Identification Number:
GN 03940 TN 37
Intended Audience:See Transmittal Sheet
Originating Office:OARO OAO
Title:Fee Authorization Under the Fee Agreement Process
Type:POMS Transmittals
Program:All Programs
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. 37, 03/17/2021

Audience

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;
FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

OAO

Effective Date

Upon Receipt

Background

This is a Quick Action Transmittal. These revisions do not change or introduce new policy or procedure. We are only clarifying the Agency’s current internal procedure for processing claims that results in no past-due benefits, as already followed by field offices and processing centers. This procedure is already documented elsewhere, such as processing center technician guides and training materials. These revisions further document the process in the POMS to provide an additional resource for these instructions.

Summary of Changes

GN 03940.015 Title II - Field Office Processing of Fee Agreements - General

We added a new subsection, A.4, titled, “Favorable Decision – No Past-Due Benefits” to clarify the fee agreement procedures as documented in field office and processing center technician guides for this scenario.

In subsection G, we updated references to “claims representative” with “claims specialist” to reflect the position’s current title.

GN 03940.020 Title II - PC Processing of Fee Agreements on Initial Level Claims

In subsections D and F, we updated references to “claims authorizer” with “claims specialist” to reflect the position’s current title.

In subsection G, third bullet, we deleted “for paragraphs” for clarity.

We added a new subsection, H, titled, “Procedure – Claim Results in No Past-due Benefits” to clarify the instructions to process these types of fee agreements on initial level claims as documented in field office and processing center technician guides.

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

We added a new subsection, A.4, titled, “Processing the claim that results in no past-due benefits” to clarify the procedures for processing centers to follow when processing these types of claims as documented in processing center technician guides.

In subsection B.4.b., first bullet, we added a citation to where to locate sample language.

In subsections B.4 and B.5, we updated the email address to the Office of Appellate Operation’s Attorney Fee Branch. In B.4, we also made a minor editorial changes.

GN 03940.015 Title II - Field Office Processing of Fee Agreements - General

A. Procedure - Initial Claim

1. Unfavorable Decision

Take no action under the fee agreement process for unfavorably decided claims. (But see GN 03940.001D concerning concurrent titles II and XVI claims.)

2. Favorable Decision – District Office Final Authorization (DOFA)

  1. a. 

    Approve or disapprove the fee agreement, as GN 03940.001D. explains.

  2. b. 

    Document the determination, providing rationale for a disapproval. Form SSA-553 (Special Determination) may be used for this purpose. (See GN 03905.065 Exhibit 1 for sample language.)

  3. c. 

    Annotate the SSA-1128 if there is a paper file. (See GN 03905.025.)

  4. d. 

    Determine if a non-attorney representative is eligible for direct payment by checking the RASR EDPNA Query and record the results on the MCS DW01 screen as follows:

    ISSUE – EDPNA (stands for “eligible direct payment non-attorney)

    REC – Input date of verification

    REMARKS – Based on information on the list, type “Elgble for Direct Pymnt” (or “EDP”), “Not elgble for direct pymnt” (or “NEDP”), or “Not on list.”

    If the non-attorney representative is eligible for direct payment, code the Authorized Representative Type on the NOT2 screen as “4-Eligible for Direct Pay Non-Attorney”. If the non-attorney representative is listed, but is identified as not eligible for direct payment at the time the claim is being processed, or is not listed, at the next step, ensure that the Authorized Representative type on the NOT2 screen is coded “2,” “non-attorney” and that “REP FOR” is typed at the beginning of the address line.

    See GN 03920.017B. for the definitions of “representative eligible for direct fee payment” and “representative ineligible for direct fee payment.” See GN 03920.017C. for policy on direct payment to representatives in title II cases.

  5. e. 

    Follow the instructions in MSOM MCS 009.009 (NOT2 screen), MSOM MCS 008.004 (DW01 screen) and MSOM MCS 014.006 (BCF on BCRN screen). For dual entitlement claims, refer to GN 03940.040.

