I-2-10-6.Notice of Hearing
Last Update: 6/25/14 (Transmittal I-2-112)
A. Issues to Be Decided
Under 20 CFR 404.938 and 416.1438, a notice of hearing must contain a statement of the specific issues to be considered. The general procedures regarding notice of issues are set forth in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-2-10. As explained in HALLEX I-2-10-10, the issue of whether evidence should be disregarded under the fraud and similar fault provisions is an issue requiring specific notice when:
The issue was unfavorably decided in the determination (unless the claimant does not contest the issue);
The administrative law judge (ALJ) identifies the issue at the hearing level; or
The ALJ is revisiting an issue of fraud or similar fault that was previously decided in the claimant's favor.
If an ALJ has been asked to redetermine a claim(s) based on an issue of fraud or similar fault, the ALJ will be provided with appropriate language for the notice of hearing. For more information on redeterminations, see HALLEX I-1-3-25.
Additionally, when specifically identified by the Social Security Administration (SSA), this section does not apply to the Office of the Inspector General (OIG) referrals of information pursuant to section 1129(l) of the Social Security Act or information from a criminal prosecutor with jurisdiction over potential or actual related criminal cases. When SSA receives information regarding an individual or multiple individuals pursuant to section 1129(l) of the Social Security Act, SSA must use the redetermination procedures, as explained in HALLEX I-1-3-25.
To give notice, the following language is included in the “Issues I Will Consider” section of the notice of hearing:
I will also consider the issue of whether evidence in your case should be disregarded because fraud or similar fault was involved in providing the evidence. [Section 205(u)] [and/or] [Section 1631(e)(7)] of the Social Security Act, as amended, [requires][require] that evidence in a claim for benefits be disregarded if there is reason to believe that fraud or similar fault was involved in providing that evidence. I plan to consider whether there was fraud or similar fault in your case. I will decide that fraud or similar fault was involved only if there is reason to believe, after considering all the evidence in your case, that it is more likely than not that you or any other person connected to your claim knowingly gave us false or incomplete information that could influence my decision on your claim for benefits.
To the extent possible, an ALJ will also include personalized language to note the particular evidence in question and whether the issue is new or whether the ALJ is revisiting an issue previously decided in the claimant's favor.
B. Additional Witnesses
If there is to be an appearance at an administrative hearing by a Special Agent, a State or local law enforcement officer, or a witness in an investigation conducted by OIG, the hearing office will modify the Remarks section of the notice of hearing to notify the claimant of the identity of each individual who is to appear as a witness. Witnesses must be advised of the date and time of their scheduled appearance by letter.
In addition to any other notice requirements, the following language is used in a notice of hearing when re-opening is an issue based on fraud or similar fault:
The Administrative Law Judge will decide whether a prior favorable determination or decision made on _____ [date], based on a claim for benefits that you filed on ______ [date], should be reopened under 20 CFR 404.987, 404.988, 416.1487, and/or 416.1488. The Social Security Act requires that an Administrative Law Judge disregard evidence in a claim for benefits if there is reason to believe that “fraud or similar fault” was involved in providing the evidence. If the Administrative Law Judge decides that your claim should be reopened and revised because “fraud or similar fault” was involved in providing evidence to support your prior claim, then the Administrative Law Judge will consider what, if any, evidence to disregard.