Here's the situation. Person with a Supplemental Security Income (SSI) claim moves from New York to North Carolina, where I am. While in New York he was receiving an interim disability benefit either from NY state or New York City. He's now been approved. His SSI benefits are supposed to be reduced by what's called an interim assistance offset. The money offset is supposed to be paid to the governmental entity that was paying the interim assistance. However, by statute, the amount of the attorney fee is supposed to be based upon the gross amount of the back benefits rather than the net amount after the interim assistance offset. In this person's case, if you take the interim assistance offset and combine it with the computed attorney fee, it comes to more than the past due benefits. Social Security has paid NY its full amount but reduced the attorney fee by the excess.
Can they do that? I couldn't find this question addressed in Social Security's POMS manual. Since I'm in North Carolina, which has no form of interim assistance, rather than NY, I'm not familiar with what Social Security has been doing in these cases.
If they can do this, is there any way of getting reimbursement from NY for the attorney fee that wasn't paid? I recall hearing that NY did this before Congress changed the statute to base the attorney fee on the gross SSI benefit.
8 comments:
Interim assistance benefits are reimbursed to DSS from past due benefits first. in most cases there is insufficient funds to pay the attorney fee in full, or at all. In that case, DSS gets their money in full and the representative takes the hit. There is no statutory or regulatory relief. The reps are out of luck.
as 4:21 stated, in NYS the interim assistance is reimbursed to the state before anyone else gets paid.
42 USC § 406(a)(2)(A)(ii)(I) says in regard to fee agreements, the past due benefits are reduced prior to any offsets applied under 42 USC § 1320a–6(c). 42 USC § 1320a–6(c) specifically says reimbursement to the state is an offset.
So by statute, SSA can specifically NOT do that. Not sure if contacting NY for reimbursement would work. You could contact social security. I would imagine best case scenario would be they modify their fee award, stating you may request the excess fee not previously reimbursed from your client directly.
at least for NY and NJ, both above comments are correct. the funny part is you think you should be reimbursed ahead of states willing to help destitute claimant as they wait for a disability determination.
Seems they pay the smallest amount and what is described is (b)(ii) seems to be this situation.
https://www.ssa.gov/OP_Home/cfr20/416/416-1530.htm
(a) Fees allowed by a Federal court. We will pay an attorney representative out of your past-due benefits the amount of the fee allowed by a Federal court in a proceeding under title XVI of the Act. The payment we make to the attorney is subject to the limitations described in paragraph (b)(1) of this section.
(b) Fees we may authorize—(1) Attorneys and eligible non-attorneys. Except as provided in paragraph (c) of this section, if we make a determination or decision in your favor and you were represented by an attorney or an eligible non-attorney, and as a result of the determination or decision you have past-due benefits, we will pay the representative out of the past-due benefits, the smallest of the amounts in paragraphs (b)(1)(i) through (iii) of this section, less the amount of the assessment described in paragraph (d) of this section.
(i) Twenty-five percent of the total of the past-due benefits, as determined before any payment to a State (or political subdivision) to reimburse the State (or political subdivision) for interim assistance furnished you, as described in § 416.525 of this part, and reduced by the amount of any reduction in benefits under this title or title II pursuant to section 1127 of the Act;
(ii) The amount of past-due benefits remaining after we pay to a State (or political subdivision) an amount sufficient to reimburse the State (or political subdivision) for interim assistance furnished you, as described in § 416.525 of this part, and after any applicable reductions under section 1127 of the Act; or
If you take 25% of the back pay, that leaves 75% of each months back pay to pay the offset. Monthly interim assistance payments are always less than 75% of the FBR, so this is usually not an issue. Most, if not all, counties require disabled assistance recipients to file for SSI and pursue their claims through the AC level. If the claim is successful, there is always money left over to pay the attorney in full. I would bet the county either is trying to lump 2 claims into one, or dropped the ball and paid your client for years without requiring that he file for SSI. I would review the terms of the reimbursement contract carefully.
to 6:37
As to NY yes, Lost a $15,000 fee that way (a very unusual case) but for New Jersey, there is provision for reimbursement from eh State of New Jersey out of what they receive back. You need to apply and the amount is limited to the lesser of 25% of back or $4,000 but can be done.
NOSSCR has the info as to how for those in need.
SI 02101.003A. SSI Underpayment - The order of priority is IAR (interim assistance reimbursement), direct payment of a representative fee, and then recovery of a prior overpayment. If any money remains, the claimant gets it.
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