  6. f. 

    If the case is a Modernized Claim System (MCS) processing limitation, also complete the Benefit Continuity Field, enter the remark “Fee Agreement Case” and the representative's name and address in the A101 (Automated SSA-101) BCRN Screen, and enter the MADCAP fee agreement paragraphs for inclusion in the award notice in the BCRN screen NOTICE field. Refer to MS MSC 014.

  7. g. 

    Place the fee agreement and the fee agreement determination at the top of the claim(s) material, below the claim transmittal sheet.

    When a concurrent title XVI claim also is involved, place a photocopy of the fee agreement and fee agreement determination in the title XVI claim file.

  8. h. 

    Send the file to the appropriate processing center (PC).

  9. i. 

    If you want to know the amount of the authorized fee for the purpose of possibly filing a request for administrative review, check the Single Payment System, the Master Beneficiary Record, or the award notice which is available through the Online Notice Retrieval System. Alternatively, to receive a copy of the notice:

    • annotate the claim(s) transmittal with “Send a copy of [BIC]'s fee amount authorization to [your name and office address]”, and

    • code the NOT1 with your name and office address in the third party name and address fields.

    See GN 03960.010B.2., GN 03960.010C.1. and GN 03960.010C.2. for further information regarding requesting administrative review under the fee agreement process.

3. Favorable Decision - Non-District Office Final Authorization (DOFA)

Follow steps GN 03940.015A.2.c. - GN 03940.015A.2.f.

  • Upon verifying the eligibility for direct payment of a non-attorney, record the results on the Modernized Development Worksheet (MDW), following the input directions in GN 03940.015A.2.d.

  • Do not approve or disapprove the fee agreement because you are not the decision maker in a non-DOFA claim (see GN 03940.002.). Place the fee agreement at the top of the claim(s) material, below the Form SSA-3601. Alert the PC by annotating the claim(s) transmittal with “Fee Agreement Case” and flagging the paper claim file with an SSA-1128.

4. Favorable Decision - No Past-Due Benefits

  • NOT2 for Fee Agreement Type - Leave blank

    • MCS will automatically code ATY04 to DW01 when NOT2 "Fee Agreement Type" is blank

  • NOT2 for Fee Agreement % - Leave blank

  • NOT2 for Fee Agreement Amount - Leave blank

  • NOT2 for the Last Withholding Date - Code the month before the month of adjudication, see GN 03920.030B

  • On the DW01 screen, receipt in the automatic ATY04 with "XXXXXX".

  • Add a new issue for ATY00

    • Add the remark "no past due benefits"next to the ATY00 issue

  • Add an RPOC to document disapproval of fee agreement because no PDBs are involved

  • Notice should advise the claimant and the representative(s) to file a fee petition for his or her fee

    • For cases adjudicated via MCS EC, no additional notices are required, MCS will generate the correct notice.

    • For cases not adjudicated via MCS EC at the initial or recon level, attorney notices should be included on the A101/EF101 in the remarks/notice fields. Technicians should include ATYR15.

  • Delete the automated 098/099 diary on DECI screen, since there are no past-due benefits and SSA will not control for cases that do not result in past-due benefits.

  • After adjudicating the claim via MCS EC, on the following business day, the technician will add a special message to the record showing representative’s name and remark, "Case resulted in no past-due benefits, fee petition, fee paid by claimant".

NOTE:These instructions apply to T2-only cases. For concurrent cases, the "Fee Agreement Type" should be coded as "approved" unless past due benefits for T16 are known. If there ar no past-due benefits for T16 and T2, the "Fee Agreement Type" should be coded using the instructions above.

B. Procedure - Disability Claims

Exclude disability insurance benefits claims, including widow(er)'s and child's insurance based on disability, from the non-medical completion process.

  • Any claim involving a representative who is eligible for direct fee payment and who has not waived a fee is excluded from non-medical completion.

