I-5-1-22.Requiring Certain Representatives to Access the Electronic Claim(s) File Through Appointed Representative Services
Last Update: 6/7/21 (Transmittal I-5-122)
Issued: April 18, 2016
Effective: August 16, 2016
Revised: June 7, 2021
I. Purpose
This temporary instruction (TI) provides guidance to the Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff on implementing the requirement that certain representatives access the electronic claim(s) file through the Appointed Representative Services (ARS) system, as announced in Federal Register Notice (FRN) 81 FR 22697. This FRN became effective on August 16, 2016.
We initially published these instructions to inform our offices and the representative community how we implemented the FRN. Additional revisions, effective February 7, 2020, remove references to processing form SSA-1695, which became obsolete on February 7, 2020, and instruct OHO and OAO staff instead to review the Registration, Appointment and Services for Representative (RASR) intranet application, form SSA-1696 or equivalent writing, where applicable.
II. Background
In November 2010, the Social Security Administration (SSA) implemented the ARS system nationally at the hearing level. Among other things, ARS permits an appointed representative to examine a claim(s) file online, download material from the claim(s) file, and upload evidence to the claim(s) file in real time. Due to the successful implementation at the hearing level, SSA expanded a representative's access to the claim(s) file through ARS to the Appeals Council level in June 2011.
By 2016, the vast majority of appointed representatives were registered for and accessing claim(s) files online through ARS. Accessing the claim(s) file through ARS not only ensured that the representative was able to access the most up-to-date claim(s) file, but it also improved efficiencies and reduced SSA costs in associating incoming medical evidence and other information with a claim(s) file. However, because use of ARS was voluntary, hearings level and Appeals Council staff were still required to accommodate representative requests to burn a compact disc (CD) copy of a claim(s) file in many cases.
Therefore, to address a critical need to timely and efficiently process cases, SSA published FRN 81 FR 22697 in 2016 to mandate that a representative use ARS when a claim(s) file is electronic and the representative requests direct payment of a fee.
III. Policy
In general terms, for claims pending at the hearing or Appeals Council levels, an appointed representative must access and obtain electronic claim(s) files through ARS in matters for which he or she requests direct fee payment. Except in limited circumstances, SSA will no longer provide a CD copy of the electronic folder to an appointed representative who requests direct payment of fees. See FRN 81 FR 22697. See also the hearing office Standard Hearings Operations Procedure (SHOP) section 3.2.13.
In situations involving multiple representatives, the mandate applies to the principal representative, and OHO and OAO staff will not provide a CD copy of the claim(s) file to a secondary representative who is associated with the same Employer Identification Number (EIN) as the principal representative. Instead, when a copy is needed, an affiliated secondary representative must arrange to obtain a copy of the claim(s) file from the principal representative.
There are also some limited exceptions to the mandate. Most significantly, even when a representative is requesting direct payment, the representative need not access the electronic claim(s) file through ARS when:
Case characteristics, systems, or technology limitations preclude online access to the electronic claim(s) file; and
Technology limitations do not permit a representative to register for ARS (e.g., no cell phone coverage).
NOTE:
Although the rule announced in the FRN changed how certain representatives must access the file, it did not change an appointed representative's right to review the information in the claim(s) file (see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-35) or a representative's right to request a fee for his or her services. Additionally, it has no impact on a claimant's right to request a CD copy of his or her claim(s) file. However, if OHO or OAO staff observes that claimants associated with a particular representative frequently request CD copies of their files and the behavior appears directed by the representative, staff will evaluate whether to refer the representative for possible non-compliance with the ARS mandate. See section IV.C. below.
IV. Procedures
The following actions are necessary only when an appointed representative requests a CD copy of the claim(s) file. Additionally, the following instructions presume that OHO or OAO staff has already taken appropriate action to determine the person requesting a CD is properly appointed as a representative on the claim(s).
NOTE:
Though these instructions focus on CDs requested prehearing, the instructions also apply to CDs requested at the time of a hearing or after the hearing. If a CD is requested on the date of a scheduled hearing, OHO or OAO staff will burn a CD to avoid a delay of the hearing. However, when these instructions are applicable, OHO or OAO staff will remind the representative of the obligation to access the folder through ARS and ask why the representative did not bring a copy of the file to the hearing. If the representative refuses to provide a reason or if it otherwise appears that the representative is not complying with the FRN, OHO or OAO staff will document the information on a form SSA-5002, “Report of Contact,” and follow the procedures in IV.C. below.
