GN 03940.046: Title XVI - Field Office Processing of Fee Agreements on Favorably Decided Title XVI Only Claims

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~~Effective Dates: 04/05/2018 - Present~~
Effective Dates: 06/11/2018 - Present
TN 20 (08-06)
GN 03940.046 Title XVI - Field Office Processing of Fee Agreements on Favorably Decided Title XVI Only Claims
A. Procedure – Claims Representative (CR) Actions Based on Decision Levels
1. Initial and Reconsideration Levels
Take the actions listed below to process a fee agreement.
* Approve or disapprove the fee agreement (see GN 03940.001D.).
* Determine if automated or manual fee processing applies. See GN 03940.046C.
In most cases, when the fee agreement is approved, the Supplemental Security Record (SSR) automatically computes the Title XVI fee amount and issues a fee authorization notice. Refer to SM 01308.100, MSOM BUSSR 002.012, MSOM BUSSR 002.013, MSOM BUSSR 002.014, and MSOM BUSSR 002.015 for information on automated representative fee processing.
If the fee agreement is approved and the case is excluded from automated processing (see GN 03940.046C.2.), follow the procedures in GN 03940.046A.1.c. through GN 03940.046A.1.g.
* Determine the amount of the retroactive payment by examining the payment history (PMTH segment), underpayment information (MPMT segment), and computation history (CMPH segment) on the SSID. (See SM 01311.025 Payment History, SM 01601.865 Miscellaneous Payment Data, and SM 01601.790 Computation History.)
* Reduce the Title XVI retroactive payment amount by any benefits and/or payments that are not considered past-due benefits for representative fee purposes. (See GN 03920.031 and GN03940.007 for information on past-due benefits). The result is the Title XVI past-due benefit amount for the fee computation.
* Authorize a fee that equals the least of:
* 25 percent of the Title XVI past-due benefits; or
* the percentage of past-due benefits or the flat fee amount specified in the fee agreement; or
* the applicable specified dollar amount of the fee cap indicated in GN 03940.003A.3. (e.g., $5,300, $6,000)
NOTE: Refer to GN 03940.052 for policy on calculating the representative's fee in SSI couples cases.
* If the representative is eligible for direct fee payment, refer to GN 03940.046D. for procedures to record the fee and the assessment on the SSR.
* Prepare and issue a Title XVI Fee Agreement Notice if a manual notice is required (see GN 03940.008 and GN 03940.055 for notice policy and procedures).
If you are the decision maker (see GN 03960.001D.4.) and believe a request for administrative review is appropriate (see GN 03940.001E.), you must file the request within 15 days of the date of the notice. See GN 03960.040 for information on requesting administrative review.
2. Hearing or Appeals Council Review Level
Verify that the Administrative Law Judge (ALJ) or Administrative Appeals Judge (AAJ) approved the fee agreement by looking for an HA-515-U6, HA-517 or other determination document.
If the determination is correct and manual processing is required (see GN 03940.046C.), go to GN 03940.046A.1.c.
If the ALJ or AAJ did not make a determination, see GN 03940.046E.
If you believe the ALJ or AAJ incorrectly approved the fee agreement, see GN 03940.046F.
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. Refer to GN 03940.055C.3.a. for a description of the fee agreement disapproval notice.
B. Procedure - Documenting the Fee Agreement Determination
1. Initial and Reconsideration Level
At the initial and reconsideration level, document the fee agreement determination on an SSA-553 or report of contact (RPCO or DROC screen). See GN 03940.090C. Exhibit 2 for sample language.
2. Hearing and Appeals Council Review Level
The ALJ or AAJ documents the fee agreement determination on an HA-515-U6, HA-517 or other determination document.
C. Process - Determining if Automated or Manual Processing Is Required
1. Automated Processing
In most Title XVI only cases, the SSR automatically computes a representative's fee and issues the fee notice (refer to SM 01308.100). If the representative is eligible for direct payment, the SSR also calculates and deducts the assessment and pays the fee to the representative. The cases that are excepted from the automated process are listed in GN 03940.046C.2.
