I-1-2-10.Waiver of Fee or of Direct Payment of Representative's Fee

Last Update: 5/8/20 (Transmittal I-1-96)

A. Representative's Options

The Social Security Administration (SSA) assumes that a representative will charge a fee for his or her services. Occasionally, a representative will provide services without expecting payment from either a claimant or any other source (i.e., waiving 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 or her fee from title II and/or title XVI past-due benefits.

The representative's written statement that he or 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 or her fee and later decides to charge and collect a fee, the representative must obtain the claimant's written concurrence and SSA's authorization.

B. Waiver Statement

If a representative who is eligible for direct fee payment states that he or 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 or she is waiving the fee or direct payment of the fee; or

  • complete section 7 of form SSA-1696 “Claimant's Appointment of a Representative,” as appropriate; or

  • sign either the “Waiver of Fee” or “Waiver of Direct Payment by Attorney or Non-Attorney Eligible to Receive Direct Payment” (Waiver of Direct Payment) section of form SSA-L1697-U3 “Notice to Representative of Claimant Before the Social Security Administration,” as appropriate.

NOTE 1:

If the representative who is eligible for direct fee payment works for a legal services organization or other organization that routinely waives the fee, contact the representative by telephone, and determine if he or she wishes to waive the fee. Document the call with a report of contact, and include the report of contact in the claim(s) file.

NOTE 2:

When a representative completes section 7 of form SSA-1696, and selects the checkbox labeled “I waive the right to a fee”, it constitutes a waiver of any fee for services, whether charged to or collected from the claimant or a third party (see Program Operations Manual System (POMS) GN 03920.020B for more information).

NOTE 3:

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 03905.030 for form SSA-1696.

C. Procedures

A representative may file a written statement that he or she waives the right to charge a fee for services rendered or waives eligibility for direct fee payment from the claimant's title II and/or title XVI past-due benefits. In such cases, the hearing office (HO) or the Office of Analytics, Review, and Oversight (OARO) staff must notify the Office of Central Operations (OCO) or the jurisdictional processing center (PC), as appropriate, of the waiver. To notify OCO or the PC, the HO and OARO staff will do the following:

  • include the waiver statement in the claim(s) file;

  • check the appropriate box(es) on form SSA-1128 “Representative Involved” (refer to POMS GN 03905.025 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-L48 “Transmittal of Hearing Decision or Dismissal”;

    Appeals Council: Use form HA-505 “Transmittal by Office of Appellate Operations.”

The HO or OARO may receive 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 fully or partially favorable decision. After such notification, the HO or OARO staff will date stamp and send the waiver to the processing center (PC), using the appropriate control mailbox in Hearings, Appeals and Litigation Law (HALLEX) manual I-1-2-96. In title XVI only cases, only notification to the servicing field office (FO) is needed.

D. 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. Refer to POMS GN 03920.051 for policy on when SSA will and will not refund the assessment to the claimant.

If a representative eligible for direct fee payment contacts the Office of Hearing Operations (OHO) or OARO about an incorrect direct payment and imposition of the user fee assessment, provide to the PC (using the appropriate control mailbox referenced in HALLEX I-1-2-96), or in a title XVI only case, to the servicing FO, the following information:

  • correspondence from the representative or a report of contact documenting the contact, and

  • any information in the claim(s) file folder that documents when SSA received the waiver statement.

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 Act 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 amount of the assessment from the claimant.