GN 03920.019: Assessment on Representatives Who Receive Direct Payment

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~~Effective Dates: 11/09/2017 - Present~~
Effective Dates: 11/13/2017 - Present
TN 13 (02-05)
GN 03920.019 Assessment on Representatives Who Receive Direct Payment
A. Background and Current Assessment Cap
To cover administrative costs, the Ticket to Work and Work Incentives Improvement Act of 1999 required that we to charge an assessment, also called a “user fee” or “service charge,” to an attorney who receives his or her fee via direct payment from us. This applied to a title II claim and the title II fee payable on concurrent titles II and XVI claims. This did not apply to title XVI because direct payment of an attorney's fee was a service not yet available for title XVI claims. Direct payments resulting from fees authorized under the fee petition and fee agreement processes became subject to the assessment when we favorably decided the case after January 31, 2000. As of February 1, 2000, legislation set the user fee rate at 6.3 percent. The user fee rate remained at 6.3 percent through August, 31, 2004.
To cover administrative costs, the Ticket to Work and Work Incentives Improvement Act of 1999 required that we charge an assessment, also called a “user fee” or “service charge,” to an attorney who receives his or her fee via direct payment from us. This applied to a title II claim and the title II fee payable on concurrent titles II and XVI claims. This did not apply to title XVI because direct payment of an attorney's fee was a service not yet available for title XVI claims. Direct payments resulting from fees authorized under the fee petition and fee agreement processes became subject to the assessment when we favorably decided the case after January 31, 2000. As of February 1, 2000, legislation set the user fee rate at 6.3 percent. The user fee rate remained at 6.3 percent through August, 31, 2004.
On March 2, 2004, the President signed into law the Social Security Protection Act of 2004 (SSPA) (Public Law 108-203). Section 301 of the SSPA amended section 206(d)(2)(A) of the Social Security Act by:
* capping the assessment at a flat-rate dollar amount or 6.3% of the fee payment, whichever is lower, effective September 1, 2004; and
* adjusting the flat-rate cap based on annual cost-of-living adjustments rounded down to the next lower $1 beginning December 1, 2006.
The current flat-rate assessment amount effective December 1, 2017 is $93.00.
The flat-rate assessment amount was $91.00 effective December 1, 2014.
The flat-rate assessment amount was $89.00 effective December 1, 2013.
The flat-rate assessment amount was $88.00 effective December 1, 2012.
The flat-rate assessment amount was $86.00 effective December 1, 2011.
The flat-rate assessment amount was $83.00 effective December 1, 2008.
The flat-rate assessment amount was $79.00 effective December 1, 2007.
The flat-rate assessment amount was $77.00 effective December 1, 2006.
The flat-rate assessment amount was $75.00 effective September 1, 2004.
The SSPA extended the title II fee payment provisions, including the assessment charge, to title XVI and authorized direct payment to eligible non-attorney representatives effective February 28, 2005. See GN 03920.017, Payment of the Representative's Fee.
B. Definitions
In this section, the following definitions apply:
1. SPS Online or Online
When we refer to SPS Online or Online, we are referring to the online input screens used to establish or update Single Payment System payments that could not be automated.
2. Fee Payment Date
By the fee payment date (i.e., the date SSA “makes payment” or “pays all or part of the authorized fee”), we mean the date that the Single Payment System (SPS) or the Modernized Supplemental Security Income Claims System (MSSICS) sets the payment in PAID status.
* When fee payment is initiated through the Modernized Claims System (MCS), the Manual Adjustment Credit and Award Processes (MADCAP) or MSSICS, the payment date (i.e., the date on which the payment is set in PAID status) is the day after the input action is processed.
* When fee payment is issued Online (manually) and set to PAID, the payment date is the day that payment is set in PAID status.
Because SSA personnel must input information instructing the system to make the direct payment, the payment date is not the date of the notice generated in connection with the fee payment. Nor is it the date the Department of the Treasury issues the actual check.
