I-5-4-74.Implementation of the Hicks Acquiescence Ruling (Sixth Circuit)
Last Update: 11/4/24 (Transmittal I-5-474-1)
| Purpose | |
| Background | |
| When Hicks AR Applies | |
| AC Hicks Court Remands — Procedures | |
| Hearings Level Procedures | |
| ALJ Final Decision After Hicks Court Remand – AC Procedures | |
| Civil Action filed after Final Decision | |
| Case Processing in Other Cases Where the Hicks AR is Applicable | |
| Subsequent Applications | |
| Inquiries | |
| OIG Section 1129(l) Referral | |
| Plea Agreements and Verdict | |
| OIG Affidavit | |
| Huntington Overpayment Notice | |
| Acknowledgement Letter | |
| Notice of Hearing | |
| Exhibit Letter |
ISSUED: March 13, 2020
REVISED: November 4, 2024
I. Purpose
This Temporary Instruction provides guidance for implementing Social Security Acquiescence Ruling (AR) 19-1(6), Hicks v. Commissioner of Social Security: Disregarding Evidence During Redeterminations under Sections (205)(u) and 1631(e)(7) of the Social Security Act (Hicks AR). The Commissioner of Social Security published the AR in the Federal Register on February 4, 2020, and it became effective on the date of publication.
II. Background
Plaintiff Amy Jo Hicks and the plaintiffs in several other cases that were consolidated for the purposes of appeal applied for and were awarded disability insurance benefits or payments under title II of the Social Security (Act) or Supplemental Security Income (SSI) based on disability under title VIII or XVI of the Act, after being represented by attorney Eric C. Conn or his law firm who provided evidence on their behalf. After the plaintiffs and nearly 2,000 other claimants had been found disabled and entitled to or eligible for benefits or payments, the Office of Inspector General (OIG) informed the Social Security Administration (SSA) in accordance with section 1129(l) of the Act that it had reason to believe fraud was involved in the applications and providing of evidence.
In April 2016, after an extensive investigation by multiple United States government agencies, a Federal Grand Jury in the Eastern District of Kentucky indicted facilitators Eric C. Conn, now-deceased Administrative Law Judge (ALJ) David Black Daugherty, and Alfred Bradley Adkins, Ph.D. (Dr. Adkins) on various counts, including Conspiracy, Wire Fraud, and Making False Statements to SSA. Mr. Conn later pleaded guilty to several counts, including Theft of Government Money and Paying Illegal Gratuities. Now-deceased ALJ Daugherty pleaded guilty to two counts of Receipt of Illegal Gratuities and Dr. Adkins was found guilty of several counts following a jury trial. The fraud scheme involved disability applications for individuals represented by Mr. Conn or his law firm. Based on these criminal convictions, the district court sentenced each defendant to terms in Federal prison for their respective roles in the fraud scheme. For a copy of the OIG affidavit, plea agreements, and verdicts, see Attachments 2 and 3.
Under section 1129(l) of the Act, as soon as OIG has reason to believe that fraud was involved in the application(s) of an individual for monthly insurance benefits under title II or for payments under title VIII or XVI, OIG will make available information identifying the individual(s) to SSA and general information about the conduct at issue. OIG will provide this information to the agency unless a prosecutor with jurisdiction over potential or actual related criminal cases certifies in writing that providing the information or redetermining entitlement of a beneficiary or the eligibility of a recipient would jeopardize the criminal prosecution of any person who is a subject of the investigation from which the information was derived.
On July 2, 2014, OIG notified SSA of specific closed cases that it had reason to believe involved fraud in the individuals' applications for benefits under title II or payments under title XVI. However, OIG also noted that it was providing the names with the understanding that SSA would not take any adverse action against any individual(s) on the list until later notified. On May 12, 2015, OIG referred cases to SSA under section 1129(l) of the Act and indicated it had no objection to proceeding with processing the cases. See Attachment 1. Because OIG has reason to believe that fraud was involved in certain cases where Eric C. Conn or his law firm was the appointed representative, SSA is required under sections 205(u) and 1631(e)(7) of the Act to take action in the cases identified by OIG.