  • Treat a claim involving a representative who is not eligible for direct fee payment and has a fee agreement as a non-medical completion exclusion also.

C. Policy - Auxiliary Claim(S)

In many cases, the PC can authorize the final fee only after adjudicating the auxiliary claim(s). GN 03920.030B. discusses past-due benefits of an auxiliary beneficiary(ies). Refer to GN 03920.035B. for policy on withholding from an auxiliary beneficiary(ies) prior to and beginning with the implementation of Title 2 Redesign Release 3 (T2R3) on June 21, 2004.

When an auxiliary claim(s) is delayed and the amount of the fee based on the primary claimant and any non-delayed auxiliary(ies) is less than the statutory maximum indicated in GN 03940.003B.3., the PC authorizes a partial fee based on the known past-due benefits amount from the primary claimant's and any non-delayed auxiliary's(ies') award(s). The notice advises the number holder and representative of the possibility that the fee may increase once SSA adjudicates the delayed auxiliary(ies) claim(s). NOTE: Effective with the implementation of T2R3, if all the auxiliaries do not reside in the same household, the difference between the fee amount paid by the primary claimant and the authorized fee is prorated between/among all the auxiliaries. Refer to GN 03920.035B.2.b. for proration information.

If the claimant filed concurrent titles II and XVI claims, before authorizing an additional fee based on benefits payable to any delayed auxiliary(ies), query the Single Payment System (SPS) to determine if an additional fee was inadvertently authorized based on title XVI past-due benefits before the total title II fee amount was known. Generally, SSA should not authorize the title XVI fee amount until the total title II fee amount (including fees based on the past-due benefits of any auxiliary beneficiaries) is known (see GN 03940.050). However, if SSA inadvertently authorized a title XVI fee amount early, consider that amount in determining whether the fee agreement provisions provide for the authorization of any additional fee amount.

D. Procedure - Auxiliary Claim(s) Delayed

If it is necessary to consider the delayed auxiliary claims in calculating and/or paying the representative's fee because delayed auxiliary claims processing is not fully automated, take the following actions:

1. Completing the Primary Claimant's Award

  1. a. 

    Follow GN 03940.015A.2. or GN 03940.015A.3. when awarding benefits to the primary claimant and any non-delayed auxiliary(ies). Do not code the fee agreement as “undecided.”

  2. b. 

    Designate an incomplete notice if the case is processed with a manual award.

  3. c. 

    Select paragraphs from GN 03940.080, which explain that the fee amount is an interim action subject to change once SSA adjudicates the delayed auxiliary claim(s), and complete the fill-ins necessary for the award notice. For MCS awards, annotate the NOT3 (see MSOM MCS 009.010 ).

2. Completing the Auxiliary Beneficiary's(ies') Award or Disallowance

a. DOFA Award

Follow the instructions in GN 03940.015A.2.e. or GN 03940.015A.2.f. when forwarding the auxiliary claim(s). The last withholding date (LWD) on the NOT2 screen for the protected auxiliary beneficiary(ies) should agree with the number holder's LWD. Refer to MSOM MCS 009.009 . See GN 03920.035B. for policy on withholding from an auxiliary beneficiary(ies).

b. Non-DOFA Award or Denial

Alert the PC when forwarding the auxiliary claim(s) by annotating the claim(s) transmittal with “Fee Agreement Case” and flagging a paper claim(s) file with an SSA-1128. Take no other action on the fee agreement.

E. Procedure - Reconsideration Level

When the claimant files a request for reconsideration and appoints, or already has appointed, a representative, and either one submits, or already has submitted, a fee agreement, take the following actions.

1. Disability Claim

In a claim for disability benefits, including widow(er)'s and child's insurance based on disability, follow the instructions for initial disability claims in GN 03940.010B., GN 03940.015A. and GN 03940.015B.

2. Retirement or Survivors Claim

Because you are not the decision maker at the reconsideration level in a claim for retirement or survivors insurance benefits, follow the general instructions in GN 03940.010B.1.GN 03940.010B.4., and the instructions for non-DOFA claims in GN 03940.015A.3.