3. Decision
By decision, we mean an initial or reconsidered determination or a decision made by an Administrative Law Judge or the Appeals Council.
C. Policy - General
1. Overview
Sections 206(d) and 1631(d)(2)(A) of the Social Security Act require SSA to charge an assessment or “user fee,” to recover administrative costs for determining and certifying or paying fees directly to representatives. Prior to September 1, 2004, the assessment was 6.3 percent (%) of the amount SSA certified for direct payment to the attorney. For any fee payment SSA makes to a representative eligible to receive direct fee payment on or after September 1, 2004, the assessment is 6.3% of the fee payment or a flat-rate dollar amount, whichever is lower. (See GN 03920.017, Payment of Representative's Fee.) In calculating the assessment, for amounts less than the flat-rate assessment cap that end with a fraction of a penny, round to the nearest penny. For the policy on rounding see GN 03920.017F.
NOTE: The flat-rate assessment cap will be adjusted based on annual cost-of-living adjustments, rounded down to the next lower $1. SSA adjusted the cap in December 2006, and will do so yearly thereafter, if the cost-of-living adjustments warrant an adjustment.
The Commissioner may collect the assessment imposed on the representative by withholding it from the amount of the fee certified for payment or paid to the representative from a claimant's past-due benefits. This provision applies to fees SSA directly pays to attorneys and non-attorneys eligible for direct payment from title II and title XVI past-due benefits under both the fee agreement and fee petition processes, and to court-awarded fees that SSA directly pays to attorneys from title II and title XVI past-due benefits. In concurrent cases, in which the representative's fee is certified from a combination of withheld title II and title XVI benefits, the assessment cap applies to the total fee SSA pays directly to the representative. (See GN 03920.017., Payment of Representative's Fee.)
EXAMPLE: The claimant filed concurrent title II and title XVI applications and received a favorable decision on both. Based on an approved fee agreement, SSA authorized the fee payable to the representative from the claimant's withheld title II past-due benefits. We then deducted the maximum assessment from that amount and directly paid the representative the remaining amount. SSA subsequently authorized and paid an additional fee to the representative based on the claimant's title XVI past-due benefits. However, because SSA had previously deducted the maximum assessment, SSA did not deduct any additional assessment from the amount payable to the representative from the title XVI withheld past-due benefits.
If the representative established a trust or escrow account and SSA is notified of the amount in the account before making direct payment, SSA subtracts the escrow amount from the fee amount and calculates the user fee based on the amount payable. (See GN 03920.025, Representative's Fee – Trust or Escrow Accounts.)
2. Title II Cases
For title II cases SSA decides favorably on or after February 1, 2000, SSA will:
* Deduct the user fee from the amount of the representative's fee payable if SSA certifies direct payment to the representative.
* Pay the representative the remainder (i.e., the payable amount minus the user fee). In a fee agreement case, SSA will make direct payment immediately when all development is complete and the fee under the approved agreement can be set. (See GN 03920.017C., Policy – Title II - Direct Payment to Representatives, and GN 03920.017D, Policy – Title XVI – Direct Payment to Representatives.)
Title II Only Example
Authorized fee
$5,000.00
- Escrow funds
$1,000.00
Balance of authorized fee payable from past-due benefits
$4,000.00
Past-due benefits available for payment of authorized fee
$4,000.00
- User fee (6.3% x $4,000 is greater than $93 therefore user fee is capped at $93)
$ 93.00
Final amount payable from past-due benefits to representative
$3,907.00
NOTE: Release excess withheld funds, if any, to the beneficiary(ies) except in 1) a concurrent case when offset has not yet occurred, 2) a case with Federal court involvement, or 3) a case with a pending request for administrative review.
* Explain the user fee to the claimant.
3. Title XVI Cases
On or after February 28, 2005, for title XVI cases on which SSA pays fees directly to a representative, SSA will:
* Deduct the user fee from the amount of the representative's fee payable if SSA directly pays the representative.
