Effective Dates: 12/06/2024 - Present

Identification Number:
GN 03920 TN 52
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Administering Representatives Fees Provisions
Type:POMS Full 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. 52, 12/06/2024

Audience

PSC: BA, CA, CS, DE, DEC, DS, ES, ICDS, IES, 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

On August 21, 2024, we published final rule Changes to the Administrative Rules for Claimants Representation and Provisions for Direct Payment to Entities, which introduces significant changes to our sub-regulatory guidance following the First Circuit Court’s decision in Marasco and Nesslebush, LLP v. Collins and Social Security. These updates are part of broader efforts to modernize our processes and enhance clarity.

In preparation for the second phase of implementing this final rule we updated the section addressing waiver requirements, types of waivers, and rescission of waivers. These policy updates provide clear instructions on identifying the proper party for submitting a fee waiver, outline the requirements for fee waiver submission, specify the different types of waivers and include other sub-regulatory policy changes. This also includes information related to waivers and representative’s fee assignment of direct payment of authorized fees to an entity. This section is updated in preparation for the implementation of phase 2 effective December 9, 2024.

Summary of Changes

GN 03920.020 Representative's Wavier of a Fee or Direct Payment of Fee

We changed the title of this section to align with the revision to the content discussing waiver requirements, type of waivers, processing of waivers and the rescinding of waivers.

Subsection A , we revised the content to discuss the general presumption of the fee payment when a claimant is represented.

Subsection B , we discuss the requirements for submission of a waiver and the mechanism for which a waiver can be submitted.

Subsection C, we discuss the different types of waivers a representation can submit and the impact on their authorized fee.

Subsection D , we explain how and when a representative can submit a rescission of a fee waiver.

Subsection E , we revised the title and content to provide clarity of the policy under the conditions which a representative can waive their fee or assign the right of an entity to receive direct payment.

Subsection F, we provide instructions on processing the different types of fee waivers submitted.

Subsection G , we provide instructions for technicians when a representative submits an unclear waiver

GN 03920.020 Representative's Waiver of a Fee or Direct Payment of a Fee

CITATIONS:

20 CFR 404.1703 and 416.1503

A. General presumption of fee payment

Unless a representative explicitly waives their right to a fee, we presume that a representative will charge a fee for their representational services. Similarly, if a representative is eligible for direct payment and does not explicitly waive direct payment (or the fee in its entirety), we presume they will request direct payment of any authorized fees. For information about court fee waivers, see GN 03920.060.

B. Waiver requirements

A representative who wishes to waive the right to charge and collect an authorized fee, or to waive direct payment of a fee, must notify us in writing. Our preferred method for representatives to submit a fee waiver is by selecting the appropriate waiver box on Form SSA-1696 (Claimant's Appointment of a Representative) and signing the form. We also accept written statements that satisfy the requirements listed in this section.

 

Whether submitted on a Form SSA-1696 or an equivalent writing, a fee waiver must contain the following information:

  1. 1. 

    The representative’s identifying information (e.g., name, and, Rep ID);

  2. 2. 

    The claimant's or auxiliary beneficiary’s identifying information (e.g., name, SSN, claim number);

  3. 3. 

    The claimant's and the representative’s signature and date (see Note 1 in this subsection for an exception to this requirement); and

  4. 4. 

    A statement (or the appropriate box checked on the Form SSA-1696), that clearly and unequivocally states that the representative:

  • •

    Waives the right to a fee;

  • •

    Will request a fee, but not direct payment; or

  • •

    Waives the right to receive a fee from the claimant, any auxiliary beneficiaries, or any other individual, but will collect a fee from a third-party entity.

NOTE 1: We will accept a full fee waiver signed only by the representative if it is submitted on an alternative written statement, without requiring the claimant's signature, if it meets all other criteria listed in this section.

A representative submitting an updated Form SSA-1696 solely to notify us that they are waiving a fee does not need to complete the entire form, but it must include the information listed above, including the claimant’s signature.

Technicians will only act on a representative's request to waive their fee (or direct payment of the fee) if we receive the waiver before we make the first direct fee payment to the representative or entity (when the representative has assigned direct payment of the fee to an entity).

