GN 03940: Fee Authorization Under the Fee Agreement Process
TN 17 (03-05)
A. Procedure - Unfavorable Decision
Take no action under the fee agreement process if SSA does not favorably decide the claim or post entitlement (PE) action. (But see GN 03940.003A concerning concurrent title II and XVI claims.)
B. Procedure - Reconsideration Level
Take the following actions when the field office (FO) or processing center (PC) makes a favorable decision. Also, see GN 03940.025D. for PC reading practices and action control record (ACR) preparation when direct fee payment is involved.
1. FO Makes Favorable Decision
2. PC Makes Favorable Decision
When the PC makes a favorable decision on reconsideration and a fee agreement is in the file, the claims authorizer (CA) annotates the Special Message fields of the Master Beneficiary Record (MBR) with the representative's name and fee agreement information.
If you are the reconsideration reviewer (RECONR), senior claims processing specialist (SCPS), or the position designated by the PC, take the following actions:
Approve or disapprove the fee agreement, as GN 03940.001D. explains.
Document the determination made on the fee agreement on a Form SSA-553 (Special Determination) or another form the PC designates, providing rationale for a disapproval of a fee agreement. (See GN 03940.090C - Exhibit 2 for sample language.)
Annotate the Form SSA-1128 (Representative Involved) if there is a paper claims file.
Verify if a non-attorney representative is eligible for direct fee payment. (See GN 03940.020E.1. for this procedure.)
Process the claim to payment, as MSOM MCS 009.009 describes, and, if the representative is eligible for and has not waived a fee or direct payment, withhold 25 percent of past-due benefits or the amount of the authorized fee, if known.
Proceed as GN 03940.020E describes.
C. Procedure - Hearing or Appeals Council Review Level
To confirm that the Administrative Law Judge (ALJ) or Administrative Appeals Judge (AAJ) who favorably decided the claim approved or disapproved the fee agreement, look in the claim(s) file for either a Form HA-515-U6 (Order) or a Form HA-517 (Order of Appeals Council). Also see GN 03940.025D. for PC reading practices and ACR preparation when direct fee payment is involved.
1. Fee Agreement Approved
When there is an approved fee agreement in the claim(s) file:
If the representative is a non-attorney, determine if the representative is eligible for direct payment. (See GN 03940.020E.1. for this procedure.)
Send a copy of the notice to the representative.
Certify direct payment to the representative who is eligible for direct payment and release any remaining past-due benefits to the claimant and any auxiliary(ies), unless:
one of the parties or the decision maker has requested administrative review,
the claimant filed concurrently for title II and title XVI benefits and windfall offset is still pending, or
there is court case involvement.
Note that an ALJ's or AAJ's approval of a fee agreement is contingent on whether the claim results in past-due benefits. (See Hallex I-1-2-12.) If the claim does not result in past-due benefits, disapprove the fee agreement. In addition to any other required paragraphs, include paragraphs ATY817, ATYR03, and 160 in the notice. In concurrent titles II and XVI cases, send a copy of the notice to the servicing FO.
2. Fee Agreement Disapproved
When there is a disapproved fee agreement in the claim(s) file, effectuate the decision as a fee petition case (see GN 03930.000 for fee petition case processing instructions).
Do not include in the notice a paragraph stating that the fee agreement is disapproved; the ALJ or AAJ decision advised the claimant and representative of the disapproved fee agreement and afforded administrative review rights.
3. Fee Agreement Neither Approved Nor Disapproved
If the ALJ or AAJ did not make a determination on the fee agreement, do not delay effectuating the decision. Rather, if you are the CA, claims technical examiner (CTE), SCPS, or RECONR take the following actions:
process the claim to payment;
determine if a non-attorney representative is eligible for direct payment, by following the procedure defined in GN 03940.020E.1.;
withhold 25 percent of past-due benefits if the representative is eligible for and did not waive direct payment;
request an incomplete notice; and
use the “neutral” language paragraphs regarding representative's fees (see GN 03940.075 for paragraphs). Do not use paragraphs mentioning the fee petition process in the notice.
Contact the Office of Hearing Operations (OHO) to obtain a signed determination on the fee agreement. (PCs will designate position to make the contact.)