F. Procedure - Hearing or Appeals Council Review Level

Because you are not the decision maker at the Administrative Law Judge (ALJ) hearing or Appeals Council review level, take no action on the fee agreement. Route the fee agreement as shown in GN 03940.010A, GN 03940.010E or GN 03940.010F. Refer to OHO Fee Contacts for hearing office/ALJ routing information.

G. Procedure - PE Issues

The field office (FO) may receive an appointment of representative and a fee agreement when the claimant is pursuing any type of benefit right(s), including post entitlement (PE) actions (e.g., suspension or overpayment) that do not involve adjustment of benefit amounts to which entitlement has already been established (e.g., workers' compensation offset).

1. Claims Specialist (CS) Makes Unfavorable Decision

Take no action under the fee agreement process for unfavorably decided PE issues.

2. CS Makes Favorable Decision

If you make a favorable decision on the PE issue, approve or disapprove the fee agreement. (Refer to GN 03940.003B.5. for information on PE actions that yield past-due benefits.)

The component that effectuates the favorable decision determines the fee authorized under the approved fee agreement. If you want to know the amount of the fee for purposes of possibly filing a request for administrative review (see GN 03960.010B.2., GN 03960.010C.1. and GN 03960.010C.2.), refer to the authorized fee information available through SSA's systems or request a copy of the notice of the fee authorization.

To request a copy of the notice, annotate the claim(s) transmittal as follows:

“Send a copy of [BIC]'s fee amount authorization to [your name and office address].”

3. CS Does Not Make Decision

If you did not make a decision on the PE issue, take no action on the fee agreement. The person who made the favorable decision (i.e., the PC adjudicator, ALJ, or Administrative Appeals Judge) is the decision maker and is responsible for approving or disapproving the fee agreement.

GN 03940.020 Title II - PC Processing of Fee Agreements on Initial Level Claims

A. Procedure - Unfavorable Decision

Take no action under the fee agreement process for unfavorably decided claims. (But see GN 03940.003B.1. concerning concurrent titles II and XVI claims.)

B. Procedure - Favorable Decision - General

Take actions based on whether a claim is District Office Final Authorization (DOFA) or non-DOFA, whether processing is fully or partially automated, and whether the decision maker approved or disapproved the fee agreement.

NOTE: Although the instructions below refer to specific positions, because operating procedures differ among processing centers (PCs), each may designate the position(s) responsible for completing the following actions.

C. Process

These instructions apply to claims the field office (FO) has forwarded to the PC, following GN 03940.015A.2.

1. DOFA Award – Modernized Claim System (MCS)/Single Payment System (SPS) Complete Notice

In fully automated claims with complete notice coding, the system:

  • calculates the fee under the fee agreement process, if the decision maker approved the fee agreement;

  • withholds up to 25 percent of past-due benefits towards direct payment when the representative is eligible for and did not waive direct payment;

  • prepares the award notice advising the claimant and representative of the determination on the fee agreement and, if the decision maker approved the agreement, the amount of the authorized fee;

  • calculates the assessment based on the direct payment amount (see GN 03920.019, Assessment on Representatives Who Receive Direct Payment); and

  • deducts the assessment and pays the balance to a representative who is eligible for and has not waived direct payment, if the payment can be made when the claimant's award is processed.

2. DOFA Award - MCS Incomplete Notice

In claims with incomplete notice coding, the system:

  • withholds 25 percent of past-due benefits towards direct payment when the representative is eligible for and has not waived direct payment; and

  • produces an alert (see MSOM MCS 009.009 ).

D. Procedure - DOFA Award

Apply these procedures to claims the field office (FO) has forwarded to the PC following GN 03940.015A.