As required by sections 205(u) and 1631(e)(7) of the Act, SSA redetermined entitlement of beneficiaries or the eligibility of recipients referred to the agency by OIG. During the redeterminations, the agency held new hearings and, in each case, disregarded evidence OIG told SSA that it had reason to believe involved fraud. In conducting plaintiffs' redeterminations, the agency considered the rest of the evidence in plaintiffs' claim(s) files, any new and material evidence related to the relevant period that plaintiffs submitted, and arguments regarding each plaintiff's entitlement to disability insurance benefits or eligibility for SSI payments based on disability.
Plaintiffs argued that, during the redeterminations, they should have been given the opportunity to show that fraud was not involved in providing evidence in their claims.
On November 28, 2018, a divided panel of the United States Court of Appeals for the Sixth Circuit concluded that, before disregarding evidence during a redetermination, the agency must provide a factual basis for the reason to believe fraud is involved in providing evidence, and plaintiffs must have a chance to rebut the agency's assertions before a neutral decisionmaker. Hicks v. Commissioner of Social Security, 909 F.3d 786 (6th Cir. 2018).
Based on prior policy, when OIG referred cases to SSA because there was reason to believe fraud was involved in the application(s) and in the provision of evidence, and the agency disregarded evidence, the agency did not consider the affected individual's objection to disregarding the evidence. The Court of Appeals' decision differs from prior agency policy because it held that prior to the disregarding of evidence under sections 205(u) and 1631(e)(7) of the Act, SSA must provide the affected individual the opportunity to challenge the disregarding of that evidence. Accordingly, AR 19-1(6) was issued because the court's holding conflicts with SSA's prior policy. For current policy, see Social Security Ruling (SSR) 22-1p: Titles II and XVI: Fraud and Similar Fault Redeterminations Under Sections 205(u) and 1631(e)(7) of the Social Security Act and SSR 22-2p: Titles II and XVI: Evaluation of Claims Involving the Issue of Similar Fault in the Providing of Evidence.
Additionally, in November 2018, the Department of Justice announced that the United States District Court for the Eastern District of Kentucky had appointed independent receivers (Receivers) to collect and distribute evidence identified in the office of the plaintiffs' former representative, Eric C. Conn, following his arrest and subsequent conviction and incarceration. In all cases in which the Hicks AR applies, individuals will have the opportunity to submit evidence obtained from the Receivers.
III. When Hicks AR Applies
The Hicks AR applies to decisions under sections 205(u) and 1631(e)(7) of the Act, made on or after February 4, 2020, in which the affected individual resides in Kentucky, Michigan, Ohio, or Tennessee at the time of the redetermination decision at the hearings level.
NOTE 1:
This AR may also apply to redeterminations conducted for individuals residing in Kentucky, Michigan, Ohio, or Tennessee between November 21, 2018, the date of the Court of Appeals' decision, and February 4, 2020, the effective date of the AR. That is, under 20 CFR 404.985(b)(2) and 416.1485(b)(2), a beneficiary or recipient may request application of the Hicks AR when the agency made a decision during a redetermination under sections 205(u) and 1631(e)(7) of the Act between November 21, 2018 and February 4, 2020.
Federal courts remanded cases in accordance with Hicks under sentence four of section 205(g) of the Act (“Hicks court remands”). SSA will apply these instructions to the remanded cases, and to any other cases where the Hicks AR applies, including cases pending before the Appeals Council (AC).
NOTE 2:
For individuals that fall under the Johnson 1 category (Johnson 1), covered by the Johnson settlement agreement, in order to receive a new hearing, the individual must agree to the hearing procedures under SSR 22-1p and SSR 22-2p. See Hearings, Appeals and Litigation Law (HALLEX) manual I-5-6-16. Because SSA is applying SSR 22-1p and SSR 22-2p, AR 19-1(6) and HALLEX I-5-4-74 are not applicable in the Johnson 1 cases.
IV. AC Hicks Court Remands — Procedures
A. General
Unless otherwise specified in these instructions, staff in the Division of Civil Actions (DCA) within the Office of Appellate Operations (OAO) will generally follow the guidance in HALLEX I-4-6 for processing the Hicks court remands.
The AC must remand all cases for additional proceedings in accordance with the court orders. Therefore, the AC cannot issue decisions in cases remanded for further administrative actions.
All cases remanded to the Commissioner for further administrative actions in accordance with Hicks must be reviewed by the AC and cannot be processed under HALLEX I-4-6-25 (i.e., the Accommodations Signature process).
B. Notification of Hicks Court Remand
The Office of the General Counsel (OGC) will provide DCA a list of Hicks court remands to process once DCA receives the cases in the Legal Automated Workflow System (LAWS).
All court remands should be under sentence four of section 205(g) of the Act. If the court remand is under sentence six, DCA staff will notify their branch chief. The branch chief will place the case in “Development Pending” (DEVP) status in the Appeals Review Processing System (ARPS) with a remark and send an email to the Executive Director's Office (EDO) with “Hicks Court Remand” as the subject line. The ARPS remark and body of the email will note that DCA was notified of a sentence six Hicks court remand.
C. Checking ARPS Case Characteristics
All Hicks court remands must contain the HKS4 and WVRD case characteristics in ARPS. Cases where the Hicks AR is applicable, but were not remanded by the court in accordance with Hicks, may be identified with the case characteristic HCKS, per subsection VIII., below.
DCA staff will ensure the case characteristic HKS4 for sentence four court remands is included on the case in ARPS.
DCA staff will also check to see if the WVRD – West Virginia Redetermination case characteristic is present on the court remand record in ARPS.
NOTE:
If a Hicks court remand does not have the case characteristics WVRD or HKS4, or has any open Huntington case characteristics, including the case characteristic HCKS, WVR2, WVDD, or WVAN, DCA staff will consult with the EDO by sending an email to verify whether the case requires processing under these instructions.
D. AC Remand Order
Upon receipt of a sentence four Hicks court remand, the AC will issue a remand order instructing an ALJ to conduct a hearing and issue a new decision on the issue of disability during the period on or before the date of the original allowance.
The AC remand order will specifically note that the ALJ will:
Conduct supplemental proceedings consistent with AR 19-1(6), including holding a hearing;
Determine whether there is reason to believe fraud or similar fault was involved in the providing of evidence in support of the beneficiary's or recipient's application(s) for disability benefits or payments; and
Consider all evidence that is new, material, and related to the period at issue, including evidence the beneficiary or recipient obtained from the Receivers previously associated with their file in the office of their former representative, Eric C. Conn.
NOTE:
HALLEX I-1-10-50 and I-1-10-55 instruct that when the AC processes a court-initiated or voluntary remand, the AC remand order will direct consolidation of the claim(s) pending with the AC with any subsequent claim(s) if the claims involve a common issue. However, if the beneficiary or recipient filed a subsequent claim(s), the redetermination claim cannot be consolidated with the new claim(s) (see Program Operations Manual System (POMS) DI 12045.010A). The claim(s) generally cannot be consolidated because there is no “common issue” as defined in POMS (i.e., there are different issues and time periods involved in the redetermination claim and the subsequent application(s)).
E. Routing of Hicks AC Remand Orders
The Special Review Cadre (SRC) (5ZU) in the Office of Hearings Operations (OHO) has been assigned to process all AC remand orders for cases requiring additional administrative actions under AR 19-1(6). When closing out a case in ARPS, DCA staff will need to ensure that the remand is routed to the SRC in OHO and not the Huntington, West Virginia hearing office (HO) or the originating HO.
DCA staff will update the HO code under “Final Routing Information” to 5ZU for both title II routing and/or title XVI routing, as applicable, when closing the case in ARPS. For paper cases, DCA will mail the claim(s) file to the following address:
Social Security Administration
Special Review Cadre
1718 Woodlawn Drive
Woodlawn, MD 21207
Designated SRC staff will receive daily caster reports informing them of remanded cases.
V. Hearings Level Procedures
A. General
ALJs must issue decisions in cases remanded for further administrative actions under AR 19-1(6). Under no circumstances can ALJs dismiss the requests for hearing in these cases. If the beneficiary or recipient fails to appear and does not establish good cause, or waives or constructively waives the right to appear at the hearing, the ALJ will issue an on-the-record decision. The ALJ may choose to proceed with the hearing if witness testimony is necessary to resolve the case. If an appointed representative appears without the beneficiary or recipient, the ALJ will allow the appointed representative to question witnesses and make arguments on the beneficiary's or recipient's behalf, subject to the instructions in subsection V.D. below.
NOTE:
In all cases, the ALJ will consider the claim(s) only through the date of the original allowance (i.e., the date of the ALJ decision that originally awarded benefits or payments).
B. Overpayments
Due to the unique circumstances of the Conn fraud case, the Commissioner has decided the agency will no longer treat benefits or payments paid as a result of Conn's fraud scheme as overpayments. The Commissioner's decision only applies to certain former clients of Eric C. Conn who have or will receive a fraud or similar fault redetermination hearing and decision.
NOTE:
The overpayment relief described in HALLEX I-5-4-74, I-5-6-2, I-5-6-10, I-5-6-11, and I-5-6-12 does not apply to benefits/payments received under the Johnson settlement agreement.
For all cases pending, closed, or remanded by the AC, the SRC will mail the individual a Huntington Overpayment Notice. See Attachment 4 for a sample Huntington Overpayment Notice. SRC staff will associate a copy of the overpayment notice in Part B- Jurisdictional Documents/Notices (red tab) of the claim(s) file.
C. Reason to Believe Standard
In processing court remands under AR 19-1(6), the ALJ is required to make specific findings on whether there is reason to believe that fraud or similar fault was involved in the providing of evidence in support of the beneficiary's or recipient's application(s) for disability benefits or payments. See SSR 22-1p, SSR 22-2p, and HALLEX I-1-3-15 C.1. for the definition of “reason to believe.”
In determining if there is reason to believe fraud or similar fault exists, the ALJ may consider, among other evidence, the OIG affidavit, relevant plea agreements, and verdicts.
Adjudicators may make reasonable inferences based on the totality of circumstances, such as facts or case characteristics common to patterns of known or suspected fraudulent activity. For example, an adjudicator may have a “reason to believe” that a medical source committed similar fault in an individual case if evidence shows that the source has knowingly made “incorrect or incomplete” statements, or concealed information, material to disability determinations in other cases, and the adjudicator can identify like statements (or can reasonably infer that information has been concealed) in the subject case. See sections 205(u)(2) and 1631(e)(7)(A)(ii) of the Act.
For the agency to disregard evidence, it is not necessary that the affected beneficiary or recipient had knowledge of or participated in the fraud or similar fault. For example, adjudicators may find a “reason to believe” that fraud or similar fault was involved in the provision of evidence based on OIG investigative findings regarding sources or suppliers of evidence in support of benefit claims. An adjudicator may also find reason to believe fraud or similar fault was involved in the provision of evidence when an evidence supplier or source has been charged with, convicted of, or admitted to, crimes related to benefit or payment claims.
D. Hearings Level Procedures – Hicks Court Remands
1. General
In the Hicks court remands, ALJs will conduct supplemental proceedings in accordance with AR 19-1(6), and offer the beneficiary or recipient an opportunity for a hearing.
The ALJ will conduct the hearing consistent with the instructions in HALLEX I-2-6 and subsection V.D.5. below.
Subject to the limitations for accepting evidence in 20 CFR 404.935 and 416.1435, the ALJ will admit into the record all evidence that is new, material, and related to the period at issue (see HALLEX I-1-3-25 A).
The ALJ will issue a new final decision. In addition to the issue of disability, the decision must include a specific finding on whether there is reason to believe that fraud or similar fault was involved in the providing of evidence in the beneficiary's or recipient's case. When making a similar fault finding, the ALJ should address the statutory elements of “similar fault” in sections 205(u)(2) and 1631(e)(7)(A)(ii) of the Act. Specifically, the ALJ must identify the factual basis to support the reasonable inference that “an incorrect or incomplete statement” is knowingly made, or “information . . . is knowingly concealed” and explain how the statement or information is material to the agency's determination. See sections 205(u)(2) and 1631(e)(7)(A)(ii) of the Act. The ALJ will also follow the evidentiary and articulation requirements for unexhibited evidence described in subsection V.D.6.b. below.
2. Proffer of OIG Affidavit
Upon receipt of the AC remand order, SRC staff will send the beneficiary or recipient and appointed representative, if any, an acknowledgment letter (see Attachment 5). With this letter, SRC staff will proffer the OIG affidavit as well as any other evidence related to the issue of whether fraud or similar fault was involved in the providing of evidence (see Attachment 3). The OIG Affidavit will contain the factual basis for the OIG's investigation and the reason to believe that fraud was involved in the application(s) or in the providing of evidence.
