TN 14 (03-98)

A. Policy

1. Identification and Control of Cases

1. In September 1995, SSA changed its policy on windfall offset procedures as a result of several court cases. It is now administration policy to pay SSI benefits first and perform a title II offset in all offset cases. This procedure protects Medicaid eligibility for the period the applications were pending. (See GN 02610.018.) Therefore, title XVI offset cases should not occur except as a result of a prior error in identification/processing of offset situations.

2. Process all other affected cases brought to the FO's attention by a claimant, attorney, nonattorney representative, regional office, Litigation Staff, or other SSA component.

3. If asked about any representative fee which was previously withheld when the title II claim was processed or any fees authorized, treat such a question or complaint in a case with SSI involvement as a request for recomputation of the title II income and SSI payment. Develop for the amount of authorized fee and process the information according to these sections. If there is disagreement with SSA's fee determination, see GN 03950.001ff in fee petition cases and GN 03960.001 ff. in fee agreement cases for necessary action.

4. Location of representative information: see SI 02006.200B.1.

2. Importance of Notices

Make sure that both the claimant and the attorney or nonattorney representative receive notices explaining the right to recomputation of the title II income and the results of the action.

B. Procedure - Title XVI Offset Cases

NOTE: Under the 9W diary procedure, title XVI offset should seldom occur. See GN 02610.018A.1. The notice language is retained for historical purposes.

1. How to Process Title XVI Offset

Trigger Title XVI offset per SM 01320.016 when the recipient is not eligible for SSI for any month in the windfall period for reasons other than use of the title II retroactive benefits in the computation. When title II benefits are released erroneously without applying windfall offset, title XVI offset may be applied by posting the retroactive benefits as if paid timely. If the claimant protests the loss of Medicaid, follow GN 02610.065B.4.a. to issue an A-OTP of $1.00 for each month in which title II completely offsets title XVI. Follow regional instructions regarding Medicaid certification. Post an N TAC to resolve any of the overpayments caused by the A-OTP that have not been processed by the system. See SI 02260.030 for guidelines for the system process and tolerances.

2. Identifying Title XVI Offset Cases

A title XVI offset case is one which contains type “G” income in the UMIH field. This means that title II income has been posted and used in the computation as if it were paid when due rather than retroactively. As noted above, since the inception of the 9W diary procedure, title XVI offset cases will occur rarely and only as a result of procedural errors or special circumstances.

3. Notice for Title XVI Offset

In the offset processing, suppress the systems-generated notice and prepare the required initial determination notices to both the claimant and the representative. Include the following paragraphs in each of the notices.

“You have monthly income which must be considered in figuring your payment as follows:

You will soon get social security money for past months. When we figure your SSI payment, we count this social security money as if we paid it to you during each of the months it was due. You were due $$$.00 a month for MM/YY through MM/YY.

Since a lawyer represents you in your social security claim, the amounts we used above for your social security may change. When fees to pay your lawyer are approved, we will subtract these fees from your social security income for any month. Then you may get more supplemental security income.

Your local social security office will be told when fees for your lawyer are approved, but you may be told sooner. Please contact your local social security office when you get the letter about approved legal fees. This may help us decide sooner if you should get more supplemental security income. If you go to your office, please bring the letter about the legal fees with you.”

When sending the notice to a representative payee, use the claimant's name and subsequently the appropriate pronouns (she/he) instead of you, and her or his instead of your above.

In the second paragraph, enter the amount or amounts and the month(s) and year(s) applicable for the retroactive title II benefits due. In the last sentence, if “you” is changed, correct “were” to “was.”

In the third paragraph, do not use the word “more” in the last sentence if the notice used is SSA-L8030-U2 (SSI Notice of Disapproved Claim). Also, delete “more” in the fourth paragraph.

NOTE: Follow the special notice procedures in NL 01001.010 if the notice will be sent to a claimant, beneficiary, or representative payee who alleges being blind or visually impaired.

C. Procedure - Title II Offset Cases

1. Identifying Title II Offset Cases

a. Affected Title II Offset Cases

After 9/7/95, in general, offset cases should be title II offsets. See SI 02006.200B.1. to determine if a representative is involved.

b. Review of Cases and FO Title II Records

Review such SSI cases and the FO's records of the title II claim to see if the claimant was represented by an attorney or nonattorney. Check to see if a fee agreement has been filed or, if not, if a petition for a fee is likely because a fee was not waived.

c. ODIO or PSC Calls for FO Help With Title II Offset Computation

Some cases not yet identified can be identified if ODIO or PSC calls. Ask if title II benefits will be withheld toward a representative.

Also, if the title II offset amount is manually computed, prepare a copy of the original worksheets sent to the PSC or ODIO as required by GN 02610.035.

File the copy in the SSI case file. Do the same if there is a written exchange of information about the offset amount computations. These worksheets may help later on when the title II income is adjusted.

d. Cases That Review May Not Identify

See SI 02006.205C.1.c. above.

2. Case Control for Attorney Fee Authorizations

If a representative fee for the title II claim is possible, diary the SSI case and control the SSI file pending fee authorization. This also applies to SSI cases in suspense because of excess countable income caused by the continuing title II benefits.

3. PSC or ODIO Notice

When a PSC or ODIO processes title II offset and withholds retroactive benefits toward an expected attorney fee, the notice includes paragraph 970. It explains the possible effect of legal fees and advises the claimant and representative to contact the FO when they learn of the authorized fee. (See NL 00708.100.)

4. Diary Matures

Follow up as appropriate and process recomputation when fee information is available.

D. Procedure - Development of Offset Data

1. All Needed Data Available in SSI File and Queries

When notified of the authorized fees in offset cases in which the FO has all the needed data about SSI and title II, refer to SI 02006.210B. for step-by-step processing.

2. Data on Title II Incomplete

If the needed information about the title II case is only available from a case file not in the FO, request the data from the PSC or ODIO. Diary for a reply, and follow up until the information is received. When these data are complete, refer to SI 02006.210B. for step-by-step processing instructions.