* Pay the representative the remainder (i.e., the payable amount minus the user fee). In a fee agreement case, SSA will make direct payment immediately when all development is complete and the title XVI fee under the approved agreement can be set.
Title XVI Only Example (Fee Agreement)
* Authorized fee
$2,000.00
2. - Escrow funds
$500.00
3. Balance of authorized fee
$1,500.00
4. Amount of title XVI retroactive check
$8,000.00
5. Amount of IAR
$7,000.00
6. Title XVI retroactive benefits available after deduction for IAR (line 4 – line 5)
$1,000.00
7. Benefits available for direct payment (lesser of line 3 or line 6)
$1,000.00
8. - User fee (6.3% x $1,000.00)
$ 63.00
Amount payable to representative
$ 937.00
* Explain the user fee and the representative's fee to the claimant and representative.
* Recover any outstanding prior overpayment to the claimant.
* Release excess withheld funds, if any, to the claimant and his/her eligible spouse, if the spouse's benefits were included in the past-due benefits for fee purposes, except in 1) a case with Federal court involvement and an attorney representative, or 2) a case with a pending request for administrative review. (See GN 03920.031B, Policy – Title XVI Past-Due Benefits.)
D. Policy – Controlling Date For The Assessment CAP
The assessment cap (i.e., the cap on the assessment effective September 1, 2004, or the cap in effect based on the annual cost-of-living adjustments) applies to any fee payment SSA makes to an attorney on or after September 1, 2004, and to a non-attorney eligible to receive direct fee payment after February 27, 2005.
The statute states that the cap applies only with respect to fees that are “first” required to be paid on or after September 1, 2004. A strict interpretation of the statute would require SSA to deduct a full 6.3% assessment from any subsequent fee payments made on or after September 1, 2004, on a claim on which SSA had paid a fee before that date. However, to benefit from SSA's systems capability and reduce the number of situations that require manual processing, SSA applies the assessment cap to each fee payment made on or after September 1, 2004, without considering any fees paid on that claim before September 1, 2004. (See GN 03920.019B.2. for the definition of “fee payment date.”)
If SSA makes direct payment of an authorized fee before September 1, 2004 and, on or after that date, makes an additional fee payment based on the same claim for benefits to the same or a different representative, the assessment cap applies to the payment(s) made on or after September 1, 2004 without regard to the assessment SSA collected before then. Examples of situations in which this applies include the following:
* Prior to September 1, 2004, SSA issued a partially favorable title II decision and authorized a fee of $2,000. SSA deducted $126.00 (6.3%) from the direct payment amount. On December 13, 2004, SSA made a more favorable decision on appeal and authorized an additional fee of $2,500. Because SSA made direct payment after section 301 of P.L. 108-203 became effective, SSA deducted the user fee and paid the attorney the remaining money. Had the additional fee been only $1,000, SSA would have deducted the full 6.3% ($63.00), which is less than the user fee cap.
* Prior to September 1, 2004, SSA approved a fee agreement, deducted the 6.3% assessment, and paid the primary claimant's attorney's fee (of less than $5,300) from withheld title II past-due benefits. SSA later processed the claim for the primary claimant's auxiliary beneficiaries, who were not represented independently. On October 29, 2004, SSA made an additional fee payment to the attorney based on the auxiliary beneficiaries' withheld past-due benefits. SSA applied the assessment cap (i.e., deducted the lower of 6.3% of the direct payment amount or the flat-rate dollar amount) to that later fee payment.
* Prior to September 1, 2004, one of the primary claimant's two attorneys filed a fee petition. SSA authorized the fee, deducted the 6.3% assessment, and paid the fee directly to the attorney from the claimant's title II withheld past-due benefits. The claimant's other attorney filed a fee petition at a later date. On March 15, 2005, SSA paid the fee authorized to the second attorney and applied the assessment cap.
