TN 17 (03-05)

A. Policy - Purpose

Under the fee agreement process, when SSA approves a fee agreement, SSA uses an eligible individual’s and the otherwise unrepresented eligible spouse’s Title XVI past-due benefits to calculate:

• A fee for services a representative provided in pursuing the eligible individual's benefit rights in proceedings before SSA. (GN 03920.031 defines title XVI past-due benefits.)

• The amount of benefits to withhold for direct payment to the representative when

  • SSA effectuates the favorable administrative determination or decision on or after February 28, 2005; and

  • SSA determines that the representative is eligible for direct payment before the date SSA effectuates the favorable determination or decision in a title XVI only claim, or in concurrent Titles II and XVI claims, before the date SSA effectuates the decision on the first claim processed.

  See GN 03920.017, Payment of Representative’s Fee, for the definition of “representative eligible to receive direct fee payment” and policy on direct payment to representatives in title XVI cases.

NOTE: In order for SSA to make direct fee payment to a non-attorney representative whom SSA has determined is eligible for direct payment, the claimant and representative must have signed the written appointment of representative or a supplemental appointment document on or after February 28, 2005. See GN 03920.018 Direct Payment To Non-Attorney Representatives, for rules for supplemental appointments and policy on the payment of non-attorney representatives.

B. Policy - Title XVI Past-Due Benefits For Calculating Fees

1. Title XVI Only

In a title XVI only claim, "past-due benefits" are the total amount of Federal and Federally administered State payments accumulated because of a favorable decision through the month of effectuation (GN 03920.030D. defines "month of effectuation"), including any amounts sent to a State/subdivision under an interim assistance reimbursement (IAR) agreement, minus any benefits listed in GN 03920.031C. Refer to GN 03940.052 for guidance on processing fee agreements in title XVI couples cases.

2. Concurrent Titles II and XVI

The past-due benefits amount in the title XVI portion of concurrent claims is the same as the amount in title XVI only claims, except for the purposes of calculating fees for representation, SSA reduces the title XVI past-due benefits for windfall offset for the same period, regardless of whether the actual offset, as provided under § 1127 of the Act, reduces the title II or title XVI benefits. (See GN 02610.053 for an explanation of offset and representative's fees. How to calculate the title XVI past-due benefits in concurrent cases is explained in GN 03940.050B. Also, see GN 03920.031B., Policy - Title XVI Past-Due Benefits.)

3. Partially Favorable Decisions

SSA calculates past-due benefits and authorizes a fee under the fee agreement process using the beginning and ending periods shown in the partially favorable decision. If on appeal SSA makes a more favorable or less favorable decision, SSA will adjust the past-due benefits for purposes of authorizing a fee under the fee agreement process.

C. Policy - Title XVI - Past-Due Benefits Payable to the Claimant

The Act requires a distinction between the "past-due benefits" amount for authorizing the fee under the fee agreement and the "past-due benefits payable" amount for notice purposes. The terms are not interchangeable.

The first check SSA sends to a claimant may include payment(s) for months after the month of effectuation and may include benefits or payments excluded from the definition of past-due benefits (see GN 03940.007B.). In these situations, the "past-due benefits" amount for calculating the fee under the fee agreement will differ from the "past-due benefits payable" amount (i.e., the amount of the retroactive payment the claimant receives).

The following priority of payment order applies in title XVI claims, and the title XVI portion of concurrent titles II and XVI claims, when there are past-due benefits and direct payment of a representative’s fee:

• SSA reimburses the State if interim assistance reimbursement (IAR) is involved.

• SSA pays the representative’s fee, to the extent that the withheld past-due benefits permit, if the claimant’s appointed representative is eligible for direct payment and he/she has not waived a fee or direct payment. In concurrent titles II and XVI claims, SSA calculates the 25 percent amount available for possible direct payment after determining the amount of title XVI past-due benefits had the title II benefits been paid timely. (See GN 02610.053, How to Process Title II Offset Cases When an Attorney Fee Is Involved – Action to Apply Offset.)

• If there is an outstanding prior overpayment, SSA recovers the overpayment to the extent possible.

• SSA pays any remaining past-due benefits to the claimant.

See GN 03920.033 for policy on title XVI past-due benefits payable in specific situations and an example. Also, see SI 02101.001, SSI Underpayment Definitions and General Rules; SI 02101.002, SSI Underpayment Due – Individual Alive; and SI 02101.003, SSI Underpayment Due – Individual Deceased – General.