The acknowledgment letter will:
Provide the beneficiary or recipient and appointed representative, if any, the opportunity to submit written objections to the proffered evidence at least 5 business days before the scheduled hearing;
Provide the beneficiary or recipient and appointed representative, if any, the opportunity to submit a written request to the ALJ, no later than 30 days after receipt of the acknowledgment letter, explaining why it is necessary that an OIG witness appear at the hearing; and
Request the beneficiary or recipient and appointed representative, if any, inform or submit to us all evidence that is new, material, and related to the period on or before the date of the original allowance no later than 5 business days before the scheduled hearing. This evidence may include evidence the beneficiary or recipient obtained from the Receivers previously associated with their file in Eric C. Conn's office.
SRC staff will associate a copy of the acknowledgment letter with the B section of the claim(s) file.
3. Notice of Hearing
To provide notice of the hearing, the ALJ will send the beneficiary or recipient and the appointed representative, if any, the Notice of Hearing in Attachment 6.
If the ALJ determines testimony from an OIG witness is necessary, the Notice of Hearing will inform the beneficiary or recipient and appointed representative, if any, of the identity of any OIG witness who OIG intends to have appear at the hearing. See HALLEX I-2-10-6 B.
The Notice of Hearing will also inform the beneficiary or recipient and appointed representative, if any, of the right to request that the ALJ issue a subpoena for any other witnesses or documents pursuant to HALLEX I-2-5-78.
SRC staff will associate a copy of the notice with the B section of the claim(s) file.
4. Evidence
Prior to the hearing, the SRC will also send the beneficiary or recipient and appointed representative, if any, an Exhibit Letter (Attachment 7) proposing the exhibits at issue for the hearing.
Subject to the limitations for accepting evidence in 20 CFR 404.935 and 416.1435, an ALJ conducting a hearing under AR 19-1(6) will generally consider and admit into the record evidence that is new, material, and relates to the period at issue in the redetermination decision.
Evidence is new if is not part of the claim(s) file as of the date of the redetermination decision.
Evidence is material if it is relevant, i.e., involves or is directly related to issues adjudicated by the ALJ in the redetermination decision.
Evidence is related to the redetermination period if the evidence is dated on or before the date of the original allowance decision, or post-dates the original allowance decision but is reasonably related to the time period adjudicated in the original allowance decision (e.g., a medical source may submit a statement that specifically addresses the time period at issue).
The ALJ will also consider and admit into the record any evidence submitted that is related to the issue of whether there is reason to believe that fraud or similar fault was involved in providing evidence in support of the beneficiary's or recipient's application(s) for disability benefits or payments. This includes the OIG affidavit and all rebuttal arguments and statements submitted by the beneficiary or recipient and their appointed representative, if any. SRC staff will associate evidence related to the fraud or similar fault issue in the D section of the claim(s) file.
5. Conduct of Hearings
a. General
The ALJ will conduct the hearing in accordance with HALLEX I-2-6, except as otherwise specified below.
b. Testimony of Beneficiary or Recipient and Witnesses
The ALJ determines the subject and scope of testimony from a beneficiary or recipient and any witness(es), as well as how and when the person testifies at the hearing (HALLEX I-2-6-60 A).
The beneficiary or recipient and appointed representative, if any, have the right to question witnesses to inquire fully into the matters at issue.
As described in HALLEX I-2-10-8, OIG witnesses may be asked to testify at ALJ hearings if necessary for a full and fair inquiry into the issues. The acknowledgment letter will inform the beneficiary or recipient and appointed representative, if any, of the right to request an OIG witness to appear. If the ALJ determines testimony from an OIG witness is necessary, the ALJ will send a written memorandum requesting the appearance of an OIG witness to the designated OIG email address. The memorandum will explain the reason for the request, provide the date and time (including time zone) of the requested appearance, and state the manner of appearance. A copy of the memorandum will be added to the B section of the claim(s) file. To the extent practical, ALJs will request OIG witness appearances by audio, agency video, or online video. See 20 CFR 404.936(c)(2) and 416.1436(c)(2).
Testimony from an OIG witness will be in accordance with HALLEX I-2-6-60 with additional considerations as described below.