* Prior to September 1, 2004, SSA paid a fee directly to the attorney for services provided to the primary claimant at the administrative level. The claimant appealed the partially favorable administrative decision to the Federal court. On November 1, 2004, the court issued a fully favorable decision and awarded a fee to the claimant's attorney. SSA paid the fee to the attorney and applied the assessment cap.
E. Policy – Fees Paid To Multiple Representatives After August 31, 2004
When the primary claimant is represented by more than one representative and SSA pays the fee(s) after August 31, 2004, the representatives will share in paying the assessment in proportion to the fee amount SSA pays to each representative.
1. Fee Based on an Approved Agreement
When SSA authorizes multiple representatives to share the fee based on an approved fee agreement, the fee is divided by the number of representatives who represented the claimant and signed the fee agreement. The representatives who request and are eligible for direct fee payment share the assessment equally. Representatives who are ineligible for direct fee payment or who waive their fee are not assessed a user fee. (See the example in GN 03940.053D.3.)
2. Fees Based on Fee Petitions
When SSA authorizes fees to multiple representatives based on their fee petitions, generally the representatives request and SSA authorizes fees in different amounts. Therefore, in fee petition cases, the representatives share the assessment in proportion to the fee amount SSA pays each representative. (See the example in GN 03930.066D.2.b, which shows how SSA will prorate the assessment in fee petition cases.)
F. Policy – Fees Paid For Auxiliary Beneficiary(ies) After August 31, 2004 And In SSI Couples Cases After February 27, 2005
How SSA applies the assessment cap depends on whether the auxiliary beneficiary in a title II case or the spouse in an SSI couples case is represented independently.
1. No Title II Auxiliary Beneficiary is Represented Independently or SSI Spouse Not Represented Independently
After August 31, 2004 for title II cases and after February 27, 2005 in title XVI cases, the assessment cap applies to the total fee SSA pays to the representative(s) from past-due benefits withheld from the primary claimant and any otherwise unrepresented, affected auxiliary beneficiary or from the SSI claimant's eligible spouse. To the extent possible, SSA pays the authorized fee to the representative from the primary claimant's withheld past-due benefits and deducts the assessment from that payment.
If SSA deducts an assessment of less than the cap from the fee payable based on the primary title II or title XVI claimant's past-due benefits, SSA will deduct 6.3% of the direct payment amount or the amount of the cap remaining, whichever is lower, from any fee it pays from the auxiliary's(ies') or spouse's past-due benefits. SSA will deduct an assessment from each successive fee payment until the assessment totals the cap in effect on the date of the payment.
EXAMPLE 1: Mr. Smith's past-due benefits totaled $12,000 and his children, who were not independently represented, were entitled to $6,000 in past-due benefits. SSA withheld 25% ($4,500) for direct payment of the representative's fee, $3,000 from Mr. Smith's past-due benefits and $1,500 from the auxiliaries'. The representative filed a fee petition and, in September 2005, SSA authorized Mr. Smith's representative to charge and collect $4,000 for his services. From Mr. Smith's withheld past-due benefits, SSA deducts the full assessment and pays the representative $2,921 ($3,000 - $79). SSA pays the remaining $1,000 of the authorized fee from the benefits withheld from the auxiliaries, but collects no additional assessment.
EXAMPLE 2: On November 22, 2004, SSA approved the fee agreement between Mr. Jones and his attorney. The fee agreement calls for a fee not to exceed the lesser of 25% of past-due benefits or $5,300. Mr. Jones' title II past-due benefits totaled $3,200 and SSA withheld $800 ($3,200 divided by 25%) for direct payment to the attorney. SSA deducted the $50.40 assessment ($800 divided by 6.3%) and paid the attorney $749.60 ($800 - $50.40). SSA subsequently processed the claims for Mr. Jones' two children, who live in separate households and who were not independently represented. Each child is due $400 in past-due benefits, so SSA withheld 25% ($100) from each to pay the attorney's fee. SSA deducted the $12.60 assessment ($200 divided by 6.3%), $6.30 per child, and paid the attorney $187.40 ($200 - $12.60).
