We defer development of certain non-medical factors such as WC and PDB offset until after we issue a favorable decision. Further, we frequently partially adjudicate claims based on unverified WC/PDB amounts, military service credits, date of birth evidence, or other deferred or delayed development that affects the past-due benefits amount. Therefore, special handling is required for claims involving a fee agreement and partial adjudication based on deferred development.

In claims involving a fee agreement and partial adjudication based on deferred development, we will make a determination on the fee agreement (i.e., approve or disapprove it) but generally wait to authorize a fee until the deferred development is resolved.

In claims involving WC/PDB offset, we consider the deferred development resolved for purposes of authorizing a fee when the status of the WC/PDB claim and, if applicable, any WC/PDB payment amounts, are verified according to the procedures in GN 03940.036C.

EXCEPTIONS: We will not defer authorizing a fee in the following situations:

1. 1. 

   The WC/PDB status and/or payment amounts are unverified, but the maximum WC/PDB payment amount applied as an offset could not affect the amount of past-due benefits based on the claimant's average current earnings (ACE) and primary insurance amount (PIA); or

2. 2. 

   When both of the following criteria apply:

   • •

     Based on the amount of past-due benefits resulting from a partial adjudication, we can authorize fees equal to the maximum dollar amount specified in a fee agreement; and

   • •

     The deferred or delayed development, when obtained, could not cause the amount of the fee to change.

NOTE: For the statutory maximum amount of the fee for fee agreements, see GN 03940.003B.

Take the following manual actions when the fee authorization cannot be released when the claim is effectuated:

In DOFA and Non-DOFA claims (see GN 01010.027), including Administrative Law Judge (ALJ) or Appeals Council decision claims, the PC will take the following actions when the fee authorization cannot be released when the claim is effectuated:

After the deferred development issue is resolved or, if applicable, after the 60-day diary in GN 03940.036C.2.e. has expired and there is no change in WC/PDB status, take the following actions:

1. 1. 

   Compute the amount of the past-due benefits and calculate the amount of the representative's fee;

2. 2. 

   Prepare a notice advising the claimant and any affected auxiliary beneficiary, if any, of the following:

   • •

     The past-due benefit amount for the period through the month before the month in which we effectuated the original decision favorable to the claimant;

   • •

     The past-due benefit amount payable;

   • •

     The fee amount; and

   • •

     The right to request administrative review of the amount of the fee within 15 days of receiving the notice;

3. 3. 

   Send the notice to the claimant and a copy to the representative. Also send a copy to the decision maker if requested or required; and

   NOTE 1: If there is a valid assignment of direct payment to an entity, the entity’s point of contact (POC) may need to review fee-related information to resolve fee-related issues. However, do not send a copy of the award notice or other protected information (e.g. claimant’s information) to the entity's POC unless it is the minimum amount necessary for the POC to review it to resolve fee-related issues. For information that is not relevant or necessary to resolve fee-related issues, only disclose it if the claimant has expressly consented in writing on a Form SSA-3288 or other written consent that meets the requirements of GN 03305.003.

   NOTE 2: Refer to GN 03316.110 for instructions on disclosure to auxiliary claimants and beneficiaries about a primary claimant and to GN 03316.105 for instructions on disclosure without consent to a primary claimant about an auxiliary filing on their record.

4. 4. 

   Certify direct payment to the representative who is eligible for direct payment or to the entity if there is a valid assignment, and release any remaining past-due benefits to the claimant and any auxiliary beneficiaries unless there is Federal court involvement. See GN 03920.060 for more information on attorney’s fees for representation in proceedings before a court. 

Give special handling to claims in which the PC identifies the following conditions:

• •

  Partial adjudication is involved (e.g., WC or PDB offset);

• •

  An approved fee agreement is in the file;

• •

  The past-due benefits amount used to authorize the representative's fee was based on unverified evidence such as WC or PDB offset amount; and

• •

  We determine that the WC or PDB offset amount was incorrect.

In these cases, we must adjust the amount of the authorized fee (see GN 03920.040B., first bullet). When you determine the correct amount of the WC or PDB offset or other previously unverified evidence, and recompute the amount of the past-due benefits, recalculate the amount of the representative's fee based on the revised amount of the past-due benefits.

Remember to withhold 25 percent of any additional past-due benefits towards direct payment of an authorized fee when the representative is eligible for direct payment (unless the maximum fee under the fee agreement already has been authorized). If there is Federal court involvement, withhold 25 percent of past-due benefits. 

Notify the claimant, any affected auxiliary beneficiary, and the representative of the following:

• •

  The revised past-due benefits amount for the period through the month before the month in which we effectuated the original decision favorable to the claimant;

• •

  The revised past-due benefits payable amount;

• •

  The revised fee amount; and

• •

  The right to request administrative review of the amount of the fee within 15 days of receiving the notice.

  If the decision maker requested notification of the fee authorized to request administrative review (see GN 03940.001E and GN 03940.008C), notify the decision maker by email that the updated award notice is available in the Online Retrieval System (ORS). Use the global address list in outlook to locate the decision maker’s email address.

  NOTE 1: If there is a valid assignment of direct payment to an entity, the entity’s point of contact (POC) may need to review fee-related information to resolve fee-related issues. However, do not send a copy of the award notice or other protected information (e.g. claimant’s information) to the entity's POC unless it is the minimum amount necessary for the POC to review it to resolve fee-related issues. For information that is not relevant or necessary to resolve fee-related issues, only disclose it if the claimant has expressly consented in writing on a Form SSA-3288 or other written consent that meets the requirements of GN 03305.003

See the discussion of adjustments to the past-due benefits and fee amounts in GN 03920.040B. and GN 03920.040D.