GN 03930.060: Title II and Title XVI - Releasing Past-Due Benefits Withheld for Possible Direct Payment to Representative

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~~Effective Dates: 02/17/2010 - Present~~
Effective Dates: 04/04/2018 - Present
TN 8 (02-05)
GN 03930.060 Title II and Title XVI - Releasing Past-Due Benefits Withheld for Possible Direct Payment to Representative
A. Policy
SSA releases title II and title XVI past-due benefits withheld for possible direct payment of fees for representation in the following situations:
* To the representative who is eligible for direct payment, when SSA, a Federal court, or both have authorized fees for services (refer to GN 03930.085).
* To the claimant when:
* the representative has waived a fee or direct payment of a fee;
* SSA has released payment to the representative and the total fee(s) was less than the amount of past-due benefits withheld; or
* SSA has notified the representative and the claimant of the time limit that applies in order to receive direct payment of a fee for administrative level services, and the representative has not filed a fee petition or a written request for an extension of time within 20 days from the date of the notice.
See GN 03930.001C. for the definition of a representative “eligible for direct payment.”
B. Process
The Form SSA-1560A-U5 (Authorization to Charge and Collect a Fee) documents the fee authorized under the fee petition process for services provided in proceedings before SSA. (GN 03930.001C.5. lists other fee authorization documents.) The processing center (PC) fee reviewer, special case review analyst, Administrative Law Judge (ALJ), or the Office ofDisability Adjudication and Review’s (ODAR's) Attorney Fee Branch (AFB) instructs the benefit authorizer (BA) or benefit technical examiner (BTE)) to release title II funds. The claims representative (CR) releases title XVI funds.
The Form SSA-1560A-U5 (Authorization to Charge and Collect a Fee) documents the fee authorized under the fee petition process for services provided in proceedings before SSA. (GN 03930.001C.5. lists other fee authorization documents.) The processing center (PC) fee reviewer, special case review analyst, Administrative Law Judge (ALJ), or the Office of Analytics, Review, and Oversight (OARO), Attorney Fee Branch (AFB) instructs the benefit authorizer (BA) or benefit technical examiner (BTE)) to release title II funds. The claims representative (CR) releases title XVI funds.
1. Title II
Generally, the BA/BTE certifies direct payment to the representative in fee petition process cases when SSA has authorized a fee and to the attorney when the court has authorized a fee.
NOTE: An individual PC may require that the fee reviewer (e.g., reconsideration reviewer or disability specialist) instruct the BA/BTE about releasing funds and sending notices in ODAR and court cases.
NOTE: An individual PC may require that the fee reviewer (e.g., reconsideration reviewer or disability specialist) instruct the BA/BTE about releasing funds and sending notices in hearing level or above and court cases.
2. Title XVI
The CR releases title XVI funds and sends notices. See GN 03930.030, Title XVI - Adjudicating Claims and Posteligibility Actions Involving Representatives Who May Petition, and GN 03930.032, Title XVI – Fee Authorization Received - Making Direct Fee Payment.
C. Procedure - Identify Situations Preventing Payment
When the PC technician or the title XVI CR receives the SSA-1560A-U5 or another written authorization document, first review the authorization and the claim file for situations that preclude or delay certification of direct payment. Note that the authorization reflects the fee approved and generally addresses the means of payment.
1. Impediments – Require Referral to the Reviewer
Do not proceed with payment in the following situations. Instead, in the PC, refer the claim file to the PC fee reviewer, advise him/her of the reason(s) you did not certify direct payment, request clarification, and set a diary (as GN 03930.060C.4. describes).
NOTE: In a title XVI only claim, a CR in the servicing FO reviews the file for impediments to payment from the withheld title XVI past-due benefits; however, if the fee authorizer is aware of an impediment, he/she should identify the impediment for the CR. In concurrent titles II and XVI claims, if the CR identifies an impediment that impacts direct payment from the title II withheld benefits, the CR will advise the PC of the impediment.
* A statement on the fee authorization prevents payment.
EXAMPLES:
* The representative is not eligible for direct payment.
