Background

This transmittal amends the Hearings, Appeals and Litigation Law (HALLEX) manual Chapter I-1-1 regarding representative conduct. These changes were necessary to provide better instructions for Office of Disability Adjudication and Review personnel processing representative sanction cases. These provisions include instructions for hearing officers assigned to conduct a hearing when an individual is charged with a violation of the rules governing the conduct of representatives and the Appeals Council (AC) panel assigned to act on a request for review of a hearing officer's decision.

Explanation of Content and Changes

This transmittal revises HALLEX I-1-1-40, I-1-1-50, and I-1-1-60, and adds three new HALLEX sections: I-1-1-52, I-1-1-55, and I-1-1-57.

I-1-1-40 – We made minor formatting changes and added appropriate cross-references to other related HALLEX sections.

I-1-1-50 – We revised the section by limiting the scope to referral procedures and including referral procedures for the AC. We also changed the title of the section to better reflect its new purpose.

I-1-1-50 A – We revised a cross-reference to information that now appears in a new HALLEX section. We added a NOTE in sub-subsection 1.e. to clarify how to make a referral when the representative misconduct is based on a pattern of behavior. We added new instructions in sub-subsection 4. for the AC and staff when a referral for possible representative misconduct may be appropriate.

I-1-1-50 B – We changed the title of the subsection to “OGC Action After Referral” to more accurately reflect the content. We also added a cross-reference to a new HALLEX section.

I-1-1-50 C – We deleted this subsection and moved the information to new section I-1-1-52.

I-1-1-50 D – We deleted this subsection and moved the information to new section I-1-1-55.

I-1-1-50 E – We deleted this subsection and moved the information to new sections I-1-1-52 F.4. and I-1-1-55 A.

I-1-1-50 F – We deleted this subsection and moved the information to new section I-1-1-57 A.

I-1-1-50 G – We deleted this subsection and moved the information to new section I-1-1-57 B.

I-1-1-50 H – We deleted this subsection and moved the information to new section I-1-1-57 C.

I-1-1-52 – We added a new section titled “Hearing on the Charges” to provide detailed instructions for conducting hearings in representative sanction cases.

I-1-1-52 A – We added a new subsection titled “In General” to explain when a hearing may be requested and who are parties to the hearing. We also added a benchmark processing goal.

I-1-1-52 B – We added a new subsection titled “Hearing Officer” to explain how a hearing officer is designated, how the parties are notified, and how to address any objections to the hearing officer designation.

I-1-1-52 C – We added a new subsection titled “Prior to Hearing” to explain issues that may arise or require resolution before the hearing. These issues include information about the right to representation, setting the time and place of the hearing, issuing subpoenas, and handling filings and motions.

I-1-1-52 D – We added a new subsection titled “Hearing Procedures” that specifically addresses how to conduct a hearing in a representative sanction case. These instructions address the record of the hearing, opening statements, oaths or affirmations, evidence, witnesses, oral and written summation, and closed record and additional evidence issues.

I-1-1-52 E – We added a new subsection titled “Failure to Appear at the Hearing” to explain the procedures if either party does not appear at the time and place of the scheduled hearing.

I-1-1-52 F – We added a new subsection titled “Hearing Officer Decision” to clarify what is required of the hearing officer in making and issuing a decision. We explain that dismissals are generally not appropriate. We clarify that the standard of review for a hearing officer is whether the Office of the General Counsel proves the charges by a preponderance of the evidence. We state the options available if a sanction is appropriate. We note the information that should be included in a decision and the effect of a decision. We also provide instruction for handling the official file after a decision is issued.

I-1-1-55 – We added a new section titled “Request for Review Before the Appeals Council” to provide more thorough instruction for the AC when processing requests for review of a hearing officer's decision.

I-1-1-55 A – We added a new subsection titled “In General” that explains the time limits for requesting review. We introduce a benchmark processing goal and the procedures used to avoid ex parte communication at the AC level. We also explain the effective date of the AC decision.

I-1-1-55 B – We added a new subsection titled “Receipt of a Request for Review” to explain how a request for review is initially processed and assigned at the AC level.

I-1-1-55 C – We added a new subsection titled “Dismissing a Request for Review” to explain the limited circumstances in which the AC may dismiss a request for review in a representative sanction case.

I-1-1-55 D – We added a new subsection titled “Granting a Request for Review” that explains the AC's actions when it grants review.

I-1-1-55 E – We added a new subsection titled “Standard of Review” that clearly states the AC uses the substantial evidence standard when reviewing representative sanction cases.

I-1-1-55 F – We added a new subsection titled “Additional Evidence” to explain how the AC handles additional evidence when reviewing a representative sanction case.

I-1-1-55 G – We added a new subsection titled “Oral Argument Proceeding” to provide detailed instructions for the AC when oral argument is requested. This section includes instructions on setting the time and place of the proceeding, making a record of the proceeding, making an opening statement, administering an oath or affirmation, and closing the proceeding.

I-1-1-55 H – We added a new subsection titled “AC Decision” to clarify what the AC considers in making the decision, what is required in the content of the decision, and the effect of the AC's decision.

I-1-1-57 – We added a new section titled “Common Issues After a Suspension or Disqualification” to incorporate information previously contained in section I-1-1-50 regarding fee issues, how suspensions or disqualification are communicated to agency components, and what to do if a sanctioned individual attempts to act as a representative. We added instructions to notify affected claimants when the agency no longer recognizes the individual as a representative and to end the appointment in the appropriate system. We also made minor formatting and editorial changes.

I-1-1-60 B – We revised this subsection by adding the regulatory criteria for reinstating an individual who has been disbarred or suspended from a court or bar, disqualified from participating in or appearing before a Federal program or Federal agency, or disqualified as a result of collecting or receiving and retaining an unauthorized representative fee. We also made language changes to adhere more closely to the regulatory language, deleted an unnecessary NOTE, and made other editorial and organizational revisions.

Date: March 29, 2013