Last Update: 10/13/11 (Transmittal I-1-62)
Citations:
Staff in any Office of Disability Adjudication and Review (ODAR) component may observe or detect suspected violations of the rules pertaining to a representative's conduct. If this occurs, the staff must fully develop the alleged violations and refer the case as described below. Staff must not report suspected violations to the alleged violator's State bar association or other officials. Any such report could constitute a violation of the Privacy Act, 5 USC §552a, and section 1106 of the Social Security Act, both of which carry criminal penalties. If the Commissioner suspends or disqualifies a representative after appropriate notice and opportunity for a hearing, the Office of the General Counsel (OGC) will inform relevant State courts and bars of the sanction imposed, per I-1-1-50 G.
ODAR staff who observe possible representative non-fee related misconduct (see I-1-2-81 for documenting fee-related misconduct) should fully develop and refer the case as follows:
Prepare a compact disc (CD) of the electronic file. If a paper file is involved, locate the file. If pertinent, include a copy of the recorded hearing.
Prepare a referral memorandum that includes:
the names of the representative and the claimant, as well as the address and telephone number of both individuals;
the name, address, and telephone number of any other involved individual or witness;
the date(s) the action(s) occurred;
the action(s) that led to the representative misconduct allegation;
the location(s) where the action(s) took place (i.e., hearing office, representative's office, or other location); and
contact information for the reporter.
If possible, obtain copies of other pertinent evidence, such as a notice of the representative's disbarment or suspension.
If possible, obtain signed statements from the claimant and witnesses detailing the misconduct.
Forward the referral memorandum, the CD of the file or the paper file, and any other evidence to component management for review.
Hearing office (HO) or National Hearing Center (NHC) management will review referrals to ensure that the allegations are fully developed according to 1 above. HO management will forward fully developed referrals to the management team in the ODAR regional office (RO). RO staff will check for other regional referrals involving the same representative before sending the referral package to the Office of the Regional Chief Counsel (ORCC) for the region in which the alleged misconduct arose.
For NHCs, the NHC director performs RO functions.
If possible misconduct is observed by RO or HO staff in ODAR headquarters, allegations will be developed as much as possible according to the instructions in 1 above and forwarded to the Office of the Chief Administrative Law Judge (OCALJ). OCALJ will forward the referrals to the ORCC for the region in which the alleged misconduct arose.
OGC, as the Commissioner's designee, will evaluate the referral and consider whether to initiate an administrative sanction action against the representative. OGC may contact the referring office for more information or assistance.
The referring office will continue processing the claim and will take no other action on the referral unless requested to do so by OGC.
The Commissioner has designated OGC to examine and process all referrals alleging an administrative violation of our laws, regulations, rules, policies, or standards.
When OGC receives a referral, it will evaluate the suspected violation and determine whether further action is required.
If OGC determines that the representative may have violated the Social Security Act or regulations and that the matter is appropriate for informal resolution, OGC may prepare an inquiry letter placing the representative on notice of the potential violation and the penalties for failure to comply with the statute or regulations. The inquiry letter will also contain instructions for informal resolution of the alleged violation(s). If the representative complies with the directions given in the inquiry letter, OGC may close the investigation without further action.
If the representative neither responds to the inquiry letter nor complies with OGC's instructions, OGC may prepare a notice containing a statement of charges that recommends to the General Counsel (GC) that the Social Security Administration (SSA) initiate a suspension or disqualification action against the representative. OGC will take the same action if the matter is inappropriate for informal resolution.
If the GC agrees with the recommendation, he or she will sign the notice containing a statement of charges, and OGC will serve the notice on the representative via certified or registered mail. The notice must describe with specificity the acts or omissions that constitute the basis for the charges and specify whether SSA is seeking a disqualification or a suspension.
The notice will advise the representative of his or her right to file within 30 days an answer admitting or denying the factual assertions contained in the notice and stating why SSA should not suspend or disqualify him or her from acting as a representative before SSA.
If the representative's answer satisfies OGC that SSA should not suspend or disqualify the representative, OGC will withdraw the charges and notify the representative.
If the representative does not file a timely answer or if the answer does not support withdrawal of the charges, OGC will ask OCALJ to designate an administrative law judge (ALJ) to serve as the hearing officer in the case and decide the merits of the charges. The ALJ designated as the hearing officer will be from outside the region(s) where the representative practices.
