Identification Number:
EM-20049
Intended Audience:All RCs/ARCs/ADs/FOs/TSCs/PSCs/OCO/OCO-CSTs/OHO/OARO
Originating Office:DCO OPSOS
Title:Attorney and Authorized Representative Reminders
Type:EM - Emergency Messages
Program:Title II (RSI); Title XVI (SSI); Disability
Link To Reference:See References at the end of this EM.
 
Retention Date: April 18, 2021

A. Purpose

This Emergency Message (EM) serves as a reminder to technicians that they must continue to follow existing policies and procedures when there is attorney or authorized representative involvement.

B. Background
    This is a reminder for technicians to follow current attorney and authorized representative policies and procedures for the following:
      • When SSA fails to pay an authorized fee to an eligible representative who qualified for direct fee payment because we did not withhold past-due benefits or inadvertently released withheld past-due benefits to the claimant;
      • When Technicians must make contact and there is an appointed representative on record;
      • When an attorney or authorized representative requests a status; and
      • When SSA receives a 1696.
    C. Policy Reminders and Guidance

    1. SSA Failed to Withhold a Fee to Pay the Attorney or Authorized representative

    For situations where we failed to pay an authorized fee to an eligible representative because we did not withhold past-due benefits or inadvertently released withheld past-due benefits to the claimant, technicians must notify both the claimant and the representative of the error.
      a. Failure to Withhold in a Fee Agreement Case
        If we sent notice of the fee agreement approval and fee amount, but we failed to withhold past-due benefits, send the failure-to-withhold language per
        GN 03920.055B.
        If the decision maker approved the fee agreement, but we did not compute the fee amount, nor did we withhold past-due benefits, send a manual notice that includes the:
    · fee agreement determination;
    · amount of the fee;
    · administrative review rights; and
    · failure to withhold language per GN 03920.055B
        If the decision maker has not made a determination on the fee agreement, and we failed to withhold past-due benefits:
    · refer claims decided below the hearing level to the appropriate PC or FO decision maker for a determination; or
    · contact the Office of Hearings Operations (OHO) or the Attorney Fee Branch (AFB) for a determination, per GN03940.025.
        b. Failure to Withhold in a Fee Petition or Court Case

          If we have not yet determined the fee under the fee petition process, or if we have not received a fee order from a court, do not take any action until we have determined the fee or have received a fee order from a court. If we have not set a diary, set one following the instructions in GN 03930.045. For additional information regarding a court ordered fee, see GN 03920.060.
        • Concurrent Case Processing of the Fees

          If the case is concurrent, the PC must first determine the Title II portion of the fee. The PC informs the FO of the Title II portion of the fee, using the E4345 application. The FO then revises the previous windfall computation that did not include the Title II fee, and if necessary, computes the Title XVI portion of the fee. The office with jurisdiction of the fee payment notifies both the claimant and the representative of the failure to withhold (i.e., the PC for Title II and the FO for Title XVI).


        c. Notifying the Claimant and Representative and assessing the Overpayment for the Fee

          Once the fee has been determined, review the fee authorization notice (i.e., SSA-1560A) to determine if it includes failure-to-withhold language. If it includes failure-to-withhold language, no additional notice is necessary regarding the fee. If it does not include failure-to-withhold language, send the failure-to-withhold language in GN 03920.055B.

          If the representative notifies SSA that he or she has been unable to collect the fee directly from the claimant after SSA issues the failure-to-withhold notices, then the jurisdictional office of the fee payment will take the following actions:

            • Pay the representative the maximum amount we should have paid from the claimant’s Title II past-due benefits, Title XVI past-due benefits, or both per GN 03920.017D Procedure-Amount of Direct Payment; and
            • Initiate overpayment recovery procedures from the claimant, by refund or adjustment, of the amount paid to the representative, plus the withheld assessment amount.

                o The assessment, as explained in GN 03920.019, applies to Administrative and court fees separately.

            • Overpayments resulting from failure to withhold past-due benefits to pay the representative’s fee or where we inadvertently released the past-due benefits before paying the representative’s fee are not eligible for the streamlined waiver.
      NOTE: If the claimant has filed for bankruptcy, see GN 02215.185A.3.

