TN 17 (03-05)

A. Introduction

In a title XVI couple's case, each member of the couple must establish whether he/she is blind, aged or disabled. In addition, because each member's eligibility depends on the other member's income/resources, the couple must meet the couple's income/resource requirements in order to be eligible for benefits. If SSA finds only one member of the couple eligible for benefits and approves that individual's representative's fee agreement, follow instructions in GN 03940.046 (SSI only) or GN 03940.050 (concurrent claims).

This POMS section pertains to fee agreement situations in which one of these situations is present:

• SSA finds the first member (EI) of the couple eligible and subsequently finds the second member (ES) eligible. ES's eligibility results in an increase in EI's benefits.

• SSA finds the first member ineligible due to an income/resource issue; and later finds the second member (ES) eligible. ES's eligibility results in EI's eligibility.

B. Policy

1. Fee Calculation

If EI is represented in connection with his/her individual claim and SSA issues a favorable decision, SSA will approve the fee agreement if all conditions are met and no exceptions apply, and use EI's past-due benefits to calculate EI's representative's fee. If EI was represented and SSA denied the claim, SSA will not act on the fee agreement.

If ES is represented in connection with his/her individual claim and SSA issues a favorable decision, SSA will approve the fee agreement if all conditions are met and no exceptions apply, and use ES's past-due benefits to calculate ES's representative's fee. In addition, regardless of whether EI signed ES's representative's fee agreement, if ES's representative's efforts result in:

• an increase in EI's benefits, or

• EI's eligibility because of the change in the income/resource requirement;

SSA will use EI's additional benefits in its calculation of ES's past-due benefits to determine ES's representative's fee. In this situation, ES's representative could be entitled to a fee of the lesser of the applicable specified dollar amount of the fee cap as indicated in GN 03940.003A.3. (e.g. $5,300 , $6,000) or 25 percent of this total (EI's additional benefits and ES's past-due benefits).

If ES's eligibility results in an increase in EI's benefits, SSA will:

• use the difference between the amount EI already received and the additional benefits he/she receives as a result of ES's eligibility (effective with the date of ES's eligibility); and

• add that amount to ES's past-due benefits amount to arrive at the total amount of past-due benefits SSA must use to authorize ES's representative's fee.

If ES's eligibility does not result in EI's eligibility or an increase in EI's benefits, ES's past-due benefits will be equal to the difference in the amount due the couple and the amount already paid to EI for the months included in ES's past-due benefits.

EXAMPLE: SSA paid EI the full individual federal benefit rate (FBR) of $674.00 for 04/10. ES appoints a representative and files for SSI. ES is found eligible and the couple is due the full couple FBR of $1011.00 for 04/10. SSA will only pay the difference of $337.00 to ES for 04/10. Therefore, SSA will only include $337.00 for 04/10 in its SSI past-due benefits calculation to determine ES's representative's fee, not 1/2 the couple's FBR.

NOTE: In the rare situation in which both members of the couple are represented in connection with their own individual claim, and are found eligible at the same time, SSA will use the past-due benefits that flow from each member's eligibility to calculate his/her own representative's fee. In this situation, each representative could be authorized the lesser of 25 percent of past-due benefits or the applicable specified dollar amount of the fee cap as indicated in GN 03940.003A.3., based on his/her own client's past-due benefits. It does not matter whether the couple individually contracted with the same or different representatives. However, if the couple contracted with the same representative and signed the same fee agreement, the maximum fee SSA could authorize to that representative would be the lesser of 25 percent of the couple's past-due benefits or the applicable specified dollar amount of the fee cap as indicated in GN 03940.003A.3.

2. Direct Payment of Authorized Fee

If SSA includes EI's additional past-due benefits in authorizing ES's representative's fee and if ES's representative is eligible for direct payment, SSA will withhold up to 25 percent of EI's additional past-due benefits for direct payment to the representative.

C. Procedure – Computing Past-Due Benefits

1. Title XVI Only

The appropriate decision maker approves or disapproves the fee agreement. If approved:

1. Determine the amount of the total monthly payment due the couple by examining the payment and computation segments on the SSID for each month in ES's retroactive period (i.e., through the month of effectuation).

