Last Update: 2/25/05 (Transmittal I-1-48)
The Social Security Administration (SSA) assumes that a representative will charge a fee for his/her services. Occasionally, a representative will provide services without expecting payment from either a claimant or any other source (i.e., waive the right to charge and collect a fee). Also, a representative who is eligible for direct fee payment may charge a fee, but waive the right to direct payment of his/her fee from title II and/or title XVI past-due benefits.
The representative's written statement that he/she waives the right to charge and collect a fee constitutes a waiver of any fees for services in the case, whether charged to or collected from the claimant or a third party, such as an insurance company. It does not constitute a transfer or assignment of the right to charge and collect a fee based on those services to another person.
If a representative waives his/her fee and later decides to charge and collect a fee, the representative must obtain the claimant's concurrence and SSA's authorization.
If a representative who is eligible for direct fee payment states that he/she will not charge or collect a fee from any source, or does not expect direct payment of a fee from title II and/or title XVI past-due benefits, the representative must:
submit a written statement that clearly and unequivocally states he/she is waiving the fee or direct payment of the fee; or
complete section III or IV (optional use) of form SSA-1696-U4 (Appointment of Representative), as appropriate; or
sign either the “Waiver of Fee” or “Waiver of Direct Payment” section of the SSA-L1697-U3 (Notice to Representative of Claimant Before the Social Security Administration), as appropriate.
If the representative who is eligible for direct fee payment works for a legal services organization or other organization that routinely waives the fee, a fee waiver statement is not necessary. Contact the representative by telephone and determine if he/she wishes to waive the fee. Document the call with a report of contact and include the report of contact in the claims file.
When a representative completes Part III of the SSA-1696-U4, Waiver of Fee, or the Waiver of Fee option on the SSA-1697-U3, it constitutes a waiver of any fee for services, whether charged to or collected from the claimant or a third party.
If the representative submits any document that contradicts the waiver statement (e.g., the representative waives a fee and also submits a fee agreement), it is necessary to determine and document the representative's actual intent and the claimant's concurrence, if appropriate.
Refer to POMS GN 03910.090, Exhibits 2 and 3, for SSA Forms SSA-1696-U4 and SSA 1697-U3, respectively. Also, Form SSA-1696-U4 is available at http://www.socialsecurity.gov/online/ssa-1696.html.
If a representative files a written statement that he/she waives the right to charge a fee for services rendered, or a representative eligible for direct fee payment waives direct payment of a fee from the claimant's title II and /or title XVI past-due benefits, the hearing office (HO) or the Office of Appellate Operations (OAO) staff must notify the Office of Central Operations (OCO) or the Program Service Center (PSC), as appropriate, of the waiver. To notify OCO or the PSC, the HO and OAO staff will do the following:
include the waiver statement in the file;
check the appropriate box(es) on Form SSA-1128 (Representative Involved) (refer to GN 03910.090, EXHIBIT 4, for Form SSA-1128); and
include the following note on the document that transmits the file: “Do not withhold from past-due benefits for payment of a representative's fee.”
Hearing Office: Use Form HA-5051 (Transmittal of Hearing Decision or Dismissal);
Appeals Council: Use Form HA-505 (Transmittal by Office of Disability Adjudication and Review).
If the HO or OAO receives a representative's statement waiving direct payment of a fee from the claimant's past-due benefits after the Administrative Law Judge or Appeals Council has issued a favorable decision, the staff will date stamp and fax the waiver to the processing center, using the Fax Cover Sheet at I-1-2-114(B.), or in a title XVI only case, to the servicing FO.
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. Refer to POMS GN 03920.051 for policy on when SSA will and will not refund the assessment to the claimant.
If an representative eligible for direct fee payment contacts ODAR about an incorrect direct payment and imposition of the user fee assessment, use the Fax Cover Sheet at I-1-2-114(B.) to forward to the PC, or in a title XVI only case, to the servicing FO:
the correspondence from the representative or a report of contact documenting the contact, and
any information in the hearing or appeal folder that documents when SSA received the waiver statement.
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 Act requires 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 amount of the assessment from the claimant.