CAM Chapter: 3000

OAC Rule: 5101:1-5-60

Reason for Change: Section 302 of the Social Security Protection Act (SSPA) of 2004 extends the attorney fee withholding and payment process under title II of the Social Security Act (the Act) to claims for benefits under title XVI (Supplemental Security Income [SSI])of the Act. As a result, the Social Security Administration (SSA) will send direct payment of past due SSI benefits to an attorney or approved non-attorney who successfully represents an SSI claimant.

Section 303 of the SSPA also allows the SSA to implement and to include certain non-attorney representatives of claimants under titles II and XVI of the Act in the direct fee reimbursement process. This means that certain non-attorney representatives also have the option to have their approved fees withheld and paid directly to them by SSA from a beneficiary's past-due SSI benefits. The SSA will determine the eligibility of non-attorney applicants to participate as representatives of claimants in this new process. The specific requirements for non-attorney representatives are detailed later within this ACT.

Because the changes in the SSA direct payment process have an effect on the SSI Case Management Program policy contained in rule 5101:1-5-60 of the Administrative Code, this ACT sets forth those changes.

Prior Policy: Current language in rule 5101:1-5-60 of the Administrative Code requires that attorneys who represent individuals applying for SSI and Social Security Disability (SSDI) benefits and who are successful in obtaining approval of those benefits, be reimbursed for their services directly by SSA prior to the issuance of the Interim Assistance Reimbursement (IAR) from SSA to the CDJFS.

Attorneys who represent DFA applicants or recipients applying only for SSI benefits and who are successful in obtaining approval for those benefits, are reimbursed for their services by the CDJFS, following the CDJFS receipt of the IAR check from the SSA. In order for a payment to be made, a JFS 07365, "Application for Release of Interim Assistance Reimbursement to Attorney/Representative of an SSI Applicant" is completed and submitted to the CDJFS by the attorney/representative. The CDJFS pays a fee from the IAR it receives from the SSA on behalf of the recipient.

New Policy: The new policy is only applicable to situations where there is an attorney or an approved non-attorney representative requesting direct fee reimbursement from SSA. When SSA has both the fee agreement and representation authorization completed by an attorney or certain approved non-attorney representative (who meets the SSA eligibility conditions listed within this ACT) the SSA will send the direct fee payment to the attorney or approved non-attorney representative when the SSI claim is awarded. This policy became effective February 28, 2005. Attorney/approved non-attorney representatives representing successful SSI-only claims, as well as successful dual SSI/SSDI claims will be paid directly by the SSA.

The SSA will send the CDJFS a SSA-L8125-F6, "IAR Payment Pending Case: State Due Payment" at the time that the individual has been awarded an SSI claim for benefits. The CDJFS shall complete the section titled "State's Account of Reimbursement Claimed" and must return the form to the SSA within ten (10) working days. The SSA will then reimburse the CDJFS for the IAR paid upon the approval of SSI benefits. The attorney/approved non-attorney representative will be paid directly by the SSA.

Notification is provided to an attorney/approved non-attorney representative in all cases where a representative agreement has been filed with SSA. In cases where the attorney/approved non-attorney representative is not charging a fee, the claimant receives a notice that the attorney/approved non-attorney representative agreed not to charge a fee.

In cases where there is a fee agreement, the attorney/approved non-attorney representative is notified of the amount of the fee approved, the service charge that is being deducted and how the fee was computed.

When a CDJFS receives a JFS 07365 from an attorney/approved non-attorney representative for payment of successful SSI claims, the CDJFS shall request a copy of the SSA notification from the attorney/approved non-attorney representative. If the attorney/approved non-attorney representative reports that he/she has not received any notice and has filed with the SSA to represent the claimant, the CDJFS shall refer the attorney/approved non-attorney representative to the local SSA office to resolve the issue and provide needed verification. SSA notice verification will ensure that fees are not paid to the attorney/approved non-attorney representative by both the SSA and the CDJFS when claims have been approved.

The existing SSI case management policy remains in effect for all situations where direct fee reimbursement from SSA is not requested by the non-attorney representatives.