      2. Contacting a Represented Claimant

      Generally, when a claimant has an appointed representative, we will communicate directly with the representative and have limited contact with the claimant. Technicians must verify the authenticity of the SSA-1696. Please refer to EM-20022 for instructions and procedures on authenticating the SSA-1696 prior to contacting the representative on behalf of the claimant.

          a. When We Can contact the Claimant Directly
      There are certain situation where we may need to contact the claimant directly even when a claimant has a representative on file.

      We may contact the claimant directly if:
            • the representative asks to deal directly with the claimant. See GN 03910.050C;
            • the claimant, who is alleging blindness or a visual impairment, elects to receive notices by first class mail with a follow-up telephone call from SSA to read the notices to him or her. See NL 01001.000 for the special notice option (SNO);
            • the contact relates to a possible violation of the Rules of Conduct and Standards of Responsibility for Representatives. See GN 03970.010;
            • there is an indication that a representative's appointment may have ended, but the information in our records is unclear or insufficient;
            • there is ambiguity about the scope of representation; or
            • there are multiple representatives appointed and it is not clear who is currently appointed or who is the principal representative.

                EXAMPLE: The claimant appointed two representatives at different times and the representatives do not appear to be working together. In this instance, we will contact the claimant directly to clarify the situation.
      NOTE: Technicians should ensure the SSA-1696 and fee agreement (if applicable) are faxed timely into the certified electronic folder (CEF) and representative data is input timely into RASR when an appointed representative is involved. Technicians should contact the appointed representative after processing a written notice of appointment in RASR or outside of RASR if there are outstanding issues or inquiries about a pending claim, matter, or issue (including post-entitlement matters), as explained in GN 03910.050.

      3. Providing Claim or Appeal Status on a Claim or Appeal Pending at the Hearing/OAO level GN 03103.190

          The field office (FO) advises the inquirer (claimant or representative) of hearings scheduled by the administrative law judge (ALJ) in the order in which we received the requests. Tell the inquirer the average time that it takes to get a hearing in that area, and that he or she will hear from the ALJ before the expiration of that time.

          If more than the average length of time elapsed since receipt of the request, notify the ALJ of the inquiry, with a report of contact (ROC). Also, notify the inquirer of this action. If circumstances change and there is now a hardship, notify the ALJ (if there is a hardship, see GN 03103.110C.1).

            • Reminder for inquiries concerning hearings, you may obtain information from:
                § Case Processing and Management System (CPMS) query.
              • For inquiries concerning an Appeals Council Request for Review, you may obtain information from:
                  § Appeals Review Processing System (ARPS) and the FINAL ACTION field displays the decision.
        Technicians should also check other workload controls and repositories such as Work Track, MSSICs, EDCS/EVIEW (for medical initial decisions and appeals) and WAC to ensure that we provide the most up to date information.

        NOTE: When identifying an appointed representative by telephone, verify the claimant has appointed the representative by obtaining a query or review the Form SSA-1696, or a written equivalent. The caller must provide their name and the claimant’s identifying information (see GN 03316.125)

        Closing paragraph:
        Direct all program-related and technical questions to your Regional Office (RO) support staff or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns or problems to their Central Office contacts.


        References:
        EM-20022 Temporary Instructions for the documentation of the Appointment of a Representative during the Coronavirus Disease 2019 (COVID-19) Pandemic
        GN 03920.055 Failure to Withhold Past-due Benefits for Direct Payment to a Representative
        GN 03930.045 Diaries for Receipt of Fee Petitions and Fee Authorizations
        GN 03316.125 Disclosure to Attorneys and Representatives
        GN 03920.060 Attorneys’ Fees for Representation in Proceedings Before a Court
        GN 03910.001B Terms and Definitions as Applied to this Subchapter
        GN 03910.025 Authority of Appointed Representatives
        GN 02215.185 Bankruptcy Proceedings – Overview
        GN 03920.019 Assessment on Representatives Who Receive Direct Payment
        GN 03103.110 SSA-636-U3 (Transmittal Notice — Hearing Case)
        GN 03920.017 Payment of Representative's Fee
        NL 00703.812 Failure to Withhold Past-due Benefits for Direct Payment to a Representative (Administrative Error)


        EM-20049 - Attorney and Authorized Representative Reminders - 10/20/2020