I-5-4-74.Implementation of the Hicks Acquiescence Ruling (Sixth Circuit)
Last Update: 2/18/21 (Transmittal I-5-474)
| Purpose | |
| Background | |
| When Hicks AR Applies | |
| Appeals Council Hicks Court Remands — Procedures | |
| Hearing 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 | |
| Acknowledgment Letter | |
| Notice of Hearing | |
| Exhibit Letter |
ISSUED: March 13, 2020
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 Supplemental Security Income (SSI) based on disability, after being represented by an attorney who provided evidence on their behalf. After the plaintiffs and nearly 2000 other claimants had been found disabled and entitled to or eligible for benefits, the Office of Inspector General (OIG) informed the Social Security Administration (SSA) in accordance with section 1129(l) of the Social Security Act (Act) that it had reason to believe fraud was involved in the applications and providing of evidence. The United States District Court subsequently convicted the plaintiffs' attorney, the administrative law judge (ALJ) who decided the plaintiffs' claims, and a doctor who provided evidence in support of applications of perpetrating a large-scale fraud scheme on the agency. Based on these criminal convictions, the district court sentenced each defendant to terms in Federal prison for their respective roles in the fraud scheme.
As required by sections 205(u) and 1631(e)(7) of the Act, SSA redetermined the entitlement to or eligibility for benefits of the individuals 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' claims files, any new and material evidence related to the relevant period that plaintiffs submitted, and heard argument 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 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).
Under the agency's interpretation of sections 205(u) and 1631(e)(7) of the Act, when OIG refers cases to SSA because there is reason to believe fraud was involved in the application and in the provision of evidence, and the agency disregards evidence, the agency does not consider the individual's objection to disregarding the evidence. The court of appeals' decision differs from agency policy because it held that, when the agency disregards evidence, SSA must provide the affected individual the opportunity to challenge the disregard of evidence. Accordingly, AR 19-1(6) was issued because the court's holding conflicts with SSA's policy.
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 hearing 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 live cases pending before the Appeals Council (AC).
NOTE 2:
Regarding Johnson 1 individuals and as explained in Hearings, Appeals and Litigation Law (HALLEX) manual I-5-6-16, in order to receive a new hearing, a Johnson 1 individual must agree to the hearing procedures under 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, and that the process reflected in SSR 22-1p and SSR 22-2p, and in SSA's implementing rules, policy and guidance, including HALLEX I-1-3-25, satisfies constitutional due process, the Administrative Procedure Act, and the Social Security Act. 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. Appeals Council Hicks Court Remands — Procedures
A. General
Unless otherwise specified in these instructions, the Office of Appellate Operations (OAO) staff in the Division of Civil Actions (DCA) 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 of the 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 the 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 with “ATTENTION: Fraud Team” as the subject. The ARPS remark and body of the email will note that DCA was notified of a sentence six Hicks court remand.
C. Adding and Checking ARPS Case Characteristics
All Hicks court remands must contain the HKS4 and WVRD case characteristics.
On receipt of the court remand, DCA staff will add the case characteristic HKS4 for sentence four court remands to the case in ARPS.
DCA staff will also check to see if the WVRD – Huntington 1 Redeterminations case characteristic is present on the court remand record in ARPS. If not, DCA staff will add the WVRD case characteristic.
In addition, DCA staff will check whether there are any open WVHD, WVR2, WVDD or WVAN case characteristics. DCA staff should close any Huntington case characteristics that are not WVRD or HKS4, including the case characteristic HCKS.
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 or recipient's application for disability benefits; 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 his or her file in the office of his or her 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 a 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 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).
E. Routing of Hicks AC Remand Orders
The Special Review Cadre (SRC) in the Office of Hearings Operations (OHO) will be handling 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 or the originating hearing office.
DCA staff will update the hearing office code under “Final Routing Information” to 5ZU for both Title 2 Routing and/or Title 16 Routing, as applicable, when closing the case in ARPS. For paper cases, DCA will mail the claims file to the following address:
Special Review Cadre
1718 Woodlawn Drive
Woodlawn, MD 21207
Designated SRC staff will receive daily caster reports informing them of remanded cases.
V. Hearing 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 a decision on the record. 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 or recipient's behalf, subject to the instructions in Section V.C. below.
NOTE:
In all cases, the ALJ will consider the claim(s) only through the date of the original allowance, that is, the date of the ALJ decision that originally awarded benefits.