1. MCS Earnings Computation (EC) Award with a Notice Alert

If you are a PC Check Claims and Recovery Examiner (CCRE), claims specialist (CS), or claims technical examiner (CTE), take the following actions:

  • If the representative is a non-attorney and information is received that indicates a change in his/her direct payment eligibility, follow the procedures in GN 03940.020E.1. to verify the eligibility and record the results.

  • Identify and complete the necessary paragraphs for the award notice, advising the parties of the decision on the fee agreement. If the decision maker disapproved the fee agreement, advise the parties of the right to request administrative review of the disapproval determination. If the decision maker approved the fee agreement, advise the parties of the fee authorized under the fee agreement and of the right to request administrative review of the authorized fee amount.

  • Annotate the Master Beneficiary Record (MBR) Special Message field with the representative's name and address (list all representatives and identify the principle representative), fee agreement case, the amount of past-due benefits withheld for direct payment, the withholding period, and the authorized fee.

2. A101/Web 101 Award

There is little systems support for processing non-MCS or MCS exclusion claims. Follow general claims processing instructions and take the following additional actions:

  • If the representative is a non-attorney and information is received that indicates a change in his/her direct payment eligibility, follow the procedures in GN 03940.020E.1. to verify the eligibility and record the results.

  • Ensure that the notice language refers to the fee agreement process, advising the parties of the decision on the fee agreement. If the decision maker disapproved the fee agreement, advise the parties of the right to request administrative review of the disapproval determination. If the decision maker approved the fee agreement, advise the parties of the fee authorized under the fee agreement and of the right to request administrative review of the authorized fee amount.

  • Withhold the authorized fee amount (or 25 percent past-due benefits, if the authorized fee amount is not known) if the representative is eligible for direct payment. Also, see the NOTE at GN 03940.007A.

  • Deduct any funds the representative holds in escrow from the authorized amount, if the escrow amount is known.

  • Certify direct payment of the authorized fee less escrow funds and the assessment to the representative who is eligible for direct payment, and release any remaining past-due benefits to the claimant and any auxiliary(ies) unless the claimant filed concurrently for title II and title XVI benefits and windfall offset is still pending.

E. Procedure - NON-DOFA Award

These instructions apply to claims favorably decided by a PC decision maker.

1. MCS EC Award

  • Approve or disapprove the fee agreement, as explained in GN 03940.001D.

  • Determine if a non-attorney is eligible for direct fee payment by checking RASR. See GN 03920.018 Direct Payment for Non-Attorney Representatives, for detailed information. Record the results on the MCS DW01 screen as follows:

    •  

      ISSUE – EDPNA (stands for “eligible direct payment non-attorney)

      REC – Input date of verification

      REMARKS – Based on results of checking the list, type “Elgble for Direct Pymnt” (or “EDP”), “Not elgble for direct pymnt” (or “NEDP”), or “Not on list.”

      If the non-attorney representative is eligible for direct payment, code the Authorized Representative Type on the NOT2 screen “4”, “Eligible for Direct Pay Non-Attorney.” If the non-attorney representative is shown in RASR as not eligible for direct payment at the time the claim is processed, or is not listed, ensure that the Authorized Representative type on the NOT2 screen is coded “2,” “non-attorney.” Show “REP FOR” in the address line.

      See GN 03920.017B. for the definitions of “representative eligible for direct fee payment” and representative ineligible for direct fee payment” and GN 03920.017C. for policy on direct payment to representatives in title II cases.

  • If the non-attorney states he/she is eligible for direct payment but he/she is not eligible, advise the representative that SSA cannot make direct payment. Model language to use in these situations follows:

    You advised your client, (Beneficiary's name), and indicated on the appointment of representative that you are eligible for direct payment. Under titles II and XVI of the Social Security Act, certain non-attorney representatives have the option to have an approved representatives' fees withheld and paid directly from a claimant's past-due benefits. However, [Select the conclusion that describes the status]

    • you do not meet all the qualifications to be eligible for direct payment. or

    • you did not meet all the qualifications to be eligible for direct payment until after we effectuated the favorable decision on your client's claim or

    • you failed to maintain your eligibility for direct payment.