A representatives can submit a written waiver using several methods including mail, analog fax, or electronic fax. Alternatively, they can upload the form to either the Appointed Representative Service (ARS) or the Electronic Records Express (ERE) portal. Both ARS and ERE portals allow representatives to upload the paper documents to the claimants’ file. Finally, the representative may also submit a written waiver statement in-person with an SSA employee at the field office or hearing office.

Technicians must carefully review written statements of waivers submitted in conjunction with or in place of the SSA-1696 to ensure that each written statement contains the information listed in this subsection.

NOTE 2: Technicians should not presume that a written waiver is also a termination of appointment unless the statement unequivocally indicates a termination of appointment.

 

For more information of termination of appointment, see GN 03910.060.

C. Types of waivers

We recognize three types of fee waivers, each of which impacts the fee authorization process differently. Therefore, technicians must carefully examine the wording of any waiver they receive to ensure that the waiver is properly processed.

If a written statement does not meet the requirements we list in GN 03920.020B, technicians must follow the instructions in GN 03920.020G.

1. Waiver of the right to a fee

A representative may elect to not charge or collect a fee from any source (i.e., the claimant or a third party) for services they have provided, or will provide, on behalf of the claimant before us.

NOTE: If a representative waives the right to charge and collect a fee, but later either attempts to charge or actually collects a fee from the claimant for services provided without our authorization, technicians must follow instructions in GN 03970.017 through GN 03970.025.

2. Waiver of direct payment of the authorized fee from the past-due benefits of the claimant and any affected auxiliary beneficiary or eligible spouse

A representative may seek to charge and collect a fee for representational services provided in a case but waive the right to direct payment of any fee we authorize. The representative's written waiver of the right to direct payment constitutes a waiver of direct payment of all fees for service before us, the Federal court, or both. In concurrent Title II and Title XVI claims, the representative's written waiver applies to both Title II and Title XVI past-due benefits.

In such instance, unless other reasons prevent authorization of a fee, we will continue to authorize a fee for services rendered, but we will not directly pay any authorized fee awarded by us or the court to the representative who waived direct payment. The representative must collect their fee directly from the claimant. For more information on how fees are authorized, see GN 03940.001 (fee agreements) and GN 03930.001 (fee petitions).

NOTE:Unless the representative validly assigns direct payment to an entity before their death, the executor or legal representative of a deceased representative’s estate can waive the fee or direct payment of the fee. For more information about identifying and processing fees to the estate of a deceased representative, see GN 03913.010.

3. Waiver of the right to receive a fee from the claimant and any affected auxiliary beneficiary, or eligible spouse, but not from a third-party entity

A representative may elect to collect a fee from a third-party entity rather than from the claimant (and any affected auxiliary beneficiary’s) past-due benefits.

If a representative wishes to collect a fee from a third-party entity, they must waive their right to charge and collect a fee under our fee authorization process. This will relieve the claimant, eligible spouse, and any auxiliary beneficiaries of any obligation to pay for the representative’s services in their case, and we will not authorize a fee to the representative.

D. Rescinding a fee waiver

A representative who has waived their fee or direct payment of their fee may rescind the waiver and change the fee arrangement before the date we notify the claimant of our first favorable determination or decision. To do so, the representative must submit an updated Form SSA-1696 with a different fee arrangement selected or submit an equivalent written statement unequivocally stating the intent to charge and collect a fee in the case. The representative and the claimant must both sign the Form SSA-1696 or equivalent written statement.

E. Waivers and representatives' fee assignments of direct payment to entities

A representative who has waived their fee or direct payment of their fee cannot assign direct payment of their fee to an entity. The representative must obtain the claimant’s consent and rescind the fee waiver before making an assignment to the entity. For more information on waiver rescissions, see GN 03920.020D.

A representative who has already assigned direct payment of their fee to an entity cannot waive their fee or direct payment of it. The representative must rescind the assignment before we will accept their waiver of the fee or direct payment of the fee. The representative may rescind an assignment and waive their fee or direct payment of their fee on the same updated Form SSA-1696.

IMPORTANT: If a representative submits a fee waiver at the same time they rescind an assignment, technicians must first process the rescission of assignment before processing the waiver.

For information on the assignment of direct payment of authorized fees to an entity, see GN 03920.021.