A. Evaluate Whether Representative Requests Direct Payment
1. Only One Appointed Representative
First, OHO or OAO staff will assess whether the representative is eligible for direct payment of a fee by reviewing RASR. When the representative uses a form SSA-1696, “Appointment of Representative,” to establish an appointment in a case, OHO or OAO staff can easily assess a request for direct payment of a fee by reviewing whether the representative marked the relevant checkboxes. However, when an appointed representative uses a writing other than a form SSA-1696 to establish the appointment (see Program Operations Manual System GN 03910.040), OHO or OAO staff will presume any attorney representative is requesting direct payment, unless the writing specifically waives direct payment of a fee. If the representative is a non-attorney requesting direct payment of a fee, OHO or OAO staff will verify his or her eligibility for direct payment using the RASR EDPNA Query.
If a representative is not requesting direct payment of a fee, OHO or OAO staff will burn a CD copy of the claim(s) file and provide it to the representative. Otherwise, OHO or OAO staff will proceed with the next step, outlined in section IV.B.1. below.
2. Multiple Representatives
When multiple representatives are appointed and a secondary representative requests a CD, OHO or OAO staff will determine whether an exclusion to the FRN applies based on the status of the principal representative:
If the principal representative is eligible for and is requesting direct payment of a fee, and is registered for access through ARS, no exclusion applies. OHO or OAO staff will continue with the procedures outlined in section IV.B.2. below.
If the principal representative is eligible for and is requesting direct payment of a fee, but has not registered for access through ARS, an exclusion to the FRN applies for any secondary representative. In this situation, OHO or OAO staff will burn a CD copy of the claim(s) file for any secondary representative on request. OHO or OAO staff will then contact the principal representative and remind the representative of the mandate for accessing the claim(s) file through ARS when requesting direct payment of a fee. OHO or OAO staff will also provide the representative with instructions on registering for ARS.
If the principal representative is not eligible for or has waived direct payment of a fee in the particular case, an exclusion to the FRN applies for any secondary representative. Because the mandate does not apply to the principal representative, OHO or OAO staff will burn a CD copy of the claim(s) file for any secondary representative on request, even if the secondary representative is eligible for and is requesting direct payment of a fee.
B. Notify the Representative of the Requirement to Access the Claim(s) File Through ARS
1. Only One Appointed Representative
If no exceptions to the mandate apply, a representative who requests direct payment of a fee and is registered for ARS must access the claim(s) file through ARS. On receipt of a request for a CD, OHO or OAO staff will notify the representative that OHO or OAO will not provide a CD and he or she must access the claim(s) file through ARS. OHO or OAO staff will associate any written correspondence with the claim(s) file and document any verbal communications on an SSA-5002.
For representatives who request direct payment but are not registered for ARS, OHO or OAO staff will burn a CD the first time the representative requests a CD. However, when sending the CD to the representative, OHO or OAO staff will send a cover letter advising the representative that he or she must register for and access a claim(s) file through ARS in each case for which he or she requests direct payment of a fee. With the notice, OHO or OAO staff will also provide the representative with instructions on registering for ARS.
If OHO or OAO staff observes that the same representative continues to request CDs in cases for which he or she also requests direct payment, OHO or OAO staff will document examples of non-compliance with the FRN and follow the instructions in section IV.C. below.
2. Multiple Representatives Appointed Simultaneously
a. General Rule
In situations where more than one representative is appointed simultaneously, and the principal representative is under the mandate to access the claim(s) file through ARS, OHO or OAO staff will generally assume that a secondary representative who is associated with the same law firm or entity as the principal representative is using the same EIN as the principal representative. In this situation, OHO or OAO staff will notify the secondary representative that he or she must obtain a copy of the claim(s) file from the principal representative.
NOTE:
Some representatives in the same law firm or entity have different mailing or business addresses. Even in this scenario, OHO or OAO staff will presume the representatives are using the same EIN unless otherwise informed by the representative.