Refer to SM 01308.100, MSOM BUSSR 002.013, MSOM BUSSR 002.014, and MSOM BUSSR 002.015 for information on automated representative fee processing.
2. Manual Processing Required
In any of the following situations, it is necessary to manually calculate the authorized fee and issue the fee notice. If the representative is eligible for direct payment, it is also necessary to manually determine the assessment and make direct payment to the representative.
a. All Representatives
Claimant has multiple representatives. (See GN 03940.046D.2.)
Eligible spouse's past-due benefits are included in calculating past-due benefits for representative fee purposes, in authorizing the claimant's representative's fee, and paying the fee when the representative is eligible for direct payment. (See GN 03940.046D.3.)
Start date records (regardless of whether the start date month is before or after the beginning of the past-due benefits period), force pay records, force due records, and post eligibility cases (i.e., disability cessation appeals). (See GN 03940.046D.4.)
b. Representative Eligible for Direct Fee Payment
There is an overpayment for a prior period of eligibility that is greater than 75 percent of the past-due benefits. (See GN 03940.046D.1.)
Interim assistance reimbursement (IAR) cases with an overpayment for a prior period of eligibility where the sum of the IAR payment and the overpayment is greater than 75 percent of past-due benefits. (See GN 03940.046D.1.)
It is also necessary to manually issue the fee notice when a representative who is eligible for direct payment waives charging a fee. (See GN 03940.046D.5.)
D. Procedure – Fee Agreement Approved - Representative(s) Eligible for Direct Payment
1. Prior Overpayment
Refer to SM 01901.950C.3. for procedures in these situations:
CASE SITUATION
REFERENCE
Prior overpayment, IAR involved
SM 01901.950C.3.b.
Prior overpayment, No IAR involved
SM 01901.950C.3.e.
In addition, if the claim also involves one of the exceptions to automated processing listed in GN 03940.046C.2., refer to the pertinent procedures in GN 03940.046D.2 through GN 03940.046D.6.
2. Multiple Representatives
If there are multiple representatives, take these additional actions:
* Ensure that on the MSSICS UFEE screen, item 3, Multiple Authorized Representatives, is coded “Y.”
* In item 6, Fee Status, on the MSSICS UFEE screen, select “8,” “Manually computed fee agreement.” (See MSOM BUSSR 002.014.)
* Manually calculate the fee and the assessment, and divide the fee and the assessment between/among the representatives. For multiple representatives see GN 03920.050D.2 and GN 03920.019E.
* Enter the representative fee and assessment on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).
* Issue a manual fee notice from the Document Processing System (DPS) to the claimant, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.070).
Refer to GN 03940.046D.6. for the order in which to take these actions.
3. Eligible Couples – Past-Due Benefits of Both Members of Couple Included in Authorized Fee Amount
Refer to GN 03940.052 for the policy in calculating past-due benefits in an SSI couple’s case. The system will calculate the portion of the authorized fee that is based on the eligible individual's past-due benefits; however, when including the eligible spouse's past-due benefits increases the amount of the authorized fee, take these actions:
* In item 6, Fee Status, on the MSSICS UFEE screen, select “8,” “Manually computed fee agreement.” (See MSOM BUSSR 002.014.)
* Manually calculate the additional fee to authorize based on the eligible spouse's past-due benefits, ensuring that the total fee does not exceed the maximum fee based on the fee agreement.
* Withhold from the eligible spouse's past-due benefits the amount calculated above and calculate the assessment, if applicable.
* Enter the representative fee and assessment on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).
* Issue a manual notice from DPS to the eligible spouse, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.070).
Refer to GN 03940.046D.6. for the order in which to take these actions.
4. Start Dated Records, Force Pay Records, Force Due Records, and Post Eligibility Cases
If the current SSR record has a start date (regardless if the start date month is earlier or later than the beginning of the past-due period subject to fees) or is a force pay record, a force due record, or a post eligibility case (i.e., disability cessation appeal), the SSI system is not programmed to compute the Title XVI portion of the fee. Therefore, the Title XVI portion of the fee must be computed and paid manually. In any of these situations, take these actions:
* Follow the instructions in MSOM BUSSR 002.013.