    The law does not permit us to make direct payment of a fee in this case. Accordingly, SSA is not withholding (claimant's name)'s past-due benefits for fee payment purposes and will not pay any authorized fee directly to you. You must look to the claimant for payment of the fee authorized in this case.

  • Follow the instructions for MCS claims processing in MSOM MCS 009.009 , and GN 03940.020D.1 or GN 03940.020D.2., as appropriate.

    NOTE 1: Effective with the implementation of Title 2 Redesign Release 3 on June 21, 2004, MCS withholds the lesser of 25 percent of past-due benefits or the bulleted specified dollar amount of the fee cap indicated in GN 03940.003B.3. if the representative is eligible for direct payment and has not waived direct payment or waived a fee, rather than 25 percent of past-due benefits.

    NOTE 2: The SPS will (1) calculate the assessment based on the fee amount SSA authorizes the representative who is eligible for direct payment to charge and (2) pay the authorized fee, less the assessment, to a representative who is eligible for and has not waived direct payment, if SSA certifies the representative's fee payment when the claimant's award is processed.

  • Release remaining withheld funds, if any, to the beneficiary(ies) unless the claimant filed concurrently for title II and title XVI benefits and windfall offset is still pending, or a court case is pending.

2. A101/EF101 Award

 

  • enter the remark “Fee Agreement Case” and the representative's name and address on the A101 BCRN Screen;

  • follow the procedures in GN 03940.020E.1. that pertain to a non-attorney representative and eligibility for direct payment;

  • withhold 25 percent of past-due benefits, up to the specified dollar amount of the fee cap indicated in GN 03940.003B.3., if the representative is eligible for direct payment; and

  • designate the fee agreement paragraphs for the notice.

F. Procedure - DOFA Award - No Fee Agreement Determination

If the claims representative (CR) neither approved nor disapproved the fee agreement and you are the CS, CTE or Senior Claims Processing Specialist (SCPS):

  • verify with the FO that there was no undocumented reason for not approving the fee agreement;

  • approve or disapprove the fee agreement, as explained in GN 03940.001D.;

  • if the fee agreement is approved and the representative is a non-attorney, check the DW01 for the EDPNA ISSUE to determine if the FO verified the representative's direct payment eligibility. If not, follow the procedures in GN 03940.020E.1.; and

  • follow the procedures for fee authorization, notice preparation, and withholding of past-due benefits (if applicable) in GN 03940.020D.1. or GN 03940.020D.2., as appropriate.

Do not return the fee agreement to the FO.

G. Procedure - Fee Agreement Approved Incorrectly

If you believe the CR incorrectly approved the fee agreement because it either does not meet the requirements of the Act (GN 03940.003B.) or an exception to the fee agreement process applies (GN 03940.003D.), take the following actions:

  • Process the claim to payment.

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

  • Request an incomplete notice, using “neutral” language paragraphs regarding the representative's fee (see GN 03940.075).

  • Refer the claim to a reviewing official (the “reviewer” defined in GN 03960.001D.12.) for a determination on the fee agreement. If the reviewing official agrees that the CR incorrectly approved the fee agreement, the reviewing official will disapprove the fee agreement.

  • If the reviewing official disapproves the fee agreement, prepare and issue a notice advising the claimant and representative of the disapproval.

NOTE: In claims at the initial or reconsideration level, SSA usually will not have notified the claimant and representative of the CR's determination on the fee agreement. Therefore, the notice does not have to “reverse” the prior determination. However, if SSA already issued a notice (e.g., MCS DOFA award), use language in the notice stating SSA is no longer approving the fee agreement because it does not meet the requirements of the Act or is otherwise excepted. At present, this action requires special dictated language.