* The fee amount determined for certification of direct payment exceeds the 25 percent withheld from title II and/or title XVI past-due benefits.
* The fee amount(s) authorized exceeds $10,000, and:
* in a case decided below the hearing level, the Form SSA-1560A-U4 is not signed by the Attorney Fee Officer of ODAR's AFB; or
* in a case decided below the hearing level, the Form SSA-1560A-U4 is not signed by the Attorney Fee Officer of the AFB; or
* in a case decided by an ALJ, the SSA-1560A-U5 is not signed by the Regional Chief ALJ or other authorizing official shown in GN 03930.015D.
NOTE: Some offices require that the fee reviewer verify the proper authorization of fees in excess of $10,000.
* The fee amount authorized does not reflect dollars and cents.
* An amended award reduced the past-due benefits withheld to an amount less than the fee amount determined for certification of direct payment.
* An amended award increased the past-due benefits, and the fee amount authorized exceeded the amount determined for certification of direct payment.
* Material indicates the representative’s services are continuing.
* There is evidence of a trust or escrow account, or payment of the fee from some other source, which the fee authorizer did not consider. (See GN 03920.025C. for a discussion of the effect of funds held in a trust or escrow account.)
* Any other question which requires clarification.
2. Impediment - Another Representative Petitions
Do not proceed with payment if, when processing the action, you receive or learn of a fee petition filed by another representative who is eligible for direct payment. Instead, refer the claim file to the person who authorized the fee you are considering, advise him/her of the reason(s) you did not certify direct payment, request clarification, and set a diary (as GN 03930.060C.4. describes).
3. Impediment - Request for Administrative Review
Do not proceed with payment if, when processing the action, you receive or learn of a fee protest or request for administrative review. Instead, acknowledge receipt if necessary (see GN 03950.030B.1.), and refer the claim file to the appropriate person or component for administrative review (see GN 03950.005). Set a diary (as GN 03930.060C.4. describes).
4. Diary
a. Referral to ODAR
a. Referral to AFB
~~If you refer the claim file to ODAR or you expect the fee reviewer will do so, diary the case for 60 days. Show the reason for the diary as “Fee Authorization.”~~
If you refer the claim file to AFB or you expect the fee reviewer will do so, diary the case for 60 days. Show the reason for the diary as “Fee Authorization.”
b. No Referral to ODAR
b. No Referral to AFB
Diary the case for 60 days. Show the reason for the diary as “Fee Petition.”
D. Procedure - Release Benefits Withheld
If no impediment listed in GN 03930.060C. precludes or delays direct payment, release the benefits withheld (as shown generally for title XVI claims in GN 03930.035 and for title II claims in GN 03930.060D.1. and GN 03930.060D.2., but see the anomalies in GN 03930.060D.3.). Note that for purposes of this subsection, payment from another source would include funds in a trust or escrow account. (See GN 03920.025 for a discussion of the effect of funds held in a trust or escrow account and GN 03920.019 for information about the assessment or “user fee” associated with direct payment.)
NOTE: In a concurrent claim, ensure that offset is completed before releasing title II past-due benefits.
1. No Payment Expected From Other Source(s)
Situation
Action
* Fee equals or exceeds amount of benefits withheld
After deducting the assessment, pay to the representative all of the benefits withheld and authorized for the fee payment.
* Amount of benefits withheld exceeds fee
After deducting the assessment, pay the fee to the representative and, unless GN 03930.060D.3.a. applies, release the remainder based on the priority of payment policy.
2. Payment Expected From Other Source(s)
Situation
Action
* Payment expected from other source(s) equals or exceeds fee
Unless GN 03930.060D.3. applies, release all of the benefits withheld based on the priority of payment policy.
* Fee equals or exceeds the sum of the amount of benefits withheld and payment expected from other source(s)
After deducting the assessment, pay to the representative all of the benefits withheld and authorized for fee payment.
* The sum of the amount of benefits withheld and payment expected from other source(s) exceeds fee
After deducting the assessment, pay the appropriate portion of the fee to the representative and, unless GN 03930.060D.3. applies, release the remainder based on the priority of payment policy.