If an ALJ issued the favorable decision, send an e-mail message to the hearing office director (HOD) of the ALJ's hearing office (HO) with a cc to the ALJ. Within SSA, use OHO Fee Contacts to obtain the name and fax number of the HOD. Click on “Field Staff Listings” to find the Region/HO/HOD information.
If you receive an out-of-office message from the HOD or do not receive an acknowledgement from the HOD or ALJ within 3 days, follow up with a hearing office group supervisor from that HO's staff listing.
If the Appeals Council issued the favorable decision, contact the Attorney Fee Branch (AFB), OARO. Call: 703-605-7900, fax: 703-605-7901, or send an e-mail message: |||OARO OAO ATTY FEE BR.
Advise the HOD/ALJ or AFB whether an exception to the fee agreement process exists and, if so, which one(s). (See GN 03940.003B for exceptions.)
Fax a copy of the fee agreement and any other pertinent documents (e.g., SSA-1696s, waiver statements, information on other representatives, or a statement that there is only one representative) to the HOD/ALJ or AFB.
Document the file with a record of any telephone contact.
Diary the case for 15 days.
If you have not received the determination when the diary matures, take the following actions:
E-mail or fax a follow-up memorandum to the HOD with a cc to the ALJ and the Regional Chief ALJ (RCALJ); or to the AAJ with a cc to the Deputy Chair, Appeals Council, through the AFB (GN 03940.090E Exhibit 4 provides sample language), requesting the order approving or disapproving the fee agreement. Attach or fax copies of the fee agreement and the documentation of the earlier contact. GN 03940.090 Exhibit 3 provides RCALJ addresses and the codes for the HOs they service, or refer to OHO Fee Contacts.
Re-diary the case for 30 days for return of the fee agreement determination.
If you have not received the determination when the diary matures, email or fax the earlier message to the Office of the Chief ALJ (OCALJ) (email: ^OHO OCALJ Delayed Fee Agreement Protest or fax: 703-605-8501) or the AFB, as appropriate, and request that they follow up on the request. For OCALJ, please include a summary or documentation of previous follow-up actions and the PC contact name and phone number.
4. Fee Agreement Approved Incorrectly
a. Referral Procedures
If you are the benefit authorizer (BA), benefit technical examiner (BTE), CA/CTE, SCPS, or RECONR, and you believe the ALJ or AAJ incorrectly approved a fee agreement because it does not meet the requirements of the Act (GN 03940.003A) or an exception to the fee agreement process applies (GN 03940.003B), take the following actions:
Process the claim to payment.
Determine if a non-attorney representative is eligible for direct payment. (See GN 03940.020E.1. for this and related procedures.)
Withhold 25 percent of past-due benefits if the representative is eligible for direct payment.
Request an incomplete notice, using the “neutral” language paragraphs regarding representative's fees (see GN 03940.075, paragraphs C., D., and E.).
If the decision maker is an ALJ, prepare a memorandum addressed to the ALJ's RCALJ. (See GN 03940.090F - Exhibit 5, “Memorandum to the Regional Chief ALJ - Fee Agreement Approved Incorrectly - ALJ Hearing Level” and GN 03940.090D. Exhibit 3, Regional Chief ALJs' Addresses and Codes of the Hearing Offices Within Their Jurisdictions or OHO Fee Contacts. Fax the memo with a copy of the ALJ's decision, the appointment(s) of representative(s), the fee agreement, the order approving the fee agreement, and any other relevant documents (e.g., information about multiple fee agreements and/or representatives), to the RCALJ.
If the decision maker is an AAJ, prepare a memorandum to the Deputy Chair, Appeals Council. (See GN 03940.090G - Exhibit 6, “Memorandum to Deputy Chair, Appeals Council - Fee Agreement Approved Incorrectly - Appeals Council Review Level.”). Fax the memo with a copy of the AAJ's decision, the appointment(s) of representative(s), the fee agreement, the order approving the fee agreement, and any relevant documents, to:Office of Analytics, Review, and Oversight
Office of Appellate Operations
Attorney Fee Branch, Suite 805
Ensure that your memorandum contains a specific return address (including module number or other routing identifier and fax number) and the name and phone number of the person who should receive it.
Diary the claim for 45 days (diary subject to local discretion) for OARO's action on the fee agreement.