* Enter the representative fee and assessment on the One-Time Payment Fees (UPOF) screen (see MSOM BUSSR 003.025).
* Issue a manual notice from DPS to the claimant, with a copy to the representative, to explain the fee authorization and payment actions (see GN 03940.055).
5. Representative Eligible for Direct Payment Waives Fee
When a representative who is eligible for direct payment states he/she will not charge a fee, send a manual notice to the representative to advise him/her how the waiver affects SSA's action. A notice is available in the General/Fees section of DPS that includes the universal text identifier (UTI) FEE073.
6. Manually Calculated Fee and Direct Fee Payment
When it is necessary to manually calculate the Title XVI fee amount (see GN 03940.046C.2.) and the representative is eligible for direct fee payment, follow the order below to process the fee action.
STEP
ACTION
NOTES
1
Determine the SSI retroactive benefit amount.
See GN 03940.046A.1.c.
2
Calculate the past-due benefit amount for fee purposes and the Title XVI fee (not to exceed the maximum fee specified in the fee agreement, e.g., $5300).
See GN 03920.031 and GN 03940.046A.1.d. and e.
3
Determine the amount available to pay by one time payment (OTP) to the representative as follows:
SSI retroactive amount (Step 1)
- IAR amount, if any
Difference (amount available to pay by OTP to the representative)
4
Determine the assessment amount and the amount to pay by OTP to the representative as follows:
Compare the Title XVI fee (Step 2) with the amount available (Step 3).
* If the Title XVI fee is greater than the amount available, use the amount available (Step 3) to calculate the assessment. Subtract the assessment from the amount available, and the remainder will be paid to the representative by OTP.
* If the Title XVI fee is equal to or less than the amount available, use the Title XVI fee amount (Step 2) to calculate the assessment. Subtract the assessment from the fee and the remainder will be paid to the representative by OTP.
See GN 03920.017E.4. for additional guidance on calculating the amount to pay to the representative
See GN 03920.019 Assessment of Representatives Who Received Direct Payment
See GN 03920.025 if the claimant deposited money in an escrow account.
5
Determine the amount to pay by OTP to the claimant as follows:
SSI retroactive benefit amount (Step 1)
* IAR amount, if any
* Amount used to collect the assessment and pay the representative by OTP (Step 4)
* Prior collectible overpayment, if any
Difference (amount to pay by OTP to the claimant)
Consider installment/dedicated account provisions
(See SI 02101.020 and SI 02101.010.)
See GN 03920.033 Representative’s Fee – Title XVI Past-Due Benefits Payable
6.
Issue the IAR by OTP. Leave the fee status unresolved.
7.
The following day, post the manual fee information to the SSR via UFEE using a FEE STATUS = 8 and the approved Title XVI fee amount (Step 2). The SSR will display FST = M and FMA = the Title XVI fee amount.
8
Issue the OTP to the representative in the amount calculated at Step 4, and post the assessment.
9
Issue a manual fee notice.
See GN 03940.008 and GN 03940.055 for notice policy and procedures
Refer to SM 01901.950 One Time Payment (OTP) Processing for Direct Payment of Authorized Representatives.
E. Procedure - Fee Agreement Neither Approved nor Disapproved
If the ALJ or AAJ did not make a determination on the fee agreement, take the following actions:
* Process the claim to payment. Refer to MSOM BUSSR 002.014 Representative Fee Update Data, for coding the UFEE screen for the unresolved fee.
* Contact the hearing office, the Office of Hearings Operations (OHO) regional office, or the Office of Appellate Operations (OAO) to obtain a signed determination.
If an ALJ issued the favorable decision, e-mail the message to the ALJ's hearing office (HO), with a cc to the ALJ. Within SSA, use OHO Fee Petition Contact List to find the HO. If you do not hear from the HO or ALJ, send another email after one week.
If the Appeals Council issued the favorable decision, contact the Attorney Fee Branch (AFB), OHO. Call: 703-605-7900, fax: 703-605-7901, or send an e-mail message: ^DCARO OAO ATTY FEE BR.