A hearing on charges seeking the suspension or disqualification of a representative is an adversarial action conducted under the rules and procedures set forth in our regulations. Once designated, the hearing officer will serve, via certified mail or personal service, a copy of the formal designation as hearing officer on OGC and the representative against whom charges were made at his or her last known address. Either party to the hearing may object to the assigned hearing officer if the party believes that the hearing officer cannot render an unbiased decision. The hearing officer will consider the objection and decide whether to proceed with the hearing. The hearing officer must disqualify himself or herself if he or she is unable to render an unbiased decision in the case due to prejudice for or against a party or due to a personal interest in the matter. If the hearing officer disqualifies himself or herself, OCALJ will assign another ALJ to serve as the hearing officer for the case.
At least 20 days before the hearing, the hearing officer must serve a notice of hearing on OGC and the representative against whom charges were made at his or her last known address, via certified mail or personal service. The notice of hearing will set the date, time, and location of the hearing and will include requirements and instructions for filing motions, requesting witnesses, and entering exhibits. It may also require that the parties file a prehearing statement of the parties' contentions and the controlling issues of fact and law.
Either party may ask the hearing officer to issue subpoenas for witnesses and for the production of records, correspondence, or other documents. The hearing officer may also issue subpoenas on his or her own initiative for the same purposes.
An attorney from OGC represents SSA at the hearing. The representative against whom charges were brought may choose to be represented by an attorney or other representative.
If after due notice, one of the parties does not appear at the scheduled hearing, the hearing officer will continue with the proceedings so that the party present may offer evidence. Due notice is given if a hearing officer serves the parties with the designation as hearing officer and notice of hearing at all known addresses. If a party fails to appear at the hearing without a showing of good cause, the party is deemed to have waived the right to a hearing. The hearing officer will still issue a decision if the party is deemed to have waived the right to a hearing.
These hearings are not open to the public. Only the parties and any persons the hearing officer or the parties consider necessary may attend. The hearing officer has the authority to regulate the conduct of the hearing and to decide the order in which the parties will present their evidence. It is the hearing officer's responsibility to inquire fully into the matter(s) at issue, hear testimony and argument, and accept into evidence any documentary items that are relevant, material, and not repetitious. Witnesses who testify must do so under oath or affirmation. The hearing officer will make a complete record of the proceedings at the hearing by contracting the services of a reliable court reporting service that has the ability to produce written transcripts, or by using hearing office digital recording equipment. (See I-2-6-40.)
If the charged representative did not file an answer to the charges, he or she may not present evidence at the hearing. The hearing officer may make or recommend a decision based on the existing record, or permit the charged representative to submit a statement about the sufficiency of the evidence or the validity of the proceedings.
At the close of the hearing, the hearing officer must give the parties the opportunity to present oral or written summations and to file briefs or other statements about proposed findings of fact and conclusions of law. The hearing officer will obtain one original certified transcript of the oral proceedings for the record, and will prepare copies upon request for the parties.
If a party fails to appear at the hearing, the hearing officer will give the absent party an opportunity to show cause for failing to appear at the hearing and may hold a supplemental hearing if good cause is established.
The hearing officer may reopen the hearing to accept additional evidence when the charged representative filed an answer to the charges, and the hearing officer believes that material evidence exists that was not presented at the hearing.
The hearing officer will issue a written decision containing findings of fact and conclusions of law based on the evidence presented at the hearing. The standard of proof is preponderance of the evidence. The hearing officer's decision is final and binding unless reversed or modified by the Appeals Council (AC) on review.
If the hearing officer determines that SSA proved the charges, he or she will either:
Suspend the representative from further practice before SSA for a specified period of not less than one year and not more than five years from the date of the decision; or
Disqualify the representative from further practice before SSA.
Disqualification is the sole sanction available if the hearing officer finds that the representative:
has been, for reasons of misconduct, disbarred or suspended from any court or bar to which the representative was previously admitted to practice; or
has been, for reasons of misconduct, disqualified from participating in any Federal program or appearing before any Federal agency; or
has collected or received, and retains, a fee in excess of the amount that SSA authorized.
NOTE:
The hearing officer must never impose a suspension when disqualification is the sole sanction available.
A decision on an action to suspend or disqualify a representative is not an initial determination (see 20 CFR 404.903(g) and 416.1403(a)(7)), so the parties only have the right to administrative review as described in 20 CFR 404.1775 - 404.1795 and 416.1575 - 416.1595. SSA's decision is final and not subject to judicial review.
