TN 8 (02-05)

A. Introduction

The claims representative (CR) in the field office (FO) adjudicates title XVI claims and posteligibility (PE) actions involving representatives who may petition to obtain SSA's approval of fees for their services. The procedures below highlight the key CR responsibilities. The CR must refer to POMS and/or MSOM sections shown for complete processing instructions.

For those cases in which the representative is eligible for direct fee payment and did not waive a fee or the right to direct payment of a fee, the CR withholds 25% past-due benefits underpayment for direct payment of the representative's authorized fees.

For general policy on direct payment to representatives, see GN 03920.017 . For specific policy on direct payment to non-attorney representatives, see GN 03920.018.

B. Policy - CR Responsibilities

Although the CR does not review fee petitions or authorize fees under the fee petition process for services provided in proceedings before SSA, the CR is involved in the fee petition process in connection with title XVI claims and PE actions because he/she must do the following:

• If there are past-due benefits, as defined in GN 03920.031, Representative's Fee – Title XVI Past-Due Benefits, determine if the representative is eligible for direct fee payment.

• When SSA issues a favorable determination or decision and the representative is eligible for direct fee payment and has not waived the fee or direct payment of the fee, ensure that 25% of the claimant's past-due benefits or the remaining past-due benefits if that amount is less than 25% after SSA makes any interim assistance reimbursement are withheld for direct payment of the authorized fee. In addition, ensure that the claimant is issued an underpayment and paid ongoing benefits.

  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 .

• Provide correct notice to the claimant and the claimant's representative. In addition, if the claimant's spouse's past-due benefits are included in the past-due benefits for representative fee purposes, provide correct notice to the eligible spouse when taking actions that affect his/her benefits.

• In a title XVI only claim, if SSA is withholding the claimant's past-due benefits for possible direct fee payment, diary an administratively decided case for 60 days for receipt of the fee petition, and follow-up if the representative has not submitted the fee petition within 60 days from the date of the claimant's award notice. Diary a claim decided by a Federal court for 120 days.

  NOTE 2: In favorably decided concurrent titles II and XVI claims, the processing center (PC) sets the diary for receipt of the fee petition when SSA is withholding the claimant's past-due benefits.

• Decide whether the FO is ready to forward a title XVI file to the Hearing Office (HO) or the PC for necessary action on a fee petition.

• When the fee authorization is received from the PC or HO, if the representative is eligible for direct payment, manually release the fee payment or the balance of the fee payment, if any, in concurrent titles II and XVI claims, to the representative to the extent that the withheld title XVI benefits permit; recover any outstanding overpayment; and release any excess withheld past-due benefits to the claimant. (See SM 01901.950, Special One-Time Payment Processing for Direct Payment of Fees to Appointed Representatives.)

• In concurrent claims situations, make any necessary adjustments to the title II income as described in SI 00830.100 and SI 02006.200.

C. Procedure

1. Reviewing the Representative Information on the SSR

Ensure that the SSR reflects the identity of the claimant's representative and the representative's eligibility for direct payment. If the representative is eligible for direct payment, review the SSR to determine whether or not the representative has waived his or her right to direct payment. To determine if a representative is eligible for direct payment, take the actions in GN 03930.030C.2.

If a representative is not on the SSR, take the following actions:

• Determine if the representative eligible for direct payment per the instructions in GN 03930.030C.2.

• Initial Claims: Complete the UMEN, UATH and UFEE screens using the instructions in MSOM BUSSR 002.012 - Direct SSR Update Authorized Representative/Fee, MSOM BUSSR 002.013 - Direct SSR Authorized Representative (UATH), MSOM BUSSR 002.014 - Representative Fee Update Data (UFEE).

• Posteligibility Actions: Complete the UMEN, UATH and UFEE screens using the instructions in MSOM BUSSR 002.012 - Direct SSR Update Authorized Representative/Fee, MSOM BUSSR 002.013 - Direct SSR Authorized Representative (UATH), MSOM BUSSR 002.014 - Representative Fee Update Data (UFEE).

