GN 02610: Title II/Title XVI (Windfall) Offset
TN 16 (09-95)
A. Policy
1. General
Effective July 1, 1991, the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990) provides that the amount to withhold from retroactive title II benefits toward the attorney's fee is calculated before reduction for title II offset. Further, we must deduct this amount of the fee from the retroactive title II benefits before the title II offset is applied. This applies to fee agreement and fee petition cases.
In some cases, the attorney may charge the beneficiary an additional fee based on past-due title XVI benefits after offset. Beginning February 28, 2005, an attorney or a qualified non-attorney may receive direct payment of a fee based on past-due Title XVI payments. This applies to fee agreements and fee petitions.
See GN 03940.000 and GN 03940.050 for explanation of the attorney fee agreements and amounts. See GN 03930.001 and GN 03930.010 for explanation of the fee petitions and amounts.
2. How This Affects Offset Computations
Under SSI income counting rules, the amount of an approved fee is not counted as income when determining the offset amount per SI 00830.100. Generally, the system will compute the offset amount taking into consideration the representative fee.
However, the FO must adjust the title II income for the fee amount before computing the offset if a manual offset computation is required and there is a fee agreement.
The PC must also request the FO to refigure the offset by adjusting the title II income for the fee amount before the PC applies offset (completes the second day action) if the offset amount computed automatically by the SSR is more than the retroactive title II benefits minus the representative fee.
B. Procedure
1. General
When the PC calls the FO to request a manual offset computation, it will inform the FO if there is a fee agreement or fee petition and give the FO the amount of the fee. The FO will adjust the title II income for the fee amount and use the adjusted amount in the offset computation. See GN 03940.050 for fee amounts in concurrent title II/title XVI claims with fee agreements. See GN 03930.001 and GN 03930.010 for fee amounts in concurrent Title II/Title XVI claims with fee petition.
If the FO recognizes the need for a manual computation because there is a 5W diary on the SSR, if will query the MBR. If there is a WIN of L or an entry in the LPDD field, or there is a representative’s name and address present on the SSR, the FO will contact the PC to obtain the amount of the approved fee. The PC will advise the FO if there is a fee agreement, and the amount of the approved fee.
If the fee amount is unknown, the PC will tell the FO to compute the offset using all the retroactive title II benefits. See MSOM BUSSR 002.016 for instructions. After the fee authorization is received, the FO will adjust the SSI payments according to SI 02006.200, SI 02006.202, and SI 02006.203.
2. Applying TItle XVI Offset
When title XVI offset applies, the FO will process the case in accordance with GN 02610.041 and SM 01320.040. The FO will adjust the title II income for the fee amount before it applies the offset if the fee is known (in fee agreement cases) per SI 02006.200B.2. and GN 03940.050.
3. Applying Title II Offset — Fee Petition Cases
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The PC will take the following action in fee petition cases:
| STEP | ACTION |
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1 |
Calculate the amount to be withheld from the title II PMA in anticipation of direct payment to the representative according to |
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2 |
Subtract the Step 1 amount from the retroactive title II benefits. |
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3 |
Compare the windfall offset amount (WOA) from the automated offset computation to the results of step 2. If the WOA is less than the results of step 2 then:
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If the WOA is greater than the results of step 2 then:
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4 |
Take the following action when the fee authorization is received:
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5 |
Determine if the WOA is less than the remainder of the retroactive title II benefits. If yes, process the offset action, subtract any SSI collectible overpayment - see SI 02220.021, and forward a copy of the fee authorization to the FO to process the adjustment of the title II income. Also, the FO must determine if any fee can be paid from Title XVI retroactive benefits. See GN 03940.050 for fee agreements and GN 03930.032 for fee petitions. Send the notice in NL 00703.813. Include paragraph 3816D. If there is a collectible overpayment deducted, use the notice in NL 00703.183. Add the appropriate offset language from the notice in NL 00703.813, following NL 00703.813B. Also use the appropriate attorney fee language. If no, telephone the FO and request a new offset computation considerating the representative’s fee. |
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6 |
Complete the offset action by subtracting the new offset amount furnished by the FO from the retroactive title II benefits. Subtract any SSI collectible overpayment - see SI 02220.021. Send the notice in NL 00703.813. Do not include paragraph 3816D. If there is a collectible overpayment deducted, use the notice in NL 00703.183. Add the appropriate offset language from the notice in NL 00703.813, following NL 00703.813B. Also use the appropriate attorney fee language in NL 00703.813. CAUTION: Whenever the FO is requested to compute a new offset amount per 5 above, do not send a copy of the fee authorization to the FO after the offset is applied because the adjustment of the title II income has already been done. In the notice of the offset action to the beneficiary, eliminate the instruction to go into the FO for a possible adjustment of SSI payments. |
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.
The FO will take the following actions in fee petition cases:
When the FO receives a copy of the HA-L530-U5 or the SSA-1560 from the PC and the offset has been applied, follow SI 02006.210 ff. to adjust the title II income for the approved representative fee and pay any SSI underpayment.
4. Applying Title II Offset — Fee Agreement Cases
Either the FO or the PC will have taken action to process the title II initial claim and sent a notice to the beneficiary and representative to allow them time to file a protest. (See GN 03940.001 for explanation of the fee agreement process.)
The PC will take the following action when the protest period expires and no protest is received:
| STEP | ACTION |
|---|---|
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1 |
Subtract the approved title II fee amount from the retroactive title II benefits. See GN 03930.050 through GN 03930.065 for direct payment to the representative. |
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2 |
Compare the WOA from the automated offset computation to the results of Step 1:
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The FO will take the following actions in fee agreement cases depending on the comparisons done in the PC.
Compute a new offset amount if the automated WOA is greater than the retroactive title II benefits minus the approved representative fees.
Adjust the title II income for SSI purposes according to SI 02006.210ff after the offset has been applied and the PC forwards a copy of the title II award notice containing the approved fee amount according to GN 03940.050. The notice will also explain that we recouped the collectible SSI overpayment.
C. References
GN 03940.001, explanation of the streamlined fee agreement process.
NL 00703.813, notice in title II offset cases for fee petition and fee agreement cases.
SI 02006.210B., adjusting title II income in cases involving representative fees.
GN 03930.065, GN 03930.080, PC notifies FO of athorized fees in concurrent claims situation.
GN 03940.050, FO procedures for determining fee in title II/title XVI fee agreement cases.
SI 02220.021 for recouping a SSI collectible overpayment from title II retroactive benefits.
NL 00703.183 for overpayment language.