B. 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 or recipient's application for disability benefits.
A “reason to believe” is defined as reasonable grounds to suspect that fraud or similar fault was involved in the application or in the provision of evidence. This standard requires more than a mere suspicion, speculation or a hunch, but it does not require a preponderance of evidence.
NOTE 1:
The “reason to believe” standard does not require a preponderance of evidence that the agency uses in making a fraud or similar fault finding under SSR 16-2p: Titles II and XVI: Evaluation of Claims Involving the Issue of Fraud or Similar Fault in the Providing of Evidence. In other words, it does not require evidence showing that the presence or absence of fraud or similar fault in the provision of evidence in an individual case is more likely than not.
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.
NOTE 2:
Fraud exists when a person, with the intent to defraud, either makes or causes to be made, a false statement or misrepresentation of a material fact for use in determining rights under the Act, or conceals or fails to disclose a material fact for use in determining rights under the Act. See SSR 16-1p: Titles II and XVI: Fraud and Similar Fault Redeterminations Under Sections 205(u) and 1631(e)(7) of the Social Security Act. If an ALJ decides to disregard evidence based solely because fraud was involved in the provision of evidence, the ALJ must provide rationale in the decision clarifying that all elements of the definition of fraud in SSR 16-1p are satisfied.
NOTE 3:
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 a 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 claims.
C. Hearing 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 Section V.C.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 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.C.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 1). 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. 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 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 his or her 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 in Attachment 2.
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 3) 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 (for example, 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 a reason to believe that fraud or similar fault was involved in providing evidence in support of the beneficiary or recipient's application for disability benefits. This includes the OIG Affidavit and all rebuttal arguments and statements submitted by the beneficiary or recipient and his or her 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 whether the appearance is requested in person, via videoteleconferencing (VTC), or by telephone. 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 VTC or telephone. See 20 CFR 404.936(c)(4) and 416.1436(c)(4).
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 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 his or her 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 or in the providing of evidence and supplemental information provided in the OIG Affidavit;
Ask the OIG witness to briefly describe his or her 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 his or her 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 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 or recipient's application for disability benefits; 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 a 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 a 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 file, placing all medical evidence in the F section. This evidence must be clearly described in the metadata (i.e., complete the Note, Source, Date To and From fields).
7. Notification to Effectuating Component
The Mid-America Program Service Center (MAMPSC) 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 manually change the PSC DOORS code in the Case Processing Management System (CPMS) to 754 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.
OHO has issued a redetermination decision for [beneficiary's or recipient's name (SSN: ###-##-####)]. The [unfavorable/favorable] decision is [attached/in eView]. Please take any necessary action 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 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: Redeterminations Staff
P.O. Box 15487
Kansas City, MO 64106
DO NOT OPEN IN MAILROOM
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 or recipient's application for benefits (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 Section V.C.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.C.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) (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 hearing office code under “Final Routing Information” to 5ZU for both Title 2 Routing and Title 16 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 Section III. above. These cases include cases outside the specific Hicks court remands.
A. Hearing Office Procedures
If the case is pending at a hearing office (HO) and is not a Hicks court remand, but the Hicks AR still applies, then the HO should follow the instructions set forth in Section V. above.
When processing other cases where the Hicks AR is applicable, HO staff will add the case characteristic HCKS – Cases Impacted by Hicks AR to the case in the CPMS 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, OHO 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.
OHO 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 Section V.C. above on the issue of disregarding evidence.
B. Appeals Council 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 and is 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, OAO 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.
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 or recipient's application for benefits (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 Section V.C.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.C.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).
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 Section V.C. 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 a state in the Sixth Circuit (Kentucky, Michigan, Ohio, or Tennessee) and provide the claimant an opportunity to challenge the exclusion of evidence.
B. Drummond and Dennard ARs
When adjudicating a subsequent claim where the Drummond and Dennard ARs apply, an adjudicator will not adopt the findings from a prior final ALJ or AC decision if the decision excluded evidence without providing the claimant an opportunity to challenge the exclusion of evidence under AR 19-1(6). See AR 98-3(6), Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990) and AR 98-4(6), Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997); HALLEX I-5-4-62.
The AC will grant review and remand a case if in applying the Drummond and Dennard ARs the ALJ adopted the findings of a prior final ALJ or AC decision that excluded evidence without providing the claimant an opportunity to challenge the exclusion of evidence under AR 19-1(6).
X. Inquiries
HO personnel should direct any questions to the Regional Office (RO).
RO personnel should contact the Division of Field Procedures in the Office of the Chief Administrative Law Judge. Send email requests to OHO OCALJ DFP.
OAO personnel should direct any questions to the Executive Director's Office.