F. Processing fee waivers

1. Written waiver submitted by a representative eligible for direct payment

Whenever a fee waiver is submitted by a representative who is eligible for direct payment, technicians must:

  • •

    Add the waiver statement to the claims file (electronic or paper) ; and

  • •

    Review the fee waiver and ensure that it satisfies the waiver requirements as listed in GN 03920.020B.

    Technicians will process the waiver following the chart in this subsection:

If the waiver…

Then technicians must…

Satisfies the requirements in GN 03920.020B, and was received before past-due benefits have been withheld.

Follow the instructions in GN 03920.020F.1.a.

Satisfies the requirements in GN 03920.020B and was received after we have withheld past-due benefits.

Follow the instructions in GN 03920.020F.1.b.

Does not satisfy the requirements in GN 03920.020B, or the waiver statement is unclear.

Follow the instructions in GN 03920.020G.

a. Waiver received before past-due benefits have been withheld

When a representative who is eligible for direct payment submits a fee waiver, and we receive the waiver before past-due benefits have been withheld in a claim, technicians:

  • •

    Process or update the fee arrangement information in the Registration, Appointments and Services for Representatives (RASR) application to reflect the waiver; and

  • •

    Include a report of contact (ROC) in RASR documenting the date the waiver was received.

For more information on documenting the fee arrangement, see Processing Form SSA-1696 (Claimant's Appointment of Representative) and Linking Claims for Direct Payment in RASR.

IMPORTANT: If a representative submits a fee waiver when withdrawing from representation, technicians must first update the fee arrangement information in RASR before processing the withdrawal.

NOTE: Technicians can view the RASR Appointment User Guide for information on viewing and updating appointment details.

b. Waiver received while we are withholding past-due benefits

If a representative who is eligible for direct payment submits a written waiver, and the waiver is received after withholding past-due benefits, but before releasing them, technicians will:

  • •

    Follow the instructions in GN 03920.020F.1. if not done already;

  • •

    Process or update the fee arrangement information in RASR to reflect the waiver;

  • •

    Resolve any remaining fee issues related to the fee withholding;

  • •

    Include an ROC in RASR documenting the date the waiver was received;

  • •

    If the claim is a Title II or Title XVI claim, release past-due benefits to the claimant (unless there remain other reasons to continue to withhold them, such as unresolved fee matters related to other representatives appointed to the claim or continued Federal court involvement); and

  • •

    If the case involves concurrent Title II and Title XVI claims, the technicians will:

    • –

      Inform the office with jurisdiction of the payment to stop withholding past-due benefits, (unless there are other reasons to continue to withhold them – e.g., other eligible representatives or Federal court involvement); and

    • –

      Notify the other components, such as the processing center(PC) or field office (FO), as appropriate, to take any necessary action (e.g., processing a windfall offset).

2. Waiver submitted by a representative ineligible for direct payment

When a representative ineligible for direct payment submits a waiver, technicians must:

  • •

    Add the waiver statement to the claims file (electronic or paper);

  • •

    Review the fee waiver and ensure that it satisfies the waiver requirements in GN 03920.020B;

  • •

    Process or update the fee arrangement information in RASR to reflect the waiver; and

  • •

    Include a ROC in RASR documenting the date the waiver was received.

3. Waiver of the right to receive a fee from the claimant, any auxiliary beneficiaries, or any other individual, but will collect a fee from a third-party entity

When a representative submits a fee waiver indicating that the representative intends to collect a fee from a third-party entity, but not from the claimant, any auxiliary beneficiaries, or any other individual, technicians will follow the instructions in GN 03920.020F.1. but the notice sent to the claimant and representative must include the following language:

“Your representative has informed us that a third-party entity is paying your representative's fee. Under our rules, we do not need to authorize your representative's fee when a third-party entity, such as a business, government agency or other organization is paying your representative's fee and neither you nor your auxiliary beneficiaries, if any, are responsible for paying any fees and expenses. If you or any other individual is paying any part of your representative's fee, we must first authorize that fee before your representative charges or collects it.”

G. Waiver status is unclear

If a representative submitted a Form SSA-1696 or other writing that includes a possible waiver statement that does not meet the requirements listed in GN 03920.020B, technicians will contact the representative by phone to clarify the representative’s intent. If the representative is eligible for direct payment, technicians will withhold 25 percent of past-due benefits temporarily while developing for this information.