2. Reduce the total payment amount by any benefits and/or payments that are not considered past-due benefits for representative fee purposes (see GN 03940.007B.).

3. Subtract the SSI payment that EI has already received from the couple payment amount for the corresponding months to determine if there are past-due benefits.

4. If the result of step c. equals zero (there are no past-due benefits), disapprove the fee agreement. If the result of step c. is greater than zero, authorize a fee equal to the least of:

   • 25 percent of the couple's SSI past-due benefits; or

   • the percentage of past-due benefits or the flat fee amount specified in the fee agreement (if the percentage is less than 25 percent of past-due benefits or is a flat fee less than the specified dollar amount of the fee cap as indicated in GN 03940.003A.3); or

   • the specified dollar amount of the fee cap as indicated in GN 03940.003A.3.

5. Prepare and issue the title XVI Fee Agreement Notice.

If you are the decision maker 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. Also see GN 03960.040 for information regarding filing administrative review.

2. Concurrent Title II and XVI

ES's representative's fee is the combined total of the title II portion of the fee (i.e., wage earner's and auxiliary's(ies'), if any), and the title XVI portion of the fee. Follow the steps below to process an approved fee agreement in concurrent titles II and XVI claims.

a. Step 1

If the title II portion of the fee amount is the specified dollar amount of the fee cap indicated in GN 03940.003A.3. (or equal to a flat fee amount laid out in the fee agreement, if different), go to Step 6.; otherwise, go to Step 2.

b. Step 2

Subtract the title II portion of the fee amount from the specified dollar amount of the fee cap indicated in GN 03940.003A.3. (or the flat fee amount laid out in the fee agreement, if different) to determine the maximum fee you can authorize for the title XVI portion of the fee.

c. Step 3

Determine the total benefits that would have been paid to the couple if title II had been paid first and when due (i.e., after a title XVI offset) . If the result is zero, go to Step 6. If the result is greater than zero, go to Step 4.

NOTE: Past-due benefits computations for couples that involve offset must be performed on a month-by-month basis. See GN 03940.052D.3. for a sample computation chart.

d. Step 4

Subtract the SSI payment that EI has already received for the corresponding months from the result in Step 3 to determine if there are past-due benefits. Go to Step 5.

NOTE: Additional benefits payable to EI as a result of ES's award of benefits are included in the past-due benefits and fee calculations for ES's claim.

e. Step 5

If the result of Step 4 equals zero, go to Step 6. If the result is greater than zero, authorize a fee that equals the least of:

• 25 percent of the SSI past-due benefits; or

• the percentage of past-due benefits or the flat fee amount specified in the agreement, if the percentage is less than 25 percent of past-due benefits or the maximum fee is a flat fee amount less than the specified dollar amount of the fee cap indicated in GN 03940.003A.3.; or

• the figure derived in Step 2.

f. Step 6

Prepare and issue the title XVI Fee Agreement Notice. Only include the title XVI fee. SSA would have already advised the claimant and the representative of the title II fee.

g. Step 7

Adjust the title II income per SI 02006.210 (i.e., subtract the total authorized fee from the retroactive title II benefits).

If you are the decision maker and believe a request for administrative review of the authorized fee is appropriate (see GN 03940.001E.), you must file the request within 15 days of the date of the notice. (Also see GN 03960.040 for information regarding filing administrative review.)

D. Examples

For all of the following examples assume that:

• the second member of the couple appointed a representative and signed a fee agreement;

• the decision maker approved the fee agreement; and

• the fee agreement provides for a fee equal to the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap indicated in GN 03940.003A.3.

1. The Amount of the Aged Individual's (AI's) SSI Payment Increases When the Disabled Spouse (DS) Becomes Eligible for SSI

Bob (AI) has been receiving title II and title XVI SSI benefits for several years. In 2009, Bob's title II benefits are $499.00 per month and his SSI payments are $195.00 per month. .