At the hearing, the ALJ must advise the beneficiary or recipient and appointed representative, if any, that the OIG witness's testimony is limited to the OIG investigative fact-finding that, based on the totality of the circumstances, there was reason to believe that fraud was involved in the application(s) or in the providing of evidence and explain the procedures all participants will follow. The OIG witness will only attend the portion of the hearing relevant to their testimony. All OIG witness testimony must be on the record. After administering the oath or affirmation, the ALJ must:
State that OIG witness testimony will cover the OIG investigative fact-finding that, based on the totality of circumstances, there was reason to believe that fraud was involved in the application(s) or in the providing of evidence and supplemental information provided in the OIG Affidavit;
Ask the OIG witness to briefly describe their experience and professional qualifications;
Verify the OIG representative has examined the OIG Affidavit;
Ask the beneficiary or recipient and the appointed representative, if any, whether they have any objection(s) to the OIG witness testifying; and
Rule on any objection(s). The ALJ may address the objection(s) on the record during the hearing, in narrative form as a separate exhibit, or in the body of their decision.
The beneficiary or recipient and the representative will then have the right to question the OIG witness fully as to whether, based on a totality of the circumstances, there was reason to believe fraud was involved in the application(s) or in the providing of evidence. For example, relevant questioning may include:
The OIG witness's qualifications and experience;
The OIG witness's involvement in the investigation;
The facts of the fraud scheme discovered during OIG's investigation;
The criminal convictions of those involved in the fraud scheme;
The “totality of the circumstances” standard and the identifiers used as a threshold for the consolidated referrals; and
The approximate number of cases referred.
The ALJ will determine when the beneficiary or recipient and the representative may question the OIG witness and whether the questions asked, or answers given, are appropriate.
The ALJ is not required to permit testimony that is repetitive or cumulative, unrelated to the matters at issue in the hearing, or allow questioning that has the effect of intimidating, harassing, or embarrassing the witnesses (HALLEX I-2-6-60 B).
6. Decisions
ALJs must issue decisions in cases remanded for further administrative actions in accordance with AR 19-1(6). Under no circumstances can ALJs dismiss the requests for hearing in these cases.
a. Format and Content of Decisions
The format and content of the decision will follow the instructions in HALLEX I-2-8-25 except as described below.
The decision must include specific findings on the following issues:
Whether there is reason to believe that fraud or similar fault was involved in providing evidence in support of the beneficiary's or recipient's application(s) for disability benefits or payments; and
If the beneficiary or recipient and appointed representative, if any, submitted evidence, whether the evidence submitted is new, material, and related to the period at issue.
The ALJ will specifically note in the decision that the beneficiary or recipient may request AC review of the ALJ's finding that there was reason to believe that fraud or similar fault was involved in the provision of evidence.
b. Articulation Requirements for Unexhibited Evidence
If the ALJ concludes evidence submitted by the beneficiary or recipient and appointed representative, if any, in connection with the hearing is not new, material, and related to the period at issue, or if there is not good cause for having submitted evidence less than five days prior to the hearing, the ALJ will include the following language in the decision, where applicable, specifically identifying the additional evidence (by source, date range, and number of pages) and the reason for not exhibiting it:
I find that you did not have good cause for why you missed informing us about or submitting this evidence earlier. I did not exhibit this evidence.
This evidence is not new because it is a copy of Exhibit(s) [Number]. I did not exhibit this evidence.
This evidence is not material because it is not relevant to your claim(s) for disability or the issue of whether there is reason to believe that fraud or similar fault was involved in the providing of evidence in your case. I did not exhibit this evidence.
This evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled during the period of your prior allowance.
SRC staff will not exhibit this evidence. However, SRC staff will associate a copy of the evidence in the appropriate section of the claim(s) file, placing all medical evidence in the F section. This evidence must be clearly described in the metadata (i.e., complete the Note, Source, and Date To and From fields).
7. Routing
The Mid-America Program Service Center (MAMPSC) (754) is handling the processing of all payment matters relating to redeterminations in the Hicks court remand cases. When the ALJ issues a redetermination decision, regardless of whether it is favorable or unfavorable, SRC staff will update the HO code under “Final Routing Information” to 754 in the Case Processing Management System (CPMS) and/or the Hearings and Appeals Case Processing System (HACPS) to reroute the case to MAMPSC. SRC staff will also notify MAMPSC via email at ^MAMPSC HWV Notification, using the subject line “OHO Redetermination Decision – Hicks Case” and include the following message in the text of the email.