EXAMPLE 3: Mrs. Smith filed for SSI only. An Administrative Law Judge found that she is disabled and approved the fee agreement between Mrs. Smith and her representative, who is eligible for direct payment. Because of her SSI eligibility, Mr. Smith, who was not represented and who had been receiving title II and title XVI benefits for several years, receives an additional SSI retroactive payment. The couple's past-due benefits resulting from Mrs. Smith's SSI eligibility is $2,176. Because the fee agreement provided for a fee of the lesser of 25 percent of past-due benefits or $5,300, the fee in this case is $2,176 X .25 = $544. SSA deducted the assessment ($544 X 6.3% = $34.28), and paid the representative $509.72 ($544 – 34.28).
2. SSI Spouse or One or More Auxiliary Beneficiary(ies) are Represented Independently
If the primary claimant and one or more auxiliary beneficiaries or the spouse in an SSI couples case are represented independently, SSA considers this to be two or more cases. SSA will apply separate assessment caps to:
* the fee SSA pays to the primary claimant's representative(s) and to the fee SSA pays to the auxiliary beneficiary's(ies') representative(s); and
* the fee SSA pays to the representative of each member of the SSI couple.
The assessment deducted from the fee SSA pays to the primary claimant's representative(s) does not affect the assessment SSA deducts from the fee it pays to the auxiliary beneficiary's(ies') representative(s), or vice versa. The assessment deducted from the fee SSA pays to the representative of one member of the SSI couple does not affect the assessment SSA deducts from the fee it pays to the representative of the other member of the couple.
G. Policy – Initial Fee Paid After August 31, 2004 And Additional Fee Paid Based On A More Favorable Decision On The Same Or A Prior Application – Approved Fee Agreement
After August 31, 2004, SSA will apply the assessment cap in effect at the time of payment to the total fee it pays to the claimant's representative(s) under these circumstances:
* SSA makes an initial fee payment to a representative on or after September 1, 2004, based on an approved fee agreement;
* SSA later issues a more favorable decision on the same application, or a decision on a prior application that is more favorable than that issued on the subsequent application; and
* the more favorable decision results in additional past-due benefits for the claimant and an additional fee for the representative.
Therefore, if SSA initially deducts the maximum assessment from the first fee payment, SSA will not deduct an additional assessment from the fee paid as a result of the more favorable decision, if the maximum assessment has not changed. If SSA initially deducts less than the assessment maximum or if the maximum assessment increases, SSA will deduct 6.3% of the direct payment amount or the amount of the current cap remaining, whichever is lower, from the subsequent fee payment. This situation should not arise in a fee petition case because the representative petitions for a fee only after he or she has completed providing services (see GN 03930.020C.7, about when to file a fee petition).
NOTE: If different representatives are involved, follow the policy in GN 03920.019E.
H. Policy – Fees Paid After August 31, 2004 In Dual Entitlement Cases
If SSA determines that a claimant is entitled to more than one type of title II benefit (i.e., dual or simultaneous entitlement, such as disability based on the claimant's SSN and child's benefits based on the deceased's SSN) or to title II and title XVI benefits, the assessment cap applies to the fee calculated on past-due benefits accrued based on entitlement and eligibility to all benefits.
In dual title II entitlement cases, SSA will deduct the assessment to the extent possible from the first fee it pays to the representative. If the assessment from the first fee payment is less than the assessment cap, SSA will deduct 6.3% of the direct payment amount or the amount of the assessment cap remaining, whichever is lower, from the additional fee payable to the representative based on entitlement on the other SSN.