(See GN 02301.000 for title II underpayment payment policy and SI 02101.000 for priority of payment policy for title XVI cases.)
3. Anomalies
Exercise caution when certifying direct payment or releasing any excess past-due benefits withheld in the situations identified in GN 03930.060D.3.a and GN 03930.060D.3.b.
a. Case Decided in Federal Court Proceedings or on Court Remand
When you certify direct payment to the representative and the authorized administrative fee is less than 25 percent of the past-due benefits, continue to withhold the remainder if a Federal court may award an additional fee to an attorney under §206(b) or §1631(d) of the Social Security Act. Do not release the remainder to the beneficiary(ies) or recover an overpayment in this situation.
b. Payment Expected From Other Source(s) in Concurrent Titles II and XVI Cases
If the representative has funds in a trust or escrow account that he/she will collect for services unique to the supplemental security income program, reduce both the amount you consider as held in trust or escrow and the fee amount authorized for direct payment purposes from title II past-due benefits. (See the example in GN 03930.060D.4.b.) The title XVI CR will deduct the escrow funds for services unique to the SSI program from the fee amount authorized from title XVI past-due benefits, as appropriate
4. Examples
a. Funds Held in Escrow - No Fee Amount Attributable to Title XVI Exclusively
SSA withheld $2,600 and the representative had $1,000 held in a trust or escrow account. The fee authorizer approved a fee of $2,500. Consistent with GN 03930.060D.2.c. and the information provided in the fee authorization, you deduct the assessment ($77.00), certify $1,423.00 for direct payment to the representative and release the $1,100 remainder to the claimant. In addition, SSA releases any title XVI past-due benefits withheld for direct payment because the title II past-due benefits satisfied the full fee amount. The representative collects the $1,000 fee balance from the trust or escrow account.
$ 2,600.
Amount withheld
+ 1,000.
Amount in trust or escrow
$ 3,600.
Total available
- 2,500.
Fee authorized
$ 1,100.
Remainder for claimant
$ 2,600.
Amount withheld
- 1,100.
Remainder for claimant
$ 1,500.
- 77.00
$ 1,423.00
Amount for direct payment before assessment
Assessment
Amount for direct payment
b. Funds Held in Escrow – Portion of Fee Designated as Attributable to Title XVI Exclusively
As in GN 03930.060D.4.a., SSA withheld $2,600 in title II past-due benefits and the attorney had $1,000 held in a trust or escrow account. However, the fee authorizer approved a fee of $2,500 and designated $500 of that as attributable to title XVI exclusively.
As shown, you must reduce by $500 both the amount you consider in trust or escrow and the fee authorized for direct payment purposes from the title II benefits. Consistent with GN 03930.060D.2.c. and GN 03930.060D.3.b. and the information provided in the fee authorization, you deduct the assessment ($77.00), certify $1,423.00 for direct payment to the representative, and release the $1,100 remainder to the claimant. In addition, the CR releases any title XVI past-due benefits withheld for direct payment because the representative collects the $1,000 fee balance from the trust or escrow account.
$ 2,600.
Amount withheld
Amount in trust or escrow
+ 500.
($1,000 -$500 for SSI)
$ 3,100.
Total available
- 2,000.
Fee authorized ($2,500 - $500)
$ 1,100.
Remainder for claimant
$ 2,600.
Amount withheld
- 1,100.
Remainder for claimant
$ 1,500.
- 77.00
$ 1,423.00
Amount for direct payment before assessment
Assessment
Amount for direct payment
If instead you had considered the full amount in trust or escrow ($1,000) but reduced by $500 the fee authorized for direct payment purposes, you would erroneously certify $1,000 for direct payment to the representative and release the $1,600 remainder to the claimant. Although the representative could collect $1,000 from the trust or escrow account, the claimant would have to repay the representative the $500 fee balance.
NOTE: In concurrent cases, the fee attributed only to the title XVI claim cannot be used to lower the title II income. See GN 02610.000 and SI 02006.000.

POMS Reference

GN 03930.060: Title II and Title XVI - Releasing Past-Due Benefits Withheld for Possible Direct Payment to Representative