SSA - POMS: GN 03920.031 - Representative’s Fee – Title XVI Past-Due Benefits

A. Policy – Purpose

SSA uses title XVI past-due benefits that result from a claim to do the following:

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On and after February 28, 2005, calculate the 25 percent amount of the title XVI past-due benefits to withhold for direct payment of a representative’s fee, whether SSA will authorize a fee for administrative proceedings under the fee petition or fee agreement process.
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Authorize a fee under the fee agreement process for services a representative provided in proceedings before SSA in connection with the title XVI claim.
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On and after February 28, 2005, calculate the 25 percent amount of title XVI past-due benefits to withhold for direct payment of an attorney’s fee in a court case.

NOTE: As of September 27, 2008, the system automatically withholds 25% of the title XVI past-due benefits or the remaining past-due benefits if that amount is less than 25% after SSA makes any interim assistance reimbursement. This amount is withheld for direct payment of representative’s fees in a title XVI only claim or the title XVI claim in a concurrent claim situation. Please note that the title XVI past-due benefits withheld in a concurrent claim situation is prior to offset of the title XVI past-due benefits. To ensure that direct payment of an authorized fee does not exceed 25% of past-due benefits in a concurrent claim situation, offset the title XVI past-due benefit per the instructions in GN 03920.031B.2. prior to direct payment of an authorized fee.

In addition, the system automatically releases the remaining title XVI past-due benefits to the claimant after repaying IAR, withholding for representative’s fees, and collecting overpayments. This payment is subject to dedicated account and installment payment provisions – see SI 02101.010 and SI 02101.020 .

B. Policy – Title XVI Past-Due Benefits

1. Definition - Title XVI Only

In a title XVI only claim, "past-due benefits" are the total amount of Federal and Federally administered State payments accumulated to the claimant and his or her spouse (i.e., Supplemental Security Income (SSI) couple’s case) because of a decision favorable to the claimant, through the month of effectuation (GN 03920.030D defines "month of effectuation") of a favorable administrative decision, including any amounts sent to a State/subdivision under an interim assistance reimbursement (IAR) agreement, minus any benefits listed in GN 03920.031C. (See GN 03920.060B for policy on past-due benefits in court level cases.)

In a title XVI couple’s case, each member of the couple must establish whether he/she is blind, aged or disabled. In addition, the couple is considered jointly eligible and the income and resources for both members are considered in determining eligibility and payment for both. The couple’s SSI benefit is computed as one amount, but divided equally between the members of the couple for payment. Therefore, SSA includes in the claimant’s title XVI past-due benefits those payments accumulated to the claimant (first member of the couple) and his/her spouse (second member of the couple) if:

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SSA finds the second member of the couple eligible and subsequently finds the first member eligible and the first member’s eligibility results in an increase in the second member’s benefits; or
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SSA finds the second member ineligible due to an income/resource issue, and later finds the second member eligible due to the first member’s eligibility.

Refer to GN 03940.052 for guidance on calculating past-due benefits in fee agreement SSI couples cases.

2. Definition - Concurrent Titles II and XVI

The past-due benefits amount in the title XVI portion of concurrent claims is the same as the amount in title XVI only claims, except for the purposes of withholding and calculating fees for representation, SSA reduces the title XVI past-due benefits amount by the title XVI offset amount for the same period, regardless of whether the actual offset, as provided under § 1127 of the Act, reduces the title II or title XVI benefits. (See GN 02610.053 for an explanation of offset and representative's fees. See GN 03940.050B for an explanation of how to calculate the title XVI past-due benefits in concurrent fee agreement cases. GN 03920.030 defines title II past-due benefits.)

3. Partially Favorable Decisions

SSA calculates past-due benefits for withholding for direct fee payment and for authorizing a fee under the fee agreement process using the beginning and ending periods shown in the partially favorable decision. If on appeal SSA makes a more favorable or less favorable decision, SSA will adjust the past-due benefits for purposes of withholding for direct fee payment and authorizing a fee under the fee agreement process.

C. Policy - Title XVI Benefits and Payments that are not Past-Due Benefits

Title XVI past-due benefits as defined in GN 03920.031B do not include the following types of benefits because they are statutory exclusions under the Act.

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Continuing benefits - Title XVI payments a claimant elects to continue to receive while a claim is under appeal.
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Interim benefits - Title XVI payments a claimant receives when an Administrative Law Judge (ALJ) issues a favorable decision on the issue of disability, but the Commissioner has not issued the final decision within 110 days after the date of the ALJ's decision because the Appeals Council exercised its own motion review authority.
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Presumptive disability or blindness payments - Title XVI payments made for up to six months to a claimant who is presumptively eligible for disability benefits.
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Emergency advance payments – Title XVI expedited payments made to a claimant who is presumptively eligible, has a financial emergency, and has not yet been paid.

D. Policy - Effect of Overpayment on Title XVI Past-Due Benefits

1. Current Overpayment

SSA will adjust past-due benefits by the amount of any overpayment that occurred between the date of eligibility, and

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For administratively decided cases, the month before the month SSA effectuates the favorable decision or determination; or
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For court cases, the month before the month of the court’s judgment.

In a post-eligibility action, a current overpayment is an overpayment that occurs during the period encompassed by the issue for which the claimant was represented.

SSA will adjust only the past-due benefits of the claimant or the claimant’s eligible spouse, if the spouse’s eligibility resulted from the claimant’s eligibility or if the spouse’s benefit increased as a result of the claimant’s eligibility. If the spouse is currently overpaid, SSA will adjust only the spouse’s past-due benefits amount, not the claimant’s past-due benefits.

2. Prior Overpayment

SSA will not adjust title XVI past-due benefits for overpayments arising during a period of time not adjudicated by the favorable determination or decision.

Social Security

Program Operations Manual System (POMS)

GN 03920.031 Representative’s Fee – Title XVI Past-Due Benefits