In favorable concurrent titles II and XVI cases, SSA will deduct the assessment to the extent possible from the fee it pays to the representative from the title II past-due benefits. If the assessment from the first fee payment is less than the assessment cap, SSA will deduct 6.3% of the direct payment amount or the amount of the assessment cap remaining, whichever is lower, from the additional fee payable to the representative based on the claimant's eligibility to SSI.
I. Policy – Fees Paid After August 31, 2004 For Administrative-level Services And Court-level Services
If SSA paid a fee for administrative-level services to the claimant's attorney after August 31, 2004, and deducted less than the maximum assessment, then makes an additional fee payment to the same attorney based on the Federal court's fee award, SSA will assess the attorney the lesser of:
* 6.3% of the direct payment amount based on the court's award, or
* the difference between the amount of the assessment cap in effect at the time of the fee payment based on the court's award and the amount of the assessment previously deducted.
If the representative who represented the claimant at the administrative level is different from the attorney who represented the claimant at the court level, when SSA processes the second fee payment, SSA will recalculate each representative's assessment in proportion to the total fee and refund any excess assessment to the representative who received the first fee payment.
EXAMPLE: On September 7, 2004, SSA authorized Mr. Gregory to charge and collect $5,000 for services he provided to the claimant at the administrative level, and paid him $4,925 ($5,000 fee - $75 assessment). In February 2005, a Federal court awarded Ms. Constantine a fee of $4,000 for services she provided to the claimant at the court level. The aggregate fee totaled $9,000. Mr. Gregory's portion was 55.55% ($5,000$9,000) and Ms. Constantine's portion was 44.44% ($4,000$9,000).
$75 X 55.55% = $41.67
$75 X 44.44% = $33.33
SSA pays Ms. Constantine $3,966.67 ($4,000 fee - $33.33 assessment) and refunds $33.33 to Mr. Gregory ($75 assessment he paid - $41.67 assessment after adjustment).
J. Policy – Notice Language
SSA includes an explanation of the fee assessment in the claimant's notice to explain the user fee. (See GN 03920.019K, Procedure – Notice Language.)
K. Procedure – Notice Language
1. MCS or MSSICS/SSR Processed Actions – Explanation of Representative Fee Assessment (With Cap)
MCS automatically includes ATY016, in any title II notice involving an assessment and completes the fill-ins. (Refer to ATY016 in NL 00725.005.) The SSI notice system automatically includes FEE047, FEE048 or FEE049, as appropriate, based on the chart below, and completes the fill-ins. (Refer to the online Language Development Facility, http://policynet.ba.ssa.gov/ldfsearch.nsf, for the title XVI language.)
If ATY016 does not apply (e.g., the claim involves a previous assessment or payment for more than one representative), process a title II case through MADCAP. If there is more than one representative in a title XVI claim, produce a manual fee notice through the Document Processing System (DPS).
Assessment Situation
UTI MCS
UTI SSI Notice
No Previous Assessment, SSA Paying One Representative
ATY016
FEE047
Subsequent Payment, SSA Previously Assessed Less Than the current assessment cap
(To determine the amount of the previous assessment for the fill-ins on a manual notice, obtain an SPS or PHUS query.)
FEE048
SSA Previously Assessed Maximum Assessment
(To verify that the full assessment cap was previously deducted, obtain an SPS or PHUS query.)
FEE049
2. MADCAP or SSI Manually Processed Actions – Explanation of Representative Fee Assessment (With Cap)
In MADCAP or SSI manually processed fee actions, request the appropriate assessment explanation paragraph from those listed. (Refer to NL 00720.050 for the MADCAP paragraphs and GN 03940.085K. for SSI or DPS paragraphs.)
Assessment Situation
UTI MADCAP
UTI DPS
No Previous Assessment, SSA Paying One Representative
ATY016
FEE047
No Previous Assessment, SSA Paying Two or More Representatives Simultaneously
ATY065
FEE081
Subsequent Payment, SSA Previously Assessed Less Than the current assessment cap
(To determine the amount of the previous assessment for the fill-ins, obtain an SPS or PHUS query.)