Bob's wife, Jane, files for SSI only on 03/07/09. Jane appoints a representative, who files a fee agreement. On 10/20/09, the Administrative Law Judge (ALJ) finds Jane disabled as of 03/07/09 and approves the representative’s fee agreement. After a PERC (pre-effectuation review contact), Jane receives her SSI retroactive payment on 11/22/09. Because of Jane's eligibility, Bob receives an additional title XVI retroactive payment for 04/09 - 11/09 (8 months).

Determine the representative's fee resulting from Jane's SSI eligibility by following steps a. through d. in GN 03940.052C.1. This is the fee SSA may authorize to the representative Jane appointed.

• The couple's total SSI benefits are $4,256.00, computed on the SSR as follows:

  $1,011.00   Couple FBR

   - $479.00  Countable Income (Bob's title II of $499.00 - $20.00)

   $532.00   Couple payment amount x 8 months = $4,256.00

• Bob has already received $1,560.00 ($195.00x 8) in SSI benefits for 04/09 -11/09.

   $4,256.00 (Couple's total benefits)

  -$1,560.00 (Amount Bob already received)

   $2,696.00   (Couple's actual past-due benefits amount)

• Because there are past-due benefits resulting from Jane's eligibility for SSI, and the fee agreement provided for a fee of the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap ( $6,000.00), the fee in this case is $674.00, or 25 percent of $2,696.00.

Jane's eligibility results in additional retroactive benefits to the couple, and SSA uses the couple's additional past-due benefits to calculate the representative's fee.

2. AI Not Eligible for SSI Unless SSA Approves DS's Claim

Jim, age 65, and his wife Mary, a disabled spouse age 60, file for SSI on 01/10/08. Jim already receives title II benefits of $605.00 per month. His title II benefit increases to $623.00 per month in 2009.

Mary is not insured or entitled to any title II benefits. Jim will not be eligible for SSI unless Mary's SSI claim is approved. Mary appoints a representative to assist with her title XVI claim, and the representative submits a fee agreement. On 09/10/09, the ALJ finds Mary disabled as of 01/10/08 and approves the representative’s fee agreement. Both Mary and Jim are now eligible for SSI and their retroactive SSI payments are issued on 10/25/09.

Determine the representative's fee based on Mary's fee agreement with her representative by following steps GN 03940.052.C.1.a. through GN 03940.052.C.1.d.:

• The couple's maximum potential benefits are $8,161.00 ($4,080.50 for Jim and $4,080.50 for Mary) in SSI benefits for 02/08 - 10/09, computed on the SSR as follows.

 $956.00  Couple Federal Benefit Rate (FBR) for 2008

 -585.00  Countable Income (Jim's title II of $605.00 - $20.00)

 $371.00  Couple Payment Amount for 02/08 - 12/08 ($371 x 11 = $4,081.00)

 $1,011.00  Couple FBR for 2009

 -603.00  Countable Income (Jim's title II of $623.00 - $20.00)

 $408.00  Couple Payment Amount for 01/09 -10/09 ($408 x 10 = $4,081.00)

Therefore, the past-due benefits are $4,081.00 + $4,080.00 = $8,161.00.

• All retroactive benefits are past-due benefits for representative fee purposes.

• Jim was not previously eligible for SSI benefits; therefore, there is nothing to subtract from the past-due benefits amount.

• Because there are past-due benefits and the fee agreement provided for a fee of the lesser of 25 percent of past-due benefits or the specified dollar amount of the fee cap indicated in GN 03940.003A.3, the fee in this case is $2,040.25 , or 25 percent of $8,161.00.

Mary's eligibility results in Jim's eligibility for SSI; therefore SSA uses the couple's past-due benefits to calculate Mary's representative's fee.

3. EI Already Eligible and ES Becomes Eligible for Both Title II and SSI Retroactive Benefits (No Representative Fee from SSI Because There Are No Past-due Benefits)

Nathan and Kate filed for SSI on 12/12/07. Kate also filed for title II benefits. Nathan's SSI claim was approved and he received his first SSI payment in 07/08. Nathan was represented and SSA authorized a fee to the representative he appointed as a result of an approved fee agreement. Nathan was paid the full FBR as an individual because Kate's initial claim was denied and the couple had no Federal countable income. He was paid $637.00 per month from 01/08 to 12/08, and $674 from 01/09 to 06/09.

On 06/02/09, the ALJ issued a favorable title II and title XVI decision finding Kate disabled as of 01/03/07. In June 06/09, Kate received her SSI retroactive payment of $5,850.00 (the difference between the couple's FBR and the individual FBR for 01/08 to 06/09). She received her first recurring SSI payment in July 2009.

Kate's title II waiting period was 02/07-06/07. She received her first monthly title II check in August 2009, a current monthly amount (CMA) of $358.00. SSA withheld title II retroactive benefits of $8,379.00 for the months of 07/07 - 06/09 (benefits that would have been paid in 08/07 - 07/09) pending windfall offset and attorney fee adjustment. Kate’s title II monthly benefit amount (MBA) rates are shown on the Master Beneficiary Record (MBR) as $337.00 for 7/07-11/07, $349.00 for 12/07-11/08, and $358.00 for 12/08 and continuing.

Determine the representative's fee based on Kate's fee agreement with her representative by following steps a. through e. in GN 03940.052C.2.:

• The representative fee based on title II past-due benefits is $2,094.75 according to the APPREP data line on the MBR. SSA may authorize total representative fees based on title II and title XVI past due benefits in an amount not to exceed the lesser of 25% of past due benefits or the specified dollar cap as indicated in GN 03940.003A.3.

• Determine Kate's SSI past-due benefits for the fee computation on a month-by-month basis. Per GN 03940.052C.2.c., determine the amount of title XVI benefits the couple would have received for each month included in Kate's retroactive payment, if Kate's retroactive title II benefits had been paid first and when due.

• Subtract the actual amount of SSI that SSA has already paid to Nathan for the same months.

See summary calculation in the table below:

$956.00 Couple FBR for 2008

 -$329.00 Kate's title II rate of $349.00 - 20.00

  *$627.00 Amount couple would have been due for each month 01/08 - 12/08

$1011.00 Couple FBR for 2009

 -$338.00 Kate's title II rate of $358.00 - 20.00

**$673.00 Amount couple would have been due for each month 01/09 - 06/09

• If the “Amount Couple Due” each month is MORE than the amount Nathan received that month, the difference is the SSI past-due benefits for that month. If the “Amount Couple Due” each month is LESS than the amount Nathan received each month, then there are no past-due benefits for that month. In this case, there are no past-due benefits. Therefore, we cannot authorize an additional fee to Kate's representative for services provided in connection with Kate's SSI claim.

4. AI Already Eligible and ES Becomes Eligible for Both Title II and SSI Retroactive Benefits. (Case Results in a Representative Fee from SSI Because There Are Past-due Benefits.)

Sam and Charlotte filed for SSI on 05/30/08. Charlotte also filed for title II benefits. Charlotte appointed a representative, who submitted a fee agreement. The fee agreement called for a fee of the lesser of 25% of past-due benefits, or the specified dollar cap of $6,000.00. Sam's SSI claim was approved and he began receiving SSI payments in 06/08. He was paid the full FBR for an individual for 06/08 - 08/09 because Charlotte's initial claim was denied.

In July 2009, the ALJ issued a favorable title II and title XVI decision finding Charlotte disabled as of 02/10/08, and approved the fee agreement. Charlotte received her retroactive SSI payment of $5,886.00 in August 2009 (the difference between the couple's FBR and the individual's FBR). Charlotte's title II waiting period was 03/08 - 07/08. She received her first monthly title II check in September 2009, a CMA of $509.00. SSA withheld title II retroactive benefits of $6,064.00 for the months of 08/08 - 07/09 (benefits that would have been paid in 09/08 - 08/09) pending windfall offset and attorney fee adjustment. Charlotte's title II MBA rates are shown on the MBR as $498.00 for 08/08-11/08, and $509.00 for 12/08 and continuing.

Determine the representative's fee based on Charlotte's fee agreement with her representative by following with steps a. through e. in GN 03940.052C.2.:

• The representative fee based on title II past-due benefits is $1,516.00 according to the amount on the APPREP data line on the MBR. Based on the fee agreement between Charlotte and her representative, and on the statutory limits outlined in GN 03940.003A.3., SSA may authorize total representative fees (based on title II and title XVI past due benefits) in an amount not to exceed the lesser of 25% of past due benefits or $6,000.00.

• Determine Charlotte's SSI past-due benefits for the fee computation. Per GN 03940.052C.2.c.,, determine the amount the couple would have received for each month included in Charlotte's retroactive payment, if Charlotte's retroactive title II benefits had been paid first and when due.

• Subtract the actual amount of SSI that Sam has already been paid for the same months.

See summary calculation in the table below.

$956.00 Couple FBR for 2008

 - 0.00 No title II retro due for 06/08 - 10/08; no countable income

*$956.00 Amount couple due for 6/08 - 10/08

$956.00 Couple FBR for 2008

- 478.00 Charlotte's title II rate of $498.00 - $20.00

**$478.00 Amount couple would have been due for 11/08 - 12/08

$1011.00 Couple FBR for 2009

 - 489.00 Charlotte's title II rate of $509.00 - $20.00

***$522.00 Amount couple would have been due for 01/09 - 08/09

• If the “Amount Couple Due” for a month is MORE than what Sam received for that month, the difference is the SSI past-due benefit for that month. If the “Amount Couple Due” for a month is LESS than what Sam received for that month, then there are no past-due benefits for that month. Offset any negative amount for a month against any additional amounts due for other months in the withholding period to arrive at the past-due benefits. In this case, there are past-due benefits of $61.00.

• Authorize a fee that is the lesser of:

  • 25 percent of the SSI past-due benefits (25 percent of $61.00 is $15.25)

    OR

  • The dollar cap of $6,000.00. To calculate the remaining representative fee SSA could authorize from title XVI past-due benefits based on the dollar cap of $6,000.00, subtract the title II fee already authorized from the dollar cap of $6,000.00 ($6,000.00 - $1,516.00= $4,484.00);

  Since $15.25 is less than $4,484.00, SSA will authorize a fee of $15.25 based on title XVI past-due benefits.

• Prepare and issue the SSI Fee Agreement Notice authorizing a title XVI fee of $15.25.

E. Procedure – Withholding And Making Direct Payment

When SSA includes EI's additional past-due benefits in calculating ES's representative's fee, and when ES's representative is eligible for direct payment of the authorized fee, the claims representative must manually:

• calculate and withhold EI's past-due benefits,

• make direct payment to the representative from EI's additional past-due benefits, and

• issue fee notice(s) to EI.

Follow the procedures in GN 03940.052C. and the Examples in GN 03940.052D. to calculate EI's past-due benefits to include in the past-due benefits for fee purposes.

To make direct payment to the representative from EI's past-due benefits, take the following actions:

• Input a U TAC to withhold EI's past-due benefits.

• Input an A-OTP to pay EI the difference between EI's additional past-due benefits and 25 percent of the additional past-due benefits or the amount to be paid to the representative, if known.

• On the next day, A-OTP via the UPOF screen in MSSICS (see MSOM BUSSR 003.025 ) the amount payable to the representative from EI's past-due benefits. (If ES filed concurrent titles II and XVI claims, query the SPS to determine the total fee authorized based on ES's title II and title XVI past-due benefits. Use that sum in determining whether to authorize and pay an additional fee amount based on EI's past-due benefits.)

• Code the user fee, if any, on the UPOF. Obtain a Single Payment System query to determine if the $75 fee cap was reached when SSA made direct payment to the representative from ES's past-due benefits.

• Send a manual fee notice to EI, ES and the representative. Notice language is in the Document Processing System (DPS) General/Fee section.

• Remove the U TAC. This releases any balance of withheld past-due benefits to EI.

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 .