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

Last Update: 12/9/24 (Transmittal I-1-108)

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 unless the representative explicitly waives the fee. Similarly, if a representative is eligible for direct payment and does not explicitly waive direct payment, SSA assumes the representative will request direct payment of the authorized fee. Occasionally, such as with legal service organizations, a representative will provide services without expecting fee payment from either the 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 and signed 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 wants to assign the right to direct payment of an authorized fee to an entity, they must make that assignment explicit as explained in Hearings, Appeals, and Litigation (HALLEX) manual I-1-2-1 C. For a more complete discussion of assignment, see Program Operations Manual System (POMS) GN 03920.021

If a representative waives the fee and later decides to charge and collect a fee (i.e., withdraw the fee waiver), the representative must submit a new, completed Form SSA-1696, signed by both the claimant and the representative, indicating that the representative intends to charge a fee. Similarly, a representative who previously waived only the right to direct payment and later decides to seek direct payment must submit a new, completed Form SSA-1696, signed by both the claimant and representative, indicating that they wish to receive direct payment of any authorized fee.

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 waives direct payment of a fee from Title II and/or Title XVI past-due benefits, the representative must:

  • Submit a written and signed statement that clearly and unequivocally states that the representative is waiving the fee and/or direct payment of the fee; or

  • Complete section 6 of Form SSA-1696 “Claimant's Appointment of a Representative.”

NOTE 1:

Although representatives may use any written statement that meets the requirements set forth above, they are encouraged to make waivers as early in the administrative review process as possible, preferably at the time of appointment, and to use the Form SSA-1696 to ensure timely and accurate processing of their waivers.

NOTE 2:

When a representative eligible for direct fee payment is known to work for a legal services organization or other organization that routinely waives the fee does not waive the fee, staff may 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 it in the claim(s) file.

NOTE 3:

When a representative completes section 6 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. Section 6 of Form SSA-1696 also allows the representative to indicate that they may charge or collect a fee from a third party or that they will request a fee, but not direct payment. See POMS GN 03920.020C for more information.

NOTE 4:

SSA will not accept fee or direct payment waivers from representatives who previously validly assigned direct payment of their fee and did not timely rescind that assignment (See 20 CFR 404.1730(e)(4) and 416.1530(e)(4)).

C. Procedures

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. A representative is also encouraged to make such a waiver on a Form SSA-1696. In such cases, the Office of Hearings Operations (OHO) or the Office of Appellate Operations (OAO) staff must notify the servicing field office (FO) in a Title XVI only case, or the Office of International Operations (OIO) or the jurisdictional processing center (PC) in a concurrent or Title II only case, as appropriate, of the fee waiver. To communicate with OIO or the PC, see HALLEX I-1-2-96 for the appropriate control mailboxes. OHO or OAO staff will do the following:

  • Ensure the waiver statement or Form SSA-1696 is in the claim(s) file;

  • Update the Registration, Appointment, and Services for Representatives (RASR) application to indicate the fee waiver. OHO staff will refer to Standard Hearings Operations Procedure (SHOP) section 1.3.5.6 for hearing-level instructions on updating RASR, and OAO staff will refer to the OAO RASR reference site;

  • Update the Case Processing and Management System (CPMS) as appropriate for cases pending with OHO, and the Appeals Review Processing System (ARPS) for cases pending with OAO. OHO and OAO staff need not update the Hearings and Appeals Case Processing System (HACPS) or the Office of Appellate Operations Case Processing System (OAOCPS) because information added or updated in RASR automatically propagates in these case processing system(s);

  • For a paper folder:

    • 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.”

    NOTE:

    If multiple representatives have been appointed to a paper case, the above instructions apply only if all 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, in addition to the process above, OHO or OAO staff will date and send the waiver to the PC, using the appropriate control mailbox in HALLEX I-1-2-96. In Title XVI only cases, OHO or OAO staff will notify the servicing FO only.

D. Erroneous Direct Payment and Assessment

On occasion, SSA pays an authorized fee and imposes the user fee on the direct payment amount despite a representative's waiver of direct payment. Refer to POMS GN 03920.051 for excess or otherwise erroneous payments made to individual representatives and entities and GN 03920.052 for processing instructions to recover such erroneous payments.

If an eligible representative or an entity's point of contact (POC) (see POMS GN 03920.021) contacts OHO or OAO about an incorrect direct payment and 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 POC or a report of contact documenting the contact, and

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

NOTE:

If the representative's or POC's contact relates to the “fairness” of the user fee assessment, do not forward the correspondence to the PC. Explain to the representative or POC 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.