REPRESENTATIVE AND FEE REGULATIONS Flashcards
AUTHORIZED REPRESENTATIVE:
A disability advocate is an example of an authorized representative. SSA regulations permit a disability advocate to perform all actions under the law associated with the representation of a disability claim. An authorized representative can perform the following duties on behalf of a claimant:
- Accompany claimant to SSA interviews, and hearings.
- Acquire, request, and review medical records associated with the claim.
- Request and review information from claimant’s Social Security file.
- Request appeals, correspond, submit arguments, and submit complaints on behalf of a client.
- Assist both the claimant and his witnesses in preparation for hearings.
- Present a case at at hearing and question witnesses.
- Represent cases from the Initial to the Appeal Council level.
A REPRESENTIVE MAY NOT:
- Manufacture evidence in a case except under special circumstances.
- Sign documents on behalf of a claimant
- Mislead SSA in any way.
SSA will accept an application signed by someone other than the claimant. Most often, a close relative’s signature is acceptable. This is especially true if the claimant is mentally or physically unable to sign forms or make rational decisions.
REPRESENTATIVE QUALIFICATIONS:
- Minimum High school diploma
- No felony convictions.
- Be of good character and reputation
- Possess the knowledge required to render valuable service to the client. (understand the disability process._
REPRESENTATIVE PAYEE:
A representative payee is a person (usually a family member) who SSA authorizes to handle the financial aspects of the claimant’s benefits. A representative payee is not necessarily the same as the authorized representative.
A. INTRODUCTION TO REPRESENTATION
The Social Security Act directs the Commissioner to authorize the fee that a duly appointed representative may charge and collect for services provided to a claimant in proceedings before the Social Security Administration (SSA).
There are two alternatives, mutually exclusive processes by which a representative may seek SSA’s authorization for any fee they want to charge and collect:
- The fee agreement (contract) process
- The fee petition process.
” If a representative knowingly charges, collects, retains, or makes any arrangement to charge, collect, or retain, from any source, directly or indirectly, any fee for representational services in violation of applicable law or regulation, the Commissioner may suspend or prohibit the representative from further practice before the Agency.”
B. FEE AUTHORIZATION PROCESS
The representative generally selects which of the two fee authorization processes to use. To use the fee agreement process, the representative must file a fee agreement before the date SSA makes the first favorable determination. If the representative does not file an agreement before that date, SSA presumes that the representative will file a fee petition or waiver of fee.
If a representative elects to use the fee agreement process, but SSA does not approve the agreement, either because it does not meet the statutory conditions or an exception applies. In this case, the representative must file a fee petition if they want to charge and collect a fee.
- Fee Agreement:
Under the fee agreement process, SSA authorizes a fee based on a fee agreement (contract) between the claimant and the representative. A fee agreement is a written statement that the claimant and their appointed representative sign. Amon other issues, the agreement specifies the fee the representative expects to charge and collect.
SSA will not approve a fee agreement submitted after the date SSA makes the first favorable determination on a claim that the representative worked toward achieving. For claims at the initial or reconsideration level, the date of the notice to the claimant is the controlling date. For claims decided by the Office of Disability Adjudication and Review, the date of the Administrative Law Judge (ALJ) or Appeals Council (AC) decision is controlling.
A fee agreement submitted to SSA may remain in effect throughout the administrative appeals process and during the administrative proceeding following a court remand.
When SSA issues a favorable determination or decision, it will approve an agreement signed by the claimant and the representative if the agreement meets the statutory conditions of the Social Security Act and no exceptions apply.
If SSA approves the fee agreement, it will authorize a fee based on the approved agreement in the course of effectuating the favorable determination or decision. If no one requests an administrative review, the fee specified in the agreement is the maximum the representative may charge and collect.
- Fee Petition:
A fee petition is a written statement signed by the claimant and the representative requesting the representative’s fee. The representative petitions for a fee after their services in the case have ended. Based on the petition, SSA authorizes a “reasonable” fee for the specific services provided.
C. INFORMING REPRESENTATIVES OF FEE REGULATIONS:
If the representative has not submitted a fee agreement and has not waived the right to charge a fee, the hearing office (HO) staff must provide them with Form SSA-1560-U4 (Petition to Obtain Approval of a Fee for Representing a Claimant.)
The HO staff may provide Form SSA-1560-U4 to the representative at any time while the claim is pending or forward it to the representative with their copy of the ALJ’s decision. If the representative indicates an interest in obtaining the form from the internet, the HO staff will:
- Refer the representative to www.Socialsecurity.gov/online/ssa-1560.pdf, and
- Document the file to this effect. In such a situation, the HO staff doesn’t need to mail the SSA-1560 to the representative.
When the AC issues a favorable or partially favorable decision, the Office of Appellate Operations staff provides the representative with Form SSA-1560-U4.
D. ADMINISTRATIVE REVIEW:
When a claimant, affected auxiliary beneficiary, or representative disagrees with SSA’s action on the fee agreement or fee petition, they may request an administrative review of that action. In the fee agreement process, the decision-maker who approved the agreement also may request an administrative review of the amount of the authorized fee under certain circumstances.
FEE AUTHORIZATION:
Fee authorization is the means by which SSA approves the amount of the fee a claimant’s representative may charge and collect for services provided to a claimant in proceedings before SSA.
A. Who May Charge A Fee:
Only the claimant’s duly appointed representative may charge or collect a fee for services they provided in a matter before the Social Security Administration (SSA).
B. Multiple Representatives:
If a claimant appoints more than one representative and the representatives are: Associated in a firm, partnership, or legal corporation:
– Fee agreement cases: those representatives must sign a single fee agreement unless the representative who did not sign the fee agreement agree waived charging an collecting a fee.
– Fee petition cases: each duly appointed individual must file a separate fee petition for the services they performed.
Not member of a single firm, partnership, or legal corporation:
– The fee agreement is a single individual appointed by the claimant to represent the case.
– Fee petition cases: The dully appointed individual must file a fee petition for the services they performed.
A. Payment y Non-Profit Organization or Government Agency
A prime purpose of the Social Security Administration’s (SSA’s) statutory authority to authorize fees for representation is to protect claimants against unreasonable fees. When a representative provides services to a claimant and a nonprofit organization or government agency pays for those services, the risk or unreasonable fees is eliminated.
B. Out-of-pocket Expenses:
SSA is not involved in authorizing the amount of out-of-pocket expenses a representative collects. Out-of-pocket expenses are expenses a representative incurs, for which they have been paid or expects to be paid. Out-of-pocket expenses include but are not limited to the cost of obtaining copies of doctor or hospital reports and a birth and death certificate. Therefore, the fee SSA authorizes does not include payment for out-of-pocket expenses.
C. Court Proceedings:
SSA does not consider services in proceedings before State or Federal courts (even if the State court action was to establish a relationship or death) to be a proceeding before SSA; therefore, the fee authorization provisions do not apply to court proceedings.
D. Legal Guardian or Other Court Appointed Representatives:
A legal guardian, committee, conservator, or other State court-appointed representative (hereinafter “legal guardian”) may ask the court to approve a fee for services provided in connection with proceedings before SSA. Therefore, f the court orders a fee, SSA’s fee authorization is not required.
– If a legal guardian asks SSA for information regarding fees, SSA should advise the individual first to ask the State court to approve a fee for all services, including those provided in connection with proceedings before SSA.
– If a legal guardian files a fee petition, SSA must advise the legal guardian that SSA will not act on the fee request until the State court has acted.
E. Medicare Part A land Part B Cases:
Fee agreement Process Not Applicable to Medicare Cases. The fee agreement process cannot apply in Medicare cases because there are no “past-due benefits” from which to calculate a Rep fee.
Trust or Escrow Accounts:
Pursuant to Social Security Ruling SSR 82-39, a representative may establish a trust or escrow account to ensure the payment of all or part of their fee. provided the following conditions are met:
– The claimant willingly enter into the trust or escrow agreement and willingly deposits the money in the trust or escrow account.
– Non of the money in the account is paid to the representative unless the (SSA) has authorized a fee.
– The representative promptly returns to the claimant any funds in the account in excess of the authorized fee.
Accordingly, a representative may establish a general trust or escrow account for funds that they receive from one or more claimants.
DIRECT PAYMENT:
Direct payment means SSA’s payment of all or part of an authorized fee directly to the representative.. SSA makes this payment from benefits SSA withholds from past-due benefits.
REPRESENTAITVE ELIGIBLE TO RECEIVE DIRECT FEE PAYMENT:
A representative who is eligible to receive direct payment of the fee is either
- An attorney
- A non-attorney whom SSA has determined meets the prerequisites for participation in the extended fee withholding procedures to non-attorney representatives.
REPRESENTATIVE INELIGIBLE FOR DIRECT PAYMENT:
A representative ineligible for direct fee payment is:
- A non-attorney whom SSA has not determined is eligible for direct fee payment.
- A representative who has withdrawn or been discharged from representing a claimant.
DIRECT PAYMENT TO REPRESENTATIVES - TITLE II CASES:
The Social Security Administration (SSA) withholds (up to) 25 percent of a claimant’s total benefit amount to pay the direct fee.
SSA must make direct payment of an authorized fee to the extent possible based on the available past-due benefits to a non-attorney representative if:
- The representative and the claimant have entered into an appointment of representative agreement after February 28, 2005.
- SSA has determined that the non-attorney is eligible to receive direct payment of fees; and
- The representative has not waived the fee.
The following notification guidelines apply when a claimant is represented by a non-attorney who is eligible for direct payment.
- Fee Agreement Cases:
- The amount that SSA will certify for direct payment to a representative is the amount authorized as a result of the approved fee agreement. - Fee Petition Cases:
- In fee petition cases, the amount that SSA will certify for dirct payment to representative is the lesser of the authorized fee or 25 percent of the claimant’s past-due benefits. - Assessment of Representatives:
- Sections 206(d) and 1631(d)(2) of the Social Security Act require SSA to charge an assessment (or “user fee”) not to exceed 6.3. percent of the amount SSA certifies for direct payment to a representative, to recover SSA’s full cost for determining and certifying representative fees.
DIRECT PAYMENT TO REPRESENTATIVES – TITLE XVI CASES:
- SSA withholds (up to ) 25 percent of a Claimant’s title XVI past-due benefits for possible direct payment. SSA must make direct payment of an authorized fee to the extent possible based on the available past-due benefits to a non-attorney representative.
ERRONEOUS DIRECT PAYMENT AND ASSESSMENT:
On occasion, SSA pays an authorized fee and imposes the user fee assessment on the direct payment amount despite a representative’s waiver of direct payment. In this circumstance, SSA will not refund the assessment to the claimant.
Note: If the representative’s only complaint pertains to the “fairness” of the user fee assessment, do not forward the correspondence to the PC. Advise the representative that sections 206(d) and 1631(d)(2) of the Social Security At require the Commissioner to impose the assessment.
The PC will determine if SSA will refund the assessment to the claimant. If SSA refunds the assessment to the claimant, it is the representative’s responsibility to collect the assessment amount from the claimant.