H. Procedure- Claim Results in No Past-due Benefits

  • NOT2 for FEE Agreement Type - Leave blank

    • MCS will automatically code ATY04 to the DW01 when NOT2 "Fee Agreement Type" is blank

  • NOT2 for Fee Agreement % - Leave blank

  • NOT2 for Fee Agreement Amount - Leave blank

  • NOT2 for Last Withholding Date - Code the month before the month of adjudication, see GN 03920.030B

  • On the DW01 screen, receipt in the automatic ATY04 with "XXXXXX".

  • Add a new issue for ATY00

    • Add the remark "no past due benefits" next to the ATY00 issue

  • Add an RPOC to document disapproval of fee agreement because no PDBs are involved

  • Notice should advise the claimant and the representative(s) to file a fee petition for his or her fee

    • For cases adjudicated via MCS EC, no additional notices are required, MCS will generate the correct notice

    • For cases not adjudicated via MCS EC, attorney notices should be included on the A101/EF101 in the remarks/notice fields, technicians should include ATYR15

  • Delete automatic 098/099 diary on DECI screen, since there are not past-due benefits and SSA will not control for cases that do not result in past-due benefits.

  • After adjudiciating the claim via MCS EC, on the following business day, the technician will add a special message to the record showing representative's name and remark, "Case resulted in no past- due benefits, fee petition, fee paid by claimant."

  • For cases adjudicated via MACADE, technicians will provide the special message to the BA

NOTE:These instructions apply to T2-only cases. For concurrent cases, the 'Fee Agreement Type' should be coded as approved unless past due benefits for T16 are known. If there are no past-due benefits for T16 and T2, the 'Fee Agreement Type' is coded using the instructions above.

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

This section provides processing center (PC) instructions to process fee agreements following partially or fully favorable decisions adjudicated above the initial level. We only 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 03905.065B.1.

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 other staff member 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 the 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.

4. Processing the claim that results in no past-due benefits

  • NOT2 for Fee Agreement Type - Leave blank

    • MCS will automatically code ATY04 to the DW01 when NOT2 "Fee Agreement Type" is blank

  • NOT2 for Fee Agreement% - Leave blank

  • NOT2 for Fee Agreement Amount - Leave blank

  • NOT2 for Last Withholding Date - Code the month before adjudication, see GN 03920.030B

  • On the DW01 screen, receipt in the automatic ATY04 with "XXXXXX".

  • Add a new RPOC to document disapproval of fee agreement because no PDBs are involved

  • Notice should advise the claimant and the representative to file a fee petition for his or her fee

    • For cases adjudicated via MCS EC, no additional notices are required, MCS will generate the correct notice

    • For cases not adjudicated via MCS EC, attorney notices should be included on the A101/EF101 om the remarks/notice fields, technicians should include ATYR15g.

  • Delete automated 098/099 diary on DECI screen, since there are no past-due benefits, SSA will not control for cases that do not result in past-due benefits.

  • After adjudicating the claim via MCS EC, the next day the technician will add a special message to the record showing representative’s name and remark, ‘Case resulted in no past-due benefits, fee petition, fee paid by claimant.

  • For cases adjudicated via MACADE, technicians will provide the special message to the BA.

NOTE:These instructions apply to T2-only cases. For concurrent cases, the "Fee Agreement Type" should be coded as approved unless past-due benefits for T16 are known. If there are no past-due benefits for T16 and T2, the "Fee Agreement Type" is coded using the instructions above.

 

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 a 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, unless any qualified party or the decisionmaker requested administrative review.

  5. e. 

    Release remaining past-due benefits to the claimant and any auxiliaries, unless:

    • 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 the 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 03905.065B.3.

    • 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 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 in GN 03905.065B.3 .

    • 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 ^DCARO 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) at

      ^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 the 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 03905.065B.4 .

  • 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 (^DCARO OAO ATTY FEE BR ), and request that they follow up on the request. Include a summary and attach earlier emails, and 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 the 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:

  • the 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 it will read "FIN" after SPS pays the authorized fee.


GN 03940 TN 37 - Fee Authorization Under the Fee Agreement Process - 3/17/2021