Either party may ask the AC to review the hearing officer's decision. The notice transmitting the hearing officer's decision must inform the parties of this right and direct the parties to file the request for review in writing with the Deputy Chair of the Appeals Council within 30 days from the date the hearing officer mailed the decision.
Upon receipt of a request for review, the AC may:
issue a decision that affirms, reverses, or modifies the hearing officer's decision;
return the case to the hearing officer for further proceedings; or
dismiss the request for review.
The AC, in reversing or modifying the hearing officer's decision, may not impose a suspension of less than one or more than five years.
The AC may dismiss the request for review in any of the following circumstances:
the party who filed the request for review asks the AC, in writing, to dismiss the request, and the other party does not object;
the party against whom charges were brought dies; or
the party requesting review failed to file the request within 30 days, and the AC does not find good cause for extending the filing period.
The AC will issue its final decision or order in writing and will mail copies to all parties. The AC's decision is final and not subject to judicial review.
A representative against whom charges are pending may continue to represent claimants until the Commissioner issues a final decision. A decision to suspend or disqualify a representative becomes final and binding unless, within 30 days of the date the hearing officer mailed the decision, one of the parties requests the AC to review the decision. When the request for review is filed more than 30 days after the date the hearing officer mailed the decision, the hearing officer's decision remains final and binding unless the AC finds good cause for the untimely filing and assumes jurisdiction. If the AC reviews the hearing officer's decision (based on either a timely filed request for review or a late request for review for which the AC finds good cause for late filing), the representative may continue to represent claimants until the AC issues its final decision on the matter. When the AC issues its decision, any period of suspension or disqualification the AC imposes is effective from the date of the AC's decision.
A claimant cannot appoint a suspended or disqualified representative, and a suspended or disqualified representative may not charge or collect a fee for representational services performed on or after the effective date of his or her suspension or disqualification. A representative may be entitled to payment for services provided before his or her suspension or disqualification, but the representative cannot receive direct payment of those fees on or after the effective date of the suspension or disqualification.
SSA will not recognize a suspended or disqualified representative. SSA will disapprove a suspended or disqualified representative's fee agreement if the claim is favorably decided on or after the effective date of the representative's suspension or disqualification.
A suspended or disqualified representative may petition SSA to authorize a fee for services provided before the effective date of the suspension or disqualification. Since a representative may not legally provide services on or after the effective date of a suspension or disqualification, he or she may not petition for a fee for any work performed on a claim on or after the effective date of the suspension or disqualification.
NOTE:
Even though a suspended or disqualified representative may seek and receive authorization to charge and collect a fee for services provided before the effective date of the suspension or disqualification, he or she is not eligible for direct payment of the authorized fee. Therefore, collection of the authorized fee is a matter between the representative and the claimant. See Program Operations Manual System (POMS) GN 03920.017A.
The hearing officer or the AC must promptly transmit any decision on charges following a hearing or AC review to OGC and to the representative against whom charges were brought. When a suspension or disqualification decision becomes final and binding, OGC will notify all appropriate SSA components of the action. A copy of the decision will accompany the notification. When the suspended or disqualified representative is an attorney, OGC will provide a copy of the decision to the attorney's disciplinary authority in every State or Territory in which the attorney is admitted to practice.
Once the decision becomes final and the sanction is effective, ODAR's Division of Information Technology Integration will post the representative's name to SSA's List of Sanctioned Representatives at http://odar.ba.ssa.gov/odarweb/oac/scsrep.cfm. The Division of Electronic Services will also update the representative's new status in the representative table that supplies information to the Case Processing and Management System (CPMS) and the Appeals Review Processing System (ARPS).
See POMS GN 03970.060D. regarding the responsibility of the field office to notify claimants of a representative's suspension or disqualification. Sample notice language is at POMS GN 03970.065.
If an individual who has been suspended or disqualified from acting as a representative subsequently attempts to act as a representative for claimants in any matter pending before SSA, staff must advise the individual in writing that SSA does not recognize him or her as a representative. If a claimant is involved, SSA staff must also notify the claimant that SSA does not recognize the individual as his or her representative. If the individual still insists on serving as a representative, SSA staff must refuse to recognize him or her and prepare a referral to OGC, following instructions in I-1-1-50 A.
See POMS GN 03970.060B for a discussion of indirect representation and the receipt of indirect fees by suspended or disqualified representatives.