Background

This transmittal introduces new chapter I-2-10 in the Hearings, Appeals and Litigation Law (HALLEX) manual titled “Fraud, Similar Fault, and Administrative Sanctions.” The chapter includes instructions for administrative law judges (ALJ) when adjudicating cases involving an issue of fraud or similar fault, as well as instructions on processing an administrative sanction case. All sections in chapter 10 are new.

Explanation of Content and Changes

I-2-10-1 – This new section titled “Overview” includes basic references to definitions and outlines an ALJ's responsibility in fraud, similar fault, and administrative sanction cases. The section also explains that, absent unusual circumstances, an ALJ must avoid ex parte communication with an Office of the Inspector General (OIG) agent or witness.

I-2-10-2 – We titled this new section “Acknowledging a Request for Hearing When Investigative Evidence Is In the Record.” In the section, we explain that the hearing office will notify a claimant if his or her file has evidence from OIG or a Cooperative Disability Investigations Unit (CