effectuated, and

  • whether we can pay the fee immediately.

The local PC instructions may call for slightly different routing.

a. Modernized Claim System Earning Computation (MCS EC)

If the claim is processed via MCS EC and the fee can be paid immediately, the technician who does the final sign-off on the MCS EC trigger should FIN (files in) the representative fee ACR after verifying that the fee has been set for payment on the Single Payment System (SPS). For MCS EC award processing, see GN 03940.020E.

If SPS cannot pay the fee automatically (due to multiple representatives or any other reason), the PC decisionmaker sends the representative fee ACR to the Benefit Authorizer (BA).

The BA sends the representative fee ACR to FIN after completing the action to pay the fee.

If the claim processed by MCS and the total fee cannot be set immediately, due to pending development issue(s) or a delayed auxiliary claimant that could affect the fee amount, or it is now a fee petition case, route the representative fee ACR to the DHF PAY location in PCACS.

b. A101/EF101 processing

  • If an A101 or EF101 is used to adjudicate the claim, send both ACRs first to the BA and then to the PHF MACADE location.

  • If we can pay the fee immediately, the BA should FIN the representative fee ACR after confirming that SPS will pay the fee.

  • If the fee cannot be set and paid immediately, route the representative fee ACR first to the BA and PHF MCDE and then to the DHF PAY location pending resolution of the outstanding issue(s).

When you resolve the issues that prevented immediate fee payment, retrieve the representative fee ACR from the DHF PAY location. It will accompany the associated ACR to the BA, PHF MCDE, etc., and read FIN after SPS pays the authorized fee.

 


GN 03940 TN 24 - Fee Authorization Under the Fee Agreement Process - 1/08/2019