1. The technician successfully contacts the representative

If the technician successfully contacts the representative and the representative indicates a desire to waive fees, the technician must:

  • •

    Inform the representative that if they wish to submit a fee waiver, they must submit a signed writing that meets the requirements in GN 03920.020B;

  • •

    Inform the representative that we will resume processing the claim in 15 days, and that if we do not receive a valid waiver statement by that time, we will presume that the representative intends to charge and collect a fee.

  • •

    Document the conversation by completing a ROC in RASR and on a Form SSA-5002;

  • •

    Add the Form SSA-5002 to the claims file (paper or electronic);

  • •

    Diary the case for 15 days to allow the representative to submit a signed written waiver statement; and

    • –

      If the representative later submits a written fee waiver, technicians will process it using the instructions in GN 03920.020F.1.(if the representative is eligible for direct payment), or GN 03920.020F.2. (if the representative is not eligible for direct payment).

    • –

      If the diary expires and we have not received a written waiver statement, the technician will complete a ROC in RASR and upload a ROC into the electronic file documenting that we have not yet received a valid waiver statement. The technician will continue processing the claim with the understanding that the representative intends to charge and collect a fee and, if eligible for direct payment, also wishes to be directly paid.

Technicians may use the following sample language:

On [date of initial contact] we informed [representative’s name] that we would grant 15 days to submit a written fee waiver that satisfies the requirements in GN 03920.020B. More than 15 days have passed since that conversation, and we have not received a policy-compliant waiver. We are resuming processing the claim and, in accordance with GN 03920.020A, we will presume that the representative intends to charge and collect a fee.

2. The technician does not succeed in contacting the representative

If the initial attempt to contact the representative is unsuccessful, the technician will:

  • •

    Complete a ROC in RASR and a Form SSA-5002 documenting that they made an attempt to contact the representative; and

  • •

    Add the Form SSA-5002 to the claims file (paper or electronic).

The technician will make one additional phone contact attempt at a different time of day on the next business day to determine whether the representative intends to waive the fee or direct payment of the fee. If the second contact is successful, follow the instructions in GN 03920.020G.1.

If all contact attempts fail and the technician cannot determine the waiver status of a representative who is eligible for direct payment, the technician will:

  • •

    Complete a ROC in RASR and a SSA-5002 documenting that we made two attempts to contact the representative;

  • •

    Add the Form SSA-5002 to the claims file (paper or electronic);

  • •

    Using the relevant document generation software employed by the technician’s component, create a blank notice directed to the representative containing the following language:

Our records indicate that you [represent/represented] [Claimant’s first and last name] in a claim for Social Security disability benefits. However, we need more information about the fee, if any, you intend to charge and collect for your representational services.

We presume that a representative will charge and collect a fee for their representational services and that a representative who is eligible for direct payment intends to receive direct payment of the fee, if any, we authorize. If you do not intend to charge a fee or to receive direct payment of a fee, you must inform us in a signed writing that you:

  • •

    Waive the right to a fee;

  • •

    Will request a fee, but not direct payment; or

  • •

    Waive the right to receive a fee from the claimant, any auxiliary beneficiaries, or any other individual, but will collect a fee from a third-party entity.

For more information on our waiver requirements, see our waiver policy contained in GN 03920.020B.

If we do not receive a signed, written waiver within 15 days of the date of this notice, we will continue processing this claim and will presume that you intend to charge and collect a fee for your representational services.

  • •

    Diary the case for 20 days (15 days for notice plus 5 days for mailing)

  • •

    If the representative does not submit a signed writing by the time the diary has expired, the technician will produce a ROC in RASR and a Form SSA-5002 in the electronic or paper file documenting that the representative has not responded to our contact attempts and that we will continue processing the claim assuming that the representative intends to charge a fee.

  • •

    In RASR, if the representative is eligible for direct payment, select “I am charging a fee and requesting direct payment of the fee from withheld past-due benefits,” or, if the representative is not eligible for direct payment, select: “I am charging a fee but waiving direct payment of the fee from withheld past-due benefits.”

  • •

    Continue processing the claim. If past due benefits were withheld, continue to withhold those past due benefits.


GN 03920 TN 52 - Administering Representatives Fees Provisions - 12/06/2024