ATY066
FEE048
SSA Previously Assessed Maximum Assessment
(To verify that the full assessment cap was previously deducted, obtain an SPS or PHUS query.)
ATY071
FEE049
L. Process – Disputes
If SSA receives a telephone or written inquiry concerning the user fee in general or the amount of the user fee, the office that receives the inquiry will resolve it, if possible. The following sample language may assist in responding to inquiries on the user fee policy or the percentage applied:
Whenever Social Security certifies a fee for services for payment to a representative from a claimant's past-due benefits, section 206 and 1631(d)(2)(A) of the Social Security Act require the Commissioner of Social Security to impose an assessment on that payment. The purpose of the assessment is to recover costs of determining and certifying or paying fees to representatives from the past-due benefits of claimants. The Act further requires that the amount of the assessment shall be equal to the lesser of:
* the product obtained by multiplying the amount of the representative's fee that would be required to be so certified or paid before the application of the assessment, by the percentage rate the Commissioner determines (currently 6.3 percent) or
* the current flat-rate cap.
If the inquiry requires any other action or response, the processing center will resolve the inquiry.
M. Process – Title II
1. Overview
Effective September 1, 2004, SPS processing of the assessment differs depending on the Payment Identification Code (PIC) cluster. The key difference between the two clusters is whether SPS considers paid user fee amounts already on the SPS database when calculating the assessment.
* PICs of A, D, E, and W generally are associated with the person who is the primary claimant for purposes of representation (i.e., the person who appointed the representative or on whose behalf the representative was appointed). For these PICs, SPS does not consider paid user fee amounts already on the SPS database.
EXAMPLE: SSA is paying the fee based on a new period of disability, and a user fee amount is on the database. SPS will disregard the previous user fee payment and correctly calculate the assessment.
* PICs of B and C generally are associated with an auxiliary beneficiary for purposes of representation. For these PICs, SPS considers paid user fee amounts already on the SPS database.
Most actions are automated because of these defaults, but manual processing will be required in some cases. For example, a child (PIC C) may in fact be the primary claimant (i.e., the person who appointed the representative or on whose behalf the representative was appointed). In this situation, SPS may not process the assessment correctly on its own. Refer to GN 03920.019M.2, which identifies manual processing situations.
2. Situations Requiring Override Of the Automated Assessment
Some situations require manual intervention to override SPS's automated assessment calculation and deduction.
* To hold payment processing in MCS cases, the Development Worksheet (DW01) screen is coded with an Issue value of ATY03, Standard User Fee Does Not Apply (see SM 00834.100).
* To hold payment processing in MADCAP cases, the MACADE Attorney Payment Indicator field on the ATTY/REP/ALJ NAME AND ADDRESS (ATT) screen is coded “03,” Standard User Fee Does Not Apply (see SM 00834.200 and MSOM MCS 008.004 ).
When a previous assessment is a factor in the current fee action, an SPS or PHUS query will show the assessment deducted when SSA made the earlier fee payment.
Title II direct fee payment situations that require override of the SPS-calculated assessment include the following.
a. Before September 1, 2004, SSA Paid a Fee on PIC A, D, E, or W – After August 31, 2004, SSA Pays Additional Fee Based on Past-Due Benefits Withheld From Auxiliary Beneficiary(ies) (PIC B, C, or both) – Fee Agreement or Fee Petition Case
Without manual intervention, SPS will consider and adjust for the pre-September user fee paid amount. However, SSA's policy is that the assessment deducted from the fee payment made before September 1, 2004 does not affect the assessment SSA deducts from the subsequent fee action (see GN 03920.019D). Therefore, the PC technician must override the SPS-calculated assessment and deduct 6.3% of the fee amount payable or the flat rate, whichever is lower, from the fee payment made after August 31, 2004.