NOTE: In the absence of evidence to the contrary, when the OARO decision maker approved a fee agreement, assume that the fee agreement was filed timely.
b. Follow-Up Procedures
If you have not received a memorandum from OARO regarding the action taken when the diary period expires, follow up with the RCALJ or AFB by memorandum, e-mail or fax. (See GN 03940.090.) To contact the AFB, use the following: fax: 703-605-7901, telephone: 703-605-7900, or e-mail: |||OARO OAO ATTY FEE BR.
Explain that you have not received information regarding your request for OARO's action on the incorrectly approved fee agreement.
Diary the claim for 15 days.
If you still do not have a reply when the diary matures, email or fax the earlier message sent to the RCALJ to the OCALJ (email: ^OHO OCALJ Delayed Fee Agreement Protest or fax: 703-605-8501) or the AFB, as appropriate, and request that they follow up on the request. For OCALJ, please include a summary or documentation of previous follow-up actions and the PC contact name and phone number.
c. Procedures After OHO Acts on Referral
If OHO reverses the fee agreement determination, OHO will fax a copy of the action to the PC. When you receive the copy of the reversal, diary the claim for 60 days if the representative is eligible for direct payment, as shown in GN 03930.045B.2., for receipt of a fee petition and fee authorization from OHO.
If OHO affirms the fee agreement determination, OHO will fax you a memorandum advising you to process the representative's fee under the fee agreement process. When you receive the memorandum, follow the steps in GN 03940.025C.
D. Procedure – Reading Practices When Direct Fee Payment Is Involved
SSA uses the Payment History Update System (PHUS) to collect the assessment and fee payment amounts in title II claims and the Processing Center Action Control System (PCACS) to collect representative fee payment volume counts and timeliness. To accomplish this, PC personnel follow the instructions below to prepare a supplemental ACR when a claim involves direct fee payment.
1. Initial Steps
a. Step 1
Designated technicians screen incoming claims and other material for an indication of the involvement of a representative eligible for direct payment, and whether a fee agreement (or a fee petition) is involved.
b. Step 2
If the representative eligible for direct payment has not waived direct payment, establish a supplemental ACR, which is referred to as a representative fee ACR and formally called an “attorney fee ACR.” Establish this representative fee ACR regardless of whether SSA will pay the fee immediately upon adjudication of the claim or delay payment for any reason. The ACR is prepared in addition to, not in lieu of, the ACR prepared to control the incoming material.
EXAMPLE: The incoming material is an ALJ favorable decision with an approved fee agreement. The representative is eligible for direct payment and has not waived a fee or direct payment. Prepare an ACR with a TOEL of APPEAL HEARING. Create a second ACR and assign a TOEL per Step 3.
c. Step 3
Assign a TOEL1/2 of ATFEE FEEPAY for a fee agreement.
(If it is then or later determined that a fee petition is involved, assign of TOEL1/2 of ATFEE PETPAY.)
2. Subsequent Steps
Subsequent handling of the representative fee ACR will depend on both the means by which the favorable decision is effectuated and whether SSA can pay the fee immediately. An individual PC might have local instructions that call for slightly different routing than is shown.
a. Modernized Claim System (MCS) Earning Computation (EC)
If the claim is being processed via MCS EC and the fee can be paid immediately, the technician who does the final sign-off on the MCS EC trigger should FIN (files in) the representative fee ACR after verifying that the fee has been set for payment on the Single Payment System (SPS). If SPS will not automatically pay the fee (due to multiple representatives or any other reason), send the representative fee ACR to the BA/BTE. The BA/BTE should send the representative fee ACR to FIN after their action to pay the fee is complete.
If the claim was processed by MCS and the total fee cannot be set immediately, either because there is pending development issue or a delayed auxiliary claimant(s) that could affect the fee amount, or it is now a fee petition case, route the representative fee ACR to the DHF PAY location in PCACS.
b. A101/W101 Processing
If an A101 or W101 is used to adjudicate the claim, both ACRs will first go to the BA and then to the PHF MACADE location. If the fee can be paid immediately, the BA will FIN the representative fee ACR after confirming that SPS will pay the fee.
For A101/W101 cases for which the fee cannot be set and paid immediately, route the representative fee ACR first to the BA and PHF MCDE, and then to the DHF PAY location pending resolution of the outstanding issue(s).
When the issues that prevented immediate fee payment have been resolved, pull the representative fee ACR from the DHF PAY location. It will accompany the associated ACR to the BA, PHF MCDE, etc., and be read FIN after SPS pays the authorized fee.