TN 13 (02-05)

A. Policy - General

1. Adjustments After the Date SSA Authorizes a Fee

After the date SSA notifies the claimant and representative of the authorized fee amount, any increase or decrease in the amount of past-due benefits will not change:

• the past-due benefits withholding amount; or

• the authorized fee, unless the following exception, and/or one of the situations in GN 03920.040B. applies.

EXCEPTION: SSA can adjust the past-due benefits amount after it notifies the representative of the authorized fee if there was an input coding error (e.g., the benefit authorizer (BA) or benefit technical examiner (BTE) transposes the benefit amount provided by the claims representative (CR) or claims authorizer (CA)). However, SSA cannot adjust the past-due benefit withholding amount because of the receipt of new information after authorization of the fee (e.g., after authorization of the fee, SSA receives earnings information that affects the original PIA and benefit computation).

2. Adjustments Before the Date SSA Authorizes a Fee

Before the date SSA notifies the claimant and representative of the authorized fee amount, SSA can adjust the withheld amount under both the fee petition and fee agreement processes, and the fee under the fee agreement process.

B. Policy - Fee agreement process

Under the fee agreement process, increases or decreases in the amount of past-due benefits after SSA has authorized the representative's fee will not affect the amount of the representative's fee under the approved agreement unless:

• SSA inadvertently authorized a representative's fee before resolving deferred development in a partially adjudicated claim (see GN 03940.036B.) (e.g., by using unverified WC or public disability benefit offset amounts to compute the past-due benefits amount, instead of using neutral language pending verification of the WC and public disability offset benefit amount to determine the past-due benefits amount and authorize the fee); or

• SSA authorized a fee under the fee agreement process when making a partially favorable decision (see GN 03940.004); or

• the claimant filed an appeal that changed the past-due benefits amount; or

• the claimant, representative, or the decision maker requests administrative review.

NOTE: If SSA is withholding past-due benefits pending a determination on a request for administrative review, and there is a change in the amount of past-due benefits, SSA must recalculate the withheld amount. Public Law 106-170 eliminated the delay in certifying direct payment during the statutorily-prescribed 15-day period for requesting administrative review in the fee agreement process; therefore, situations in which SSA receives the request for administrative review before releasing direct payment should be infrequent. However, if it occurs, continue to withhold. See the policy statement regarding a parallel situation in the fee petition process at GN 03930.060C.3.

NOTE: For policy on fee agreements involving a vacated decision, refer to GN 03940.001A.

C. Policy - Authorization date

Under both the fee petition and fee agreement processes, the authorization date is the date SSA notifies the claimant and representative of the authorized fee amount.

D. Policy - Past-due benefits decreased - representative paid

If the processing center (PC) in a title II claim or the field office (FO) in a title XVI claim certified direct payment of or paid the authorized fee and later SSA decreases the claimant's past-due benefits amount, SSA will not ask the representative to make a refund. This is because SSA did not overpay the representative: he /she received the fee amount SSA authorized. The PC or FO should proceed to GN 03920.040D.1. or GN 03920.040D.2., as appropriate.

• If SSA decreases the claimant's past-due benefits amount because of one of the exceptions indicated in GN 03920.040A.1. or GN 03920.040B., the PC in a title II or concurrent titles II and XVI claims, or the FO in a title XVI only claim will request a refund from the representative (see GN 03970.025).

• If SSA overpaid the representative for a reason other than for an adjustment to the past-due benefits amount (e.g., duplicate checks), the PC in a title II only claim or concurrent titles II and XVI claims, or the FO in a title XVI only claim will request a refund from the representative.

1. PC or FO Has Not Released the Remaining Past-Due Benefits

If the PC or FO certified direct payment of or paid the authorized fee to the representative but has not released the remaining past-due benefits to the claimant, the component responsible for the direct payment (i.e., the PC or FO) must reduce those benefits by the overpaid amount. For example, if the remaining title II past-due benefits are $500 and the overpaid amount is $200, the PC will subtract the $200 from the $500 and pay the claimant $300.

If the overpaid amount exceeds the amount of past-due benefits remaining, the component that made direct payment (i.e., the PC or FO) must initiate recovery of the overpayment from the claimant.

2. PC or FO Released All Past-Due Benefits

If the PC or FO certified direct payment of or paid the authorized fee to the representative and released the remaining past-due benefits to the claimant, the component that released the benefits must initiate recovery of the overpayment from the claimant.

E. Examples

1. Adjustment Does Not Change the Amount Withheld - Fee Agreement Process

Situation:

• On February 7, SSA issues a title II award notice stating that it approved the fee agreement and that the authorized fee is $2,500. None of the parties to the fee agreement requests administrative review.

• On March 20, SSA issues a notice advising the claimant of a decrease in his benefits because he received $4,000 of WC of which SSA had not previously been aware.

Discussion:

Because the WC offset occurred after the date SSA approved the fee agreement and authorized the fee, SSA must certify $2,500 for direct payment to the attorney. SSA will not revise the authorized fee amount.

2. Adjustment Changes the Amount Withheld - Fee Agreement Process

Situation:

• On February 5, an ALJ issued a favorable title II decision and approved the fee agreement between the claimant and representative who is eligible for direct payment.

• On March 18, a CA determined that the WC offset amount was $543 per month for 16 months during the past-due benefit period.

• On April 3, SSA issued an award notice to the claimant and representative indicating that the fee agreement was approved; that the claimant's past-due benefits were $436; that the authorized fee was $109; that the parties have a right to request administrative review; and that SSA withheld $109 to pay the representative's fee.

• On April 28, the PC discovered an input coding error in the WC offset amount; instead of $543, the PC input $643.

Discussion:

Because the PC made an input coding error, SSA must recalculate the claimant's past-due benefits using the correct WC offset amount, withhold 25 percent of the past-due benefits, and notify the claimant, representative, and decisionmaker. If SSA does not receive a request for administrative review, it will certify direct payment of the authorized fee to the representative.