b. After August 31, 2004, SSA Paid a Fee for Auxiliary Beneficiary (PIC B or C) Who Appointed His or Her Own Representative – Direct Payment Previously Made on the Same SSN – Fee Agreement or Fee Petition Case
Without manual intervention, SPS will consider and adjust for the assessment(s) collected in connection with the previous payment on PIC A, D, E, or W and any payments on PICs B and C. However, SSA's policy is to apply a separate assessment cap to the fee SSA pays from the past-due benefits of an independently represented auxiliary beneficiary, without regard to any other assessment deductions (see GN 03920.019F.2). Therefore, the PC technician must override the SPS default assessment action and deduct 6.3% of the fee amount payable or the flat-rate, whichever is lower, from the fee payment made to that auxiliary's representative.
c. After August 31, 2004, SSA Paid a Fee on PIC A, D, E, or W and Later Makes Additional Fee Payment Resulting From a More Favorable Decision on the Same or a Prior Application – Fee Agreement Case or Court Award Following Favorable Administrative Decision
Without manual intervention, SPS will apply the assessment cap again because, when the PIC is A, D, E, or W, it does not consider and adjust for paid user fee amounts already on the SPS database. However, if SSA authorizes a representative an additional fee amount based on a more favorable decision, deduct from the current fee payment no more than the difference, if any, between the assessment cap and the assessment previously collected (see GN 03920.019G). (This policy does not apply when SSA made the first fee payment before September 1, 2004.) Therefore, the PC technician must override the SPS-calculated assessment and input the correct assessment amount before making the subsequent fee payment.
NOTE: If SSA made the first fee payment before September 1, 2004, and on or after that date SSA processes an additional fee payment resulting from a more favorable decision, SPS will correctly determine the assessment to be the lesser of 6.3% or flat-rate.
d. After August 31, 2004, SSA Paid a Fee and Later Makes Additional Fee Payment Resulting From Dual or Simultaneous Entitlement – Fee Agreement or Fee Petition Case
Without manual intervention, SPS will apply the assessment cap again. However, SSA's policy is to deduct from the additional fee payment no more than the difference, if any, between the assessment cap and the assessment previously collected (see GN 03920.019H). Therefore, the PC technician must override the SPS-calculated assessment to make sure the assessment deducted from the amount payable to the representative on both claims does not exceed the cap amount.
e. After August 31, 2004, SSA Paid a Fee and Later Pays to a Second Representative a Fee Authorized Based on a Fee Petition or by a Federal Court – Fee Petition or Court Awarded Fee Case
The need for manual intervention arises in a fee petition or court awarded fee case in which there are two or more representatives, and the assessment must be prorated because SSA either makes direct payment at the same time but in unequal amounts or makes direct payment at different times. Refer to GN 03930.066D.2.b. for a full description of the process.
f. Beginning February 28, 2005, SSA Paid a Title XVI Fee Through Direct Payment to a Representative and That Payment Is Posted to the SPS DATABASE
In these situations an exception will be created for any subsequent action to pay representative fees from Title II benefits. It will require a manual action to determine the correct representative fee amount payable and the correct assessment.
This was done because SPS does not calculate any payments made by Title XVI and will not be able to determine the correct representative and assessment fee. The Title XVI representative payments do not show up on the PHUS or the MBR
N. Process Overview – Title XVI
Effective February 28, 2005, when the claimant has one representative, the SSI system automatically deducts an assessment when SSA directly pays a fee to the representative based on an approved fee agreement. The SSR will receive prior fee payment information from the Master Beneficiary Record in concurrent title II and XVI claims, and calculate and deduct the additional assessment, if any. The fee and assessment information then is passed to the SPS.
Process the user fee and fee payment manually if:
* The claimant has multiple representatives,
* A spouse's benefits are included in the claimant's past-due benefits calculation in an approved fee agreement case, or
* The fee is based on a fee petition.

POMS Reference

GN 03920.019: Assessment on Representatives Who Receive Direct Payment