As stated in 20 CFR 404.1740(a)(2) and 416.1540(a)(2), all representatives are under an obligation to be forthright in their dealings with SSA. Therefore, if a secondary representative who is affiliated with the principal representative's law firm or entity notifies OHO or OAO staff that he or she is requesting a fee using a different EIN than the principal representative, OHO or OAO staff will generally accept the assertion and burn a CD for the secondary representative. If it appears or later becomes apparent that a representative was or is not being entirely forthright, see section IV.C. below for the procedures to follow when there is possible non-compliance with the ARS mandate.
b. Secondary Representative Cannot Obtain Copy From Principal Representative
When a principal and secondary representative are affiliated under the same EIN, the secondary representative may notify OHO or OAO staff of legitimate extenuating circumstances that prevent him or her from obtaining a copy of the claim(s) file from the principal representative. Some examples of extenuating circumstances include:
The principal representative is out of the office on unexpected or extended leave;
The principal representative is unable to access the claim(s) file electronically; or
The secondary representative is in a different location than the principal representative and despite numerous attempts, the secondary representative has been unable to secure a copy of the claim(s) file from the principal representative. (When a principal representative is not complying with the FRN, see section IV.C. below.)
When a principal and secondary representative are not affiliated under the same EIN, the secondary representative may notify OHO or OAO staff of the legitimate circumstances that prevent him or her from obtaining a copy of the claim(s) file from the principal representative.
At the hearing level, the Hearing Office Director (HOD), or his or her designee, will evaluate the request. At the Appeals Council, the Executive Director's Office will designate staff to evaluate the request. When legitimate extenuating circumstances exist, OHO or OAO staff will burn a CD copy for the secondary representative.
The HOD, or his or her designee, or the OAO Executive Director's designated staff, will instruct OHO or OAO staff not to burn a CD if it becomes clear the representative is requesting a CD merely because it is inconvenient to obtain a copy from the principal representative. For example, when the FRN applies, it is not a legitimate extenuating circumstance simply that the principal and secondary representatives are located at different business addresses. Rather, the secondary representative's request should explain how, despite numerous attempts to obtain a copy from the principal representative, he or she was unsuccessful.
C. Possible Non-compliance With FRN
Although OHO and OAO staff will not presume non-compliance with the FRN in the following circumstances, OHO and OAO staff may need to further evaluate the situation if staff observes:
A representative requesting direct payment of a fee frequently requests CD copies of claim(s) files;
Claimants affiliated with a particular representative frequently request CD copies of their claim(s) file;
In a multiple representative situation, a secondary representative frequently notifies OHO and/or OAO that he or she is unable to obtain a copy of the claim(s) file from the principal representative; or
Information suggesting that a principal or secondary representative was or is not being entirely forthright with SSA regarding an EIN association.
When any of the above situations are present, OHO and OAO staff will usually evaluate several cases in which the behavior occurred to determine whether there is a pattern of possible non-compliance with the FRN. In some cases, with the approval or assistance of an OHO or OAO manager as needed, OHO or OAO staff may also need to:
Review the “Fee Arrangement” section of the form SSA-1696, in the claim(s) file;
Contact the field office for additional representative fee payment information; or
Contact the principal and secondary representatives individually to request a copy of the form SSA-1696 submitted in the case.
If it appears a representative(s) is not complying with the FRN, OHO or OAO staff will submit a referral using the procedures in HALLEX I-1-1-50.
NOTE:
Form SSA-1695, “Identifying Information for Possible Direct Payment of Authorized Fees,” Identifying Information for Possible Direct Payment of Authorized Feesis now obsolete and has been incorporated into form SSA-1696. If a form SSA-1695 is received for these purposes, after reviewing the EINs, If received for these purposes, after reviewing the EINs,OHO or OAO will follow the instructions in HALLEX I-1-2-95. OHO staff will follow the instructions in SHOP section 1.3.5.1.
V. Inquiries
OHO staff will direct all program-related and technical questions to appropriate regional office support staff. Regional offices may refer questions or unresolved issues to the appropriate headquarters contact.
OAO staff and adjudicators will direct any program-related or technical questions to the Executive Director's Office.