Advise the HO (cc ALJ) or AFB whether an exception to the fee agreement process exists and, if so, which one(s). (See GN 03940.003B. for exceptions.)
Email a memo with date of the favorable decision to the HO (cc 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, requesting the order approving or disapproving the fee agreement, to the HOD with a cc to the ALJ and the Regional Chief ALJ (RCALJ), or to the AAJ with a cc to the: Executive Director, OAO Suite 1400, Skyline Tower E-mail: ^DCARO DS OAO Div Dir Ofc Fax: 703-605-7101
GN 03940.090E. Exhibit 4 provides sample memorandum language. GN 03940.090D. Exhibit 3 provides RCALJ addresses and the codes for the HOs they service, or refer to.
* Re-diary the case for 30 days for the return of the fee agreement determination.
* If you have not received the determination when the diary matures, fax the earlier e-mail or faxed message to the Office of the Chief ALJ (OCALJ) (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 information and the field office (FO) contact person's name and telephone number.
* When you receive the determination on the fee agreement, proceed as shown in GN 03940.046A.2. and GN 03940.055.
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.
F. Procedure - Fee Agreement Approved Incorrectly
1. Referral Procedures
If the ALJ or AAJ approved the fee agreement but you believe the approval is incorrect because the fee agreement either does not meet the requirements of the Act or an exception applies, take these actions:
a. Decision Maker Is ALJ
If the decision maker is an ALJ, prepare a memorandum addressed to the ALJ's RCALJ. See GN 03940.090F. Exhibit 5, “Memorandum to Regional Chief ALJ - Fee Agreement Approved Incorrectly - ALJ Hearing Level.”
Ensure that your memorandum contains a specific return address to the FO (including the unit number and fax number) and the name of the person who should receive it.
Email the memorandum to the RCALJ. See GN 03940.090D. Exhibit 3 or OHO Regional Office contacts for Fee Actions for the OHO regional office email.
b. Decision Maker Is AAJ
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.” The Deputy Chair will determine whether action is needed. Fax the above memorandum 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 (e.g., information on multiple fee agreements and/or representatives) to: Office of Disability Adjudication and Review Office of Appellate Operations Attorney Fee Branch, Suite 805 Fax: 703-605-7901 E-mail: ^DCARO OAO ATTY FEE BR Telephone: 703 605-7900
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.” The Deputy Chair will determine whether action is needed. Fax the above memorandum 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 (e.g., information on multiple fee agreements and/or representatives) to:Office of Appellate Operations Attorney Fee Branch, Suite 805 Fax: 703-605-7901 E-mail: ^DCARO OAO ATTY FEE BR Telephone: 703 605-7900
2. Diary
Diary the case for 45 days (or diary subject to local discretion) for OARO's action on the fee agreement.
3. Follow-Up Procedures
If you do not receive a memorandum from OARO regarding the action taken after the diary matures:
* Follow up with the RCALJ or the AFB, OARO.
* Explain that you have not received information regarding your request for OARO's action on the incorrectly approved fee agreement.
* Diary the case for 15 days.
* If you need to follow-up at the end of the second diary period, re-contact the RCALJ or the AFB by fax, e-mail or telephone.
4. Procedures After OARO Acts on Referral
If OARO reverses the fee agreement determination, OARO will fax a copy of the action to the servicing FO.
If OARO affirms the fee agreement determination, OARO will advise the FO by memorandum to process the representative's fee under the fee agreement process.
G. Procedure - Fee Agreement Disapproved
If the decision on the claim is favorable and the decision maker (Title XVI CR at the initial or reconsideration level, or the ALJ or AAJ, at the hearing or request for review level) disapproved the fee agreement, take no further action on the fee agreement.
Refer to MSOM BUSSR 002.014, Representative Fee Update Data (UFEE), for fee agreement disapproval coding procedures. Also, because the representative may file a fee petition, refer to GN 03930.030 Title XVI – Adjudicating Claims and Posteligibility Actions Involving Representatives Who May Petition.

POMS Reference

GN 03940.046: Title XVI - Field Office Processing of Fee Agreements on Favorably Decided Title XVI Only Claims