Approved Non-Attorney Representatives

Pursuant to Section 303 of the SSPA, the SSA also has implemented a 5-year demonstration project on fee withholding for certain non-attorney representatives. The demonstration project began on February 28, 2005. This project allows certain non-attorney representatives the option to have fees withheld and paid directly from the claim by the SSA. Previously, this option was only available to attorneys.

To become an approved non-attorney representative SSA requires certain qualifications as listed below:

• Qualifications equal to a bachelor's degree;
• Experience in representing claimants before SSA;
• Liability insurance or equivalent insurance adequate to protect claimants in the event of malpractice by the representative;
• Criminal background check that ensures a representative's fitness to practice before the SSA Commissioner;
• Examination testing knowledge of the relevant provisions of the Act and the most recent developments in agency and court decisions affecting titles II and XVI of the Act; and
• Completion of relevant continuing education courses.

Representation Without Fee Payment

Non-attorney representatives who do not meet the qualifications of the SSA may not receive direct fee payment for representation of approved SSI claim awards from the SSA.

In accordance with the provisions set forth in rule 5101:1-5-60 of the Administrative Code, non-attorney representatives who do not meet the SSA qualifications may still represent DFA individuals who apply for or have been denied SSI benefits but are requesting a reconsideration of the denial of those benefits through the appeal process. CDJFS' SSI case managers may also represent DFA individuals who apply for or have been denied SSI benefits but are appealing the denial of those benefits before the SSA. The non-attorney representative who successfully appeals an SSI claim may receive payment from the CDJFS for services rendered when the requirements of rule 5101:1-5-60 for fee payment by the CDJFS have been met. There shall be no IAR fee payable by the CDJFS to a claimant who may elect to represent himself, nor to a CDJFS, or a CDJFS employee who may be representing an individual in the SSI claim process.

Examples of IAR Payment

The following examples represent how the IAR payment will be made dependent upon the situation:

1)A DFA applicant makes application for an SSI claim. An attorney/non-attorney representative who has met SSA guidelines for a fee payment represents the applicant. The CDJFS initiates DFA assistance and has the applicant sign the JFS 07319, "Repayment Authorization for Interim Assistance Paid During Initial Eligibility Payment Period" for CDJFS reimbursement. The SSI claim is approved. The SSA sends the CDJFS a SSA-L8125-F6, "IAR Payment Pending case: State Due Payment" for completion of the DFA received. The CDJFS completes the form and returns to SSA within ten (10) working days. The SSA then reimburses the CDJFS for the IAR payment received by the claimant pending approval of the SSI claim. The SSA sends the attorney/non-attorney representative a direct fee payment and sends the remaining payment due to the claimant.

2)A DFA applicant previously applied for SSI/SSDI benefits and was denied by SSA. The individual appeals the denial and is assisted by the CDJFS case manager. The case manager is successful in appealing the initial decision. The SSA sends the individual's retroactive payment and a SSA-L8125-F6 to the CDJFS for completion. The CDJFS calculates the amount of interim assistance paid, lists it on the SSA-L-8125-F6, retains that amount, and forwards the remainder to the claimant. The CDJFS must return the SSA-L8125-F6 to the SSA within ten (10) working days.

3)An attorney represents a DFA recipient in a reconsideration of an SSI denial. The attorney has filed a representative agreement for a fee with SSA. The SSA reverses a previous decision and awards SSI to the individual. The attorney provides a JFS 07365 to the CDJFS for payment. The CDJFS requests SSA notification from the attorney. The attorney states that he/she has not received notification from SSA. The CDJFS refers the attorney to the local SSA office for resolution of the matter. The attorney provides notification to the CDJFS stating the amount of the fee approved, the service charge that was deducted and how the fee was computed. Upon receipt of this information it is determined the attorney will be paid directly by SSA. The CDJFS shall within fifteen (15) days, deny the JFS 07365 submitted by the attorney stating the reason for denial. If the attorney disagrees, he/she may within fifteen (15) days of the decision file a written request for a review with the "Ohio Department of Job and Family Services, Office of Legal Services."

There are no substantive changes to the IAR process in accordance with rule 5101:1-5-70 of the Administrative Code. However, the rule will be amended in the future to include appropriate reference to the direct fee reimbursement process.

The policy contained within this ACT will be incorporated in a future CAMTL.