An ALJ has issued a redetermination decision on a Huntington case for [individual's name (SSN: ###-##-####)]. The [unfavorable/favorable] decision is [attached/in eView/in ENM]. Please take any necessary action to [cease/initiate] payment in this case and notify any other PSC that may be affected by this action. Thank you.
NOTE:
Sending an email to MAMPSC is critical to ensure the proper and prompt effectuation of these decisions. For example, if SRC staff mistakenly neglects to change the DOORS code, CPMS or HACPS will generate an automated alert to the PSC with jurisdiction over the beneficiary's or recipient's Social Security number. MAMPSC needs to be notified immediately so it can notify the other PSC of the change in jurisdiction.
Send paper claim(s) files requiring further action by MAMPSC to:
Social Security AdministrationMid-America Program Service Center
Attn: Redetermination Staff, DO NOT OPEN IN THE MAILROOM
P.O. Box 15427
Kansas City, MO 64106
VI. ALJ Final Decision After Hicks Court Remand – AC Procedures
A. Processing Exceptions
In cases remanded for further administrative actions under AR 19-1(6), ALJs will issue new final decisions.
As explained in 20 CFR 404.984(b) and 416.1484(b), and HALLEX I-4-8-20, the beneficiary or recipient may appeal a final ALJ decision after a court remand by filing written exceptions within 30 days of the date of receipt of the ALJ's decision (or within the time allowed if the AC grants an extension of time).
Generally, DCA will handle written exceptions, if any, in ALJ final decisions after Hicks court remands. The AC will process the final decisions as instructed in HALLEX I-4-8, except as otherwise specified below. Designated DCA staff will receive a caster report that will indicate when the SRC has issued a decision on a Hicks court remand.
When reviewing an ALJ final decision after a Hicks court remand, the AC will keep in mind that:
The ALJ may not dismiss the request for hearing under redetermination procedures.
The period at issue in a redetermination case ends with the final and binding decision on the beneficiary's or recipient's application(s) for benefits or payments (i.e., the original allowance date). In a title II-only claim where the date last insured (DLI) is prior to the original allowance date, the period at issue ends on the DLI.
The AC must ensure that the beneficiary or recipient was given proper notice of the issues as described in subsection V.D.3. above.
The ALJ must exhibit all evidence that is new, material, and related to the period at issue. The AC will ensure the decision addresses all unexhibited evidence in accordance with the articulation requirements described in subsection V.D.6.b. above.
If the AC assumes jurisdiction of the ALJ's final decision and remands the case, the AC cannot consolidate the redetermination claim with a subsequent claim under HALLEX I-1-10-60 A.2. The claims cannot be consolidated because there is no “common issue” as defined in POMS (i.e., there are different issues and time periods involved in the redetermination claim and the subsequent application(s)) (see POMS DI 12045.010A).
B. Routing
1. AC Declines to Assume Jurisdiction
If the AC declines to assume jurisdiction of a final unfavorable decision in a Hicks court remand case, DCA staff will release the notice of the declination using its normal business process.
However, if the AC declines to assume jurisdiction of a partially or fully favorable decision in a Hicks court remand case, DCA staff will route the ALJ's final decision to MAMPSC or the relevant effectuating component(s).
2. AC Assumes Jurisdiction
When the AC assumes jurisdiction to issue an unfavorable decision, DCA staff will release the AC decision using its normal business process.
However, if the AC assumes jurisdiction to issue a partially or fully favorable decision, DCA staff will route the AC decision to MAMPSC or the relevant effectuating component(s).
If the AC assumes jurisdiction and remands the case, DCA will release the remand order using its normal business process except that it will ensure remands are routed to the SRC by updating the HO code under “Final Routing Information” to 5ZU for both title II routing and title XVI routing, as applicable, when closing the case in ARPS.
VII. Civil Action filed after Final Decision
If a beneficiary or recipient and appointed representative, if any, seek judicial review of an ALJ's final decision following a Hicks court remand, DCA staff will prepare the certified administrative record (CAR) using the instructions in HALLEX I-4-2 under its normal business processes. However, the CAR must include all unexhibited evidence submitted by the beneficiary or recipient and appointed representative, if any, in the procedural section of the CAR (See HALLEX I-4-2-10), even if the evidence submitted are duplicates of exhibited evidence.
VIII. Case Processing in Other Cases Where the Hicks AR is Applicable
The Hicks AR applies to cases that meet the criteria in subsection III. above. These cases include cases outside the specific Hicks court remands.
A. HO Procedures
The SRC will be handling all cases requiring additional administrative actions under AR 19-1(6). HO staff will ensure that all cases where the Hicks AR applies are routed to the SRC in OHO (5ZU) and not the Huntington, West Virginia HO or another HO. HO staff will send an email to the SRC to alert the SRC of the case transfer. The SRC will follow the instructions set forth in subsection V. above.
When processing other cases where the Hicks AR is applicable, SRC staff will add the case characteristic HCKS – Cases Impacted by Hicks AR to the case in CPMS and/or HACPS and ensure the case is also coded with the appropriate Huntington fraud case characteristic or relevant fraud special case characteristic. If the case is erroneously coded with the case characteristic HKS4, SRC employees will close this case characteristic as it does not apply to cases where the Hicks AR applies but the case is not a specific Hicks court remand.
SRC employees will also follow all applicable guidance in HALLEX I-1-3-25 for processing fraud redeterminations, but employees will refer to AR 19-1(6) and subsection V.D. above on the issue of disregarding evidence.
B. AC Procedures
If an OAO employee has a case where the Hicks AR applies, and the case is not a specific Hicks court remand, the OAO employee will ensure the case has the case characteristic HCKS – Case Impacted by Hicks AR in ARPS and is coded with the appropriate Huntington fraud case characteristic or relevant fraud special case characteristic. If OAO staff believes a case is erroneously coded with the case characteristic HKS4, they will consult with the EDO by sending an email to verify whether the case requires processing under these instructions.
OAO employees processing requests for review, court remands, or final decisions of other cases in which the Hicks AR applies will follow usual processing requirements and keep in mind that:
The ALJ may not dismiss the request for hearing under redetermination procedures.
The period at issue in a redetermination case ends with the final and binding decision on the beneficiary's or recipient's application(s) for benefits or payments (i.e., the original allowance date). In a title II-only claim where the DLI is prior to the original allowance date, the period at issue ends on the DLI.
The AC must ensure that the beneficiary or recipient was given proper notice of the issues as described in subsection V.D.3. above.
The ALJ must exhibit all evidence that is new, material, and related to the period at issue. The AC will ensure the decision addresses all unexhibited evidence in accordance with the articulation requirements described in subsection V.D.6.b. above.
The AC cannot consolidate a redetermination claim with a subsequent claim. The claims cannot be consolidated because there is no “common issue” as defined in POMS DI 12045.010A (i.e., there are different issues and time periods involved in the redetermination claim and the subsequent application(s)).
Additionally, OAO employees will follow all applicable guidance in HALLEX I-1-3-25 for processing fraud redeterminations, but employees will refer to AR 19-1(6) and subsection V.D. above on the issue of disregarding evidence.
IX. Subsequent Applications
A. The Hicks AR
If a subsequent claim(s) file contains evidence from a source associated with the Huntington fraud scheme or another fraud scheme referred to the agency under section 1129(l) of the Act, an adjudicator will not automatically disregard the evidence. Under AR 19-1(6), prior to disregarding evidence, the adjudicator must determine whether there is reason to believe that fraud or similar fault was involved in providing the evidence when the individual resides in Kentucky, Michigan, Ohio, or Tennessee and provide the claimant an opportunity to challenge the disregarding of the evidence.
B. The Earley AR
When adjudicating a subsequent claim where the Earley AR applies, an adjudicator will not consider the findings from a prior final ALJ or AC decision if the decision disregarded evidence without providing the claimant an opportunity to challenge the disregarding of the evidence under AR 19-1(6). See AR 24-1(6), Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018); HALLEX I-5-4-75.A.
The AC will grant review and remand a case if, in applying the Earley AR, the ALJ considered the findings of a prior final ALJ or AC decision that disregarded evidence without providing the claimant an opportunity to challenge the disregarding of the evidence under AR 19-1(6).
X. Inquiries
OHO staff will direct all program-related and technical questions through appropriate management channels.
In OAO, staff and adjudicators will direct any program-related or technical questions to the EDO.