After ensuring that the SSR is correctly coded:

• Go to GN 03930.030C.3. if the representative is eligible for direct payment.

• Continue effectuating the determination or decision without withholding past-due benefits if the representative is not eligible for direct payment.

2. Determining Representative's Eligibility for Direct Fee Payment

These procedures apply to favorable determinations or decisions SSA effectuates on or after February 28, 2005.

1. Attorneys: To determine an attorney's eligibility to receive direct payment, follow the instructions in GN 03920.017 Payment of Representative's Fee. Return to GN 03930.030C.1.

2. Non-attorney representatives: To determine a non-attorney's eligibility to receive direct payment, follow the instructions in GN 03920.017 and GN 03920.018.

3. If the representative is a non-attorney, check the list of eligible non-attorneys at:
   Non-Attorney Representatives List to determine if the representative is listed as of the date SSA effectuates the favorable decision.

   • If the representative states that he/she is eligible for direct payment, but is not listed on that date, take the action in GN 03930.030C.2.c. and then return to GN 03930.030C.1.

   • If the representative did not state he/she is eligible for direct payment and is not listed, return to GN 03930.030C.1.

   • If the representative is listed, go to GN 03930.030C.2.b.

4. If the non-attorney representative is on the list and has not waived direct payment, verify that the claimant and the representative signed the appointment of representative or a supplemental statement of representation on or after February 28, 2005. If not, request the representative to submit a supplemental appointment document. If the claimant and representative entered into the agreement for representation after February 27, 2005, the representative is eligible for direct payment. Return to GN 03930.030C.1.

   NOTE: The claimant does not need to sign the supplemental appointment of the representative in all supplemental appointment situations. See GN 03920.017C.2.b. to determine when the claimant needs to sign the supplemental appointment.

5. If the non-attorney stated that he/she is eligible for direct payment, but is not, notify the representative that SSA can not make direct payment and send a copy to the claimant (see model language below). Then return to GN 03930.030C.1.

Model language to use in these situations follows:

You advised your client, (Beneficiary's name), and indicated on the appointment of representative that you are a non-attorney who is eligible to have authorized representatives' fees withheld and paid directly from a claimant's past-due benefits. However, [Select the conclusion that describes the status]

• you have not been found eligible toreceive direct payment of the authorized fee, or

• you did not become eligible to receive direct payment of the authorized fee until after we effectuated the favorable decision on your client's claim, or

• you failed to maintain your eligibility to receive direct payment of the authorized fee, and were no longer eligible on the date we effectuated the favorable decision on your client's claim.

The law does not permit us to make direct payment of a fee in this case. Accordingly, SSA is not withholding (claimant's name)'s past-due benefits for fee payment purposes and will not pay any authorized fee directly to you. You should look to the claimant for payment of the fee authorized in this case.

3. Adjudicating Claim and Withholding Past-Due Benefits

If SSA issued a favorable title XVI only or concurrent favorable titles II and XVI determination or decision, there are title XVI past-due benefits, and the representative who is eligible for direct payment did not waive a fee or direct payment:

• Annotate the UFEE screen to show that the Fee Situation is unresolved (see MSOM BUSSR 002.014 , Representative Fee Update Data (UFEE));

• Ensure that Direct Payment Waived is answered “N” on the UFEE screen; and

• Go to GN 03930.030C.3.a. through GN 03930.030C.3.d. as the claim warrants.

See GN 03920.031, Representative's Fee – Title XVI Past-Due Benefits, for guidance in calculating a claimant's past-due benefits for representative fee purposes.

a. No Interim Assistance Reimbursement (IAR) Involvement – No Prior Overpayment

• Input a U TAC to the SSR to withhold 100 percent (%) of past-due benefits. (See MSOM BUSSR 004.018 , Underpayment Processing (UOUP).)

• Adjudicate the claim (i.e., calculate benefits, net past-due benefits for a current overpayment, and pay ongoing benefits.)

• Establish for resolution a FEE PETITION issue on the MSSICS DW01 (or the MDW on a non-MSSICS claim) and set a follow-up date. Counting from the date of the FO action, set a 60-day follow-up in a case resolved by SSA or a 120-day diary for a case resolved in Federal court proceedings.

• Input an A-OTP to pay claimant 75% of past-due benefits or the first installment of that amount, if required. (See SM 01901.000, One-Time Payment; SI 02101.010, Past-Due Benefits Payable – Individual Alive Under Age 18 with Representative Payee – Dedicated Account Required; and SI 02101.020 Installment Payments of Large Past-Due Benefits – Individual Alive.)

NOTE: In title XVI only claims, the withheld amount is 25% of the title XVI retroactive benefits (i.e., past-due benefits) and the amount payable to the claimant is 75% of past-due benefits. In concurrent claims, 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. Therefore, in concurrent claims, 25% of the title XVI past-due benefits for fee purposes will usually be less than 25% of the total SSI retroactive payments. After determining the amount of past-due benefits for representative fee purposes, there may be more than 75% of the actual retroactive benefits available to pay to the claimant.

• Send a manual notice to the claimant and representative. Refer to GN 03930.030C.4.

• If the FEE PETITION issue follow-up date arrives before the fee petition is received, go to GN 03930.030C.6. When the fee authorization is received, go to GN 03930.032.

b. No Interim Assistance Reimbursement (IAR) Involvement – Prior Overpayment

• Delete any overpayment collect decisions in the Overpayment Decision Data (OPDD) segment of the existing SSI record. (Delete only overpayment collect decisions that relate to an overpayment from a period of time not adjudicated by the favorable determination or decision (i.e., a prior overpayment). When the overpayment collect decision is deleted, a diary will be established. The diary will serve as a reminder to re-post the overpayment collect decision.) (See MSOM BUSSR 004.007 , Add/Change/Delete Overpayment Decisions (UODC).)

• Input a U TAC to the SSR to withhold 100% of past-due benefits.

• Adjudicate the claim (i.e., calculate benefits, net past-due benefits for a current overpayment, and pay ongoing benefits.)

• Establish for resolution a FEE PETITION issue on the MSSICS DW01 (or the MDW in a non-MSSICS claim) and set a follow-up date. Counting from the date of the FO action, set a 60-day follow-up in a case resolved by SSA or a 120-day diary for a case resolved in Federal court proceedings.

• If the overpayment is less than 75% of past-due benefits, input an A-OTP to pay the claimant the difference between 75% of past-due benefits and the overpayment amount, or the first installment of that amount, if required. If the overpayment is more than 75% of past-due benefits, make no payment to the claimant. (See SI 02101.010, Past-Due Benefits Payable – Individual Alive Under Age 18 with Representative Payee – Dedicated Account Required; and SI 02101.020 Installment Payments of Large Past-Due Benefits – Individual Alive.)

  NOTE: In a concurrent claim, refer to the NOTE in GN 03930.030C.3.a.

• Send a manual fee notice to the claimant and representative. Refer to GN 03930.030C.4.

• If the FEE PETITION issue follow-up date arrives before the fee petition is received, go to GN 03930.030C.6. When fee authorization is received, go to GN 03930.032.

c. IAR Involved – No Prior Overpayment Pending

Past-due benefits equal to or greater than $5,000 - If the underpayment or past-due benefits due the claimant are equal to or greater than $5,000, the CR must complete the underpayment review and enter the appropriate code on the Underpayment Processing (UOUP) screen (see MSOM BUSSR 004.018 , Underpayment Processing (UOUP)) to show that the prepayment review is complete. The system will generate an online build transaction SSR alert message: I9 ALERT – REQUIRES IAR TO BE PAID BY OTP. When the CR receives the message, the CR continues with the transaction. The system will set the underpayment verification code to “V,” (UPV:V), withhold 100% of past-due benefits, and send an automated notice to the State to request the IAR amount. In these cases, when the response is received from the State, take the actions in the bullets below.

Past-due benefits less than $5,000 - If the underpayment is less than $5,000, the system will set the underpayment verification code to “V,” (UPV:V), withhold 100% of past-due benefits, and send an automated notice to the State to request the IAR amount. (See SI 02003.025, IAR Payment Processing.) In these cases, when the response is received from the State, take the actions in the bullets below.

• If the IAR is less than 75% of the past-due benefits:

  • Input a U TAC to the SSR to continue withholding 100% of past-due benefits (U TAC replaces UPV:V).

  • Input an A-OTP to pay the State the IAR amount. This also produces an automated notice to the State.

  • On the next workday, A-OTP to pay the claimant the difference between 75% of past-due benefits and the IAR amount, or the first installment payment if required. (Past-due benefits that are being withheld by U TAC minus IAR minus 25% of past-due benefits [if concurrent case, as defined in GN 03920.031B.2.] = benefits due claimant in one payment or installments.)

  • Establish for resolution the FEE PETITION issue on the claims development worksheet (DW01 or MDW) and set a follow-up date. Counting from the date of the FO action, set a 60-day follow-up in a case resolved by SSA or a 120-day diary for a case resolved in Federal court proceedings.

• If the IAR is equal to or greater than 75% of the past-due benefits, there are no benefits due claimant at this time.

  • Input a U TAC to the SSR to continue withholding 100% of past-due benefits (U TAC replaces UPV:V).

  • Input an A-OTP to pay the State the IAR amount. This also produces an automated notice to the State.

  • Establish the FEE PETITION issue on the claims development worksheet (DW01) for resolution and set a follow-up date. Counting from the date of the FO action, set a 60-day follow-up for a case resolved by SSA or a 120-day diary for a case resolved in Federal court proceedings.

• If past-due benefits minus IAR equals zero, there are no benefits for direct fee payment and no past-due benefits due the claimant.

  • Input an A-OTP to pay the State the IAR amount. This also produces an automated notice to the State.

  • Send a manual notice to the claimant and representative to advise that payment of any fee SSA authorizes is between the claimant and the representative.

  NOTE: In a concurrent claim, refer to the NOTE in GN 03930.030C.3.a.

• If the FEE PETITION issue follow-up date arrives before fee petition or authorization is received, go to GN 03930.030C.6. When fee authorization is received, go to GN 03930.032.

d. IAR Involved – Prior Overpayment Pending

• Delete the overpayment collect decision for any overpayment with a collect decision in the OPDD segment of the existing title XVI record. (This removes an overpayment decision for an overpayment from a period of time not adjudicated by the favorable determination or decision (i.e., a prior overpayment). When the overpayment decision is removed, a diary will be established. The diary will serve as a reminder to re-post the overpayment collect decision.) UPV:V (for IAR) withholds 100% of past-due benefits and sends an automated notice to the State for the IAR amount.

• Adjudicate the claim (i.e., calculate benefits, net past-due benefits for a current overpayment, and pay ongoing benefits.)

• When the response is received from the State, input a U TAC to continue withholding 100% of past-due benefits.

• Input an A-OTP to pay the State the IAR amount. This produces an automated notice to the State.

• If past-due benefits minus IAR is greater than zero, establish for resolution a FEE PETITION issue on the MSSICS DW01 (or MDW in a non-MSSICS claim) and set a follow-up date. Counting from the date of the FO action, set a 60-day follow-up in a case resolved by SSA or a 120-day diary for a case resolved in Federal court proceedings.

  If past-due benefits minus IAR is zero, there is no withholding for fee payment. Send a manual fee notice to advise claimant accordingly.

• Send a manual fee notice to the claimant and representative. Refer to GN 03930.030C.4.

• If the FEE PETITION issue follow-up date arrives before fee petition is received, go to GN 03930.030C.6. When fee authorization is received, go to GN 03930.032.

4. Preparing Fee Notice

If the initial or reconsideration determination on a title XVI only claim was favorable, there are past-due benefits, and the representative is eligible for direct fee payment, send a manual fee notice to the claimant with a copy to the representative to advise that SSA is withholding the claimant's past-due benefits for possible fee payment and that the representative must file a fee petition or a statement of intent to file a fee petition within 60 days of the date of the award notice if he/she wishes to receive direct payment from the claimant's withheld past-due benefits.

If SSA includes the claimant's eligible spouse's past-due benefits in the claimant's past-due benefits for representative fee purposes, send a fee notice to the spouse with a copy to the representative whenever SSA takes an action that affects his/her benefits.

If SSA is withholding past-due benefits on a title XVI only claim favorably decided by the court, refer to GN 03930.040G. for sample language to include in the fee notice to the attorney.

5. Sending Copies of Notices

Send a copy of the claimant's notice and the spouse's notice, if pertinent, to the representative or, if applicable, the principal representative (as GN 03910.050A. requires). Also send a copy to the representative payee and/or legal guardian, if applicable.

NOTE 1: Although a representative who was discharged by the claimant may file a fee petition, SSA may not release a copy of the claimant's award notice to a discharged representative without the claimant's written consent.

NOTE 2: Prior to the implementation of Title 2 Redesign Release 3 on June 21, 2004, if an Administrative Law Judge (ALJ) or an Administrative Appeals Judge (AAJ) issued the favorable decision, the ALJ or AAJ received a copy of the award notice.

6. Responding to a Matured FEE PETITION Issue Follow-up Date

a. Title XVI Only Claim

For a title XVI only claim, if within 60 days, the FO does not receive a fee authorization from the PC or HO, and the representative does not submit a fee petition or a statement that he/she waives the fee or waives direct payment, follow the procedures in GN 03930.090, No Fee Petition or Fee Authorization Received by PC or FO Before Diary Matures and SSA Is Withholding Past-Due Benefits – Non-Court Case.

If within 120 days, the FO does not receive a fee authorization from the court, follow the procedures in GN 03930.091, No Fee Petition or Fee Authorization Received By PC or FO Before Diary Matures and SSA is Withholding Past-Due Benefits – Court Case.

For additional guidance on diaries, see GN 03930.045, Diaries for Receipt of Fee Petitions and Fee Authorizations.

When the fee petition is received, go to GN 03930.030C.7.

b. Concurrent Titles II and XVI Claims

The PC diaries for the claims receipt of the fee petition and fee authorization. If within 60 or 120 days, the FO does not receive a fee authorization from the PC or HO, reestablish for resolution a FEE PETITION issue on the DW01 in MSSICS and set a follow-up date for 60 days.

If the fee petition is received in the FO, go to GN 03930.030C.7.

7. Forwarding the Title XVI File to HO or the PC after Petition Received

For title XVI only and concurrent titles II and XVI claims, before forwarding a title XVI file to HO or the PC for necessary action on a fee petition filed by the representative, fully adjudicate the title XVI claim and/or resolve any existing postentitlement issues (as GN 03930.025B. and GN 03930.025C. describe).

D. References

The following sections provide specific instructions for related CR functions:

• FO actions on receiving the claimant's appointment of representative, GN 03910.040.

• Contacting a represented claimant, GN 03910.050.

• FO action when representative waives a fee or direct payment of a fee, GN 03920.020D.

• Receipt and routing of fee petitions, GN 03930.025.

• Authorized Representative, MSOM MSSICS 023.008 .

• Direct SSR Authorized Representative, MSOM BUSSR 002.013 .

• Direct SSR Authorized Representative/Fee, MSOM BUSSR 002.012 .

• Representative Fee Update Data, MSOM BUSSR 002.014 .

• Notice language, NL 00801.015, NL 00802.010, and NL 00802.030.

• One-Time Payments, SM 01901.000.

• Single Payment System, MSOM SPECPAYSYS 001.001