I-1-2-10.Waiver of Representative's Fee or of Direct Payment of Fee
Last Update: 11/14/22 (Transmittal I-1-105)
A. Representative's Options
The Social Security Administration (SSA) assumes that a representative will charge a fee for services performed on behalf of a claimant. 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 the fee from title II and/or title XVI past-due benefits.
The representative's written statement waiving 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 individual.
If a representative waives the 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 waives the right to 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 that the representative 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.
If the representative who is eligible for direct fee payment works for a legal services organization or other organization that routinely waives the fee, staff will contact the representative by telephone, and determine if the representative wishes to waive the fee, and remind them of the requirement to submit a written statement waiving the fee. Staff will document the call with a report of contact and include the report of contact in the claim(s) file.
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).
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.
A representative may file a written statement waiving the right to charge a fee for services performed or waiving direct fee payment from the claimant's title II and/or title XVI past-due benefits. In such cases, the Office of Hearings Operations (OHO) or the Office of Appellate Operations (OAO) staff must notify the Office of Central Operations (OCO) or the jurisdictional processing center (PC), as appropriate, of the fee waiver. To communicate with OCO or the PC, see Hearings, Appeals and Litigation (HALLEX) manual I-1-2-96 for the appropriate control mailboxes. OHO or OAO staff will do the following:
include the waiver statement in the claim(s) file;
update the Registration, Appointment, and Services for Representatives (RASR) application to indicate the fee waiver, if the representative is registered for direct payment. OHO staff should refer to Standard Hearings Operations Procedure (SHOP) section 188.8.131.52 for hearing-level instructions on updating RASR;
update the Case Processing and Management System (CPMS) for cases pending with OHO, and in the Appeals Review Processing System (ARPS) for cases pending with OAO. OHO staff need not update the Hearings and Appeals Case Processing System (HACPS) because information added or updated in RASR automatically propagates in HACPS;
for a paper case:
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.”
If multiple representatives have been appointed to a paper case, the above instructions apply only if all the representatives have submitted a written waiver(s) of their right to charge a fee.
OHO or OAO 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, OHO or OAO staff will date stamp and send the waiver to the PC, using the appropriate control mailbox in HALLEX manual I-1-2-96. In title XVI only cases, OHO or OAO staff will notify the servicing field (FO) only.
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 OHO or OAO about an incorrect direct payment and imposition of the user fee assessment, staff will 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) 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 require the Commissioner to impose the assessment.
The PC will determine if SSA will refund the assessment to the claimant.