Identification Number:
GN 03920 TN 26
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Administering Representatives Fees Provisions
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part GN – General
Chapter 039 – Representation and Representative's Fee
Subchapter 20 – Administering Representatives Fees Provisions
Transmittal No. 26, 06/25/2019

Audience

PSC: BA, CA, CS, DE, DEC, DS, ICDS, IES, ES, PETE, RECOVR, SCPS, TSA, TST;
OCO-OEIO: BIES, CAQCR, CR, PETL, RECONR;
OCO-ODO: BTE, CR, CST, CTE, DS, PETE, PETL, RECOVR;
FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

ODP

Effective Date

Upon Receipt

Background

The Social Security Act (Act) requires the Commissioner to authorize fees charged by representatives for services provided in connection with a claim. See sections 206 and 1631(d)(2) of the Act. Our regulations in 20 CFR 404.1740(c)(2) and 416.1540(c)(2) further specify that a representative may not “knowingly charge, collect or retain, or make any arrangement to charge, collect or retain, from any source, directly or indirectly, any fee for representational services in violation of applicable law or regulation.” Sections 20 CFR 404.1703 and 416.1520 define “representational services” as services performed for a claimant in connection with any claim the claimant has before us, any asserted right the claimant may have for an initial or reconsidered determination, and any decision or action by an administrative law judge or the Appeals Council.

Summary of Changes

GN 03920.007 Legal Services Not Subject to Fee Authorization

We are publishing this new section to clarify which services performed by an individual or an appointed representative are not representational services in connection with a claim, and which are, and must be authorized prior to the representative's charging and collecting them..

 

GN 03920.007 Legal and Specialized Services Not Subject to Fee Authorization

Citations: Social Security Act, Sections 206(a)(1) , 1631(d)(2) . Federal Regulations Sections 20 CFR 404.1703 , 20 CFR 416.1503 .

A. When we need to authorize fees

Section 206 of the Social Security Act requires us to authorize a representative’s fee when the representative’s services are performed “in connection with” a claim before the agency. However, the statute does not specify what services might be considered to have been performed “in connection with” a claim.

In this section, we provide examples of some services we believe do not generally implicate this statutory requirement and for which we do not need to authorize the representative’s fee. Certain services are so specialized and unrelated to our processes (e.g., filing taxes or preparing adoption papers) that we generally will consider them not performed in connection with a claim. However, there may be some exceptions even with these types of services. If a representative performs one of the services identified in section B, below, but it is performed in connection with a claim before us, the representative or claimant must ask us to authorize the representative’s fee via a fee petition or fee agreement before the representative can collect a fee .

B. Types of services that may not require us to authorize the fee

This list provides examples of services that may be performed separate from (and not in connection with) a claim and, if so, would not be subject to our fee authorization. Types of services that may not require us to authorize the fee include, but are not limited to:

  • Preparing legal documents for an adoption;

  • Performing legal work in guardianships

  • Advising on labor issues (e.g., occupational licensing, unemployment, equal employment opportunity, family leave, grievances, whistleblower protection);

  • Filing taxes;

  • Handling inheritance matters; and

  • Establishing a trust account.

C. Types of services that generally require us to authorize the fee

This list provides examples of services that generally are performed in connection with a claim and, if so, will be subject to mandatory fee authorizations. Types of services that generally require us to authorize the fee include, but are not limited to:

Providing assistance with -

  • Obtaining a replacement social security card;

  • Obtaining a Medicare card;

  • Applying for Social Security monthly benefits, Supplemental Security Income (SSI) payments, or a lump-sum death payment;

  • A request to establish or continue a period of disability;

  • A request to modify the amount of benefits or the reinstatement of benefits;

  • The application and obtaining retirement benefits;

  • A request to waive recovery of an overpayment, or an appeal of an overpayment waiver denial determination; and

  • Obtaining an updated or revised earnings record.

D. Examples

The following examples are provided to help illustrate the correct policy application:

Example 1.

Mary Smith, a woman whom we have found disabled under title II and allowed monthly disability benefits, hires an attorney, Ms. Roberts, to establish a trust with $10,000 in assets. We do not need to authorize Ms. Roberts’ fee for the services provided to establish the trust.

  • Explanation: An attorney may establish a trust for an individual who is already receiving benefits without the need of our authorization of the fee he or she seeks, so long as the trust was not established to protect continuation of SSI eligibility.

Example 2.

Sometime later, Ms. Smith applies for SSI. She also asks Ms. Roberts to revise her trust because she has changed her name. The attorney can again collect a fee for the services provided on the trust due to the name change without our authorization.

A month later, we notify Ms. Roberts that the trust language needs to be revised again, because as drafted it does not meet our requirements for exception to resource counting. She discusses the issue with the claims representative (CR), amends the trust, and submits the amended trust to the agency. The services related to amending the trust and communication with the agency are performed in direct connection with Ms. Smith's pending SSI claim, and fees for those services require our authorization.

  • Explanation: If a representative assists a claimant or recipient to alter an established trust for reasons such as a name change or the death of a parent, we do not need to authorize the fee because the legal service is not performed in connection with a pending claim or future claim and the parties have not submitted a fee agreement or a fee petition. However, the second transaction affects whether the assets in Ms. Smith’s trust are countable resources for SSI purposes, and therefore her potential eligibility for benefits, so we must authorize the fee the representative may seek for the preparation of documents or conducting business with us.

Example 3.

Clara Waters, a grandmother, establishes a trust for Rainbow, her granddaughter through Mr. Johnson, an attorney. Generally, we would not need to authorize Mr. Johnson’s fee, so long as the trust was not established for the purpose of affecting his clients’ eligibility for benefits.

  • Explanation: An attorney may establish a trust for a minor child for many reasons. If a trust is prepared in order to affect someone’s eligibility for benefits, we must authorize the representative’s fee for preparation of the trust. However, if a trust is prepared for a reason unrelated to a claim for benefits, we may not need to authorize the fee charged for preparing the trust. Depending on the information in a claims file, we may need to obtain an explanation from the representative or claimant if there is a question about the purpose of the trust, or about why it was established. If a trust is prepared not in connection with a claim, but the parents later apply for benefits and enlist the assistance of an appointed representative (the same attorney or someone else) to prepare or provide information to us, we would authorize fees for only those services provided in connection with a matter before us.

Example 4.

Frank Harris suffers from a terminal illness and files for title II disability. While Mr. Harris’ claim is pending, he hires attorney Lisa Park to prepare adoption papers to adopt his 14-year old stepdaughter Lillian, in order to establish her right to inherit from his estate. Ms. Park drafts the documents and charges Mr. Harris a fee for this service. We do not need to authorize the fee Ms. Park is charging.

  • Explanation: Although Mr. Harris has a pending claim before us, the attorney assisted him with preparing adoption papers, a specialized legal service that is not in connection with the matter pending before us (Mr. Harris’ disability claim). Therefore, we do not need to authorize the attorney’s fee.

Example 5.

Later, Mr. Harris also appoints Joe O'Connor, a non-attorney representative, to help him appeal the determination on his title II claim. Mr. O’Connor meets with Mr. Harris and they file an online appeal. Mr. O’Connor obtains and submits medical evidence related to his client’s disability and advises Mr. Harris that Lillian is entitled to child benefits. We consider Mr. O'Connor the appointed representative for Lillian, the auxiliary beneficiary, and we must authorize any fee Mr. O'Connor intends to charge and collect from either Lillian or her father for services provided to pursue eligibility for benefits.

  • Explanation: Mr. O'Connor's assistance was provided in connection with the title II claim.

Example 6.

Pete Brown discovers, after we denied his application for title II disability benefits, that two years of self-employment income is not posted to his earnings record. He hires tax attorney Ana Garcia to help him prepare and file self-employment tax returns and represent him before the Internal Revenue Service. We do not need to authorize a fee for Ms. Garcia's services.

  • Explanation: Ms. Garcia’s services are related to filing taxes with and appearing before the IRS and are not rendered in connection with the title II disability claim.

Example 7.

Dissatisfied with the denial of his title II claim, Mr. Brown requests a hearing before an administrative law judge (ALJ) and appoints attorney Lee Johnson to represent him. Mr. Johnson promptly files a HA-501 (Request for a Hearing) along with medical evidence that he considers material to the disability claim. The hearing is scheduled, and he appears before the ALJ to present Mr. Brown’s case. We must authorize any fee Mr. Johnson seeks to charge or collect for his services.

  • Explanation: Mr. Johnson has provided services in direct connection with a title II claim.

E. Handling requests to review fees for services not subject to our authorization

If a claimant or representative requests us to review and approve fees for services that we believe are not subject to our fee authorization rules, the technician will:

  • Review the claims file and ask the claimant or representative why he or she believes that the services were provided in connection with the claim.

- If the technician agrees that the services were provided in connection with the claim before us, he or she will process the fee request according to normal policy and procedure.

- If the technician does not agree that the services were provided in connection with the claim before us, he or she will advise the parties in writing that based on the above policy, we do not need to review and authorize the fees and therefore the representative does not need our authorization to collect the fee.

- The technician may seek, at his or her discretion, the assistance of a policy expert on the issue (e.g., the agency subject matter expert on trusts, a regional attorney who handles worker’s compensation issues, or other available agency staff with the specific expertise).

  • Document the communication in the "comments" section in the Registration, Appointment, and Services for Representatives (RASR) application, or on a Report of Contact (SSA-5002

IMPORTANT: In some instances, a representative may provide both services that are provided in connection with the claim before us for which we must authorize a fee, and other services that are not provided in connection with a claim before us for which we do not need to authorize a fee. In these instances, we will only authorize fees for the services performed in connection with the claim before us. Any fees for other services do not need our authorization.


GN 03920 TN 26 - Administering Representatives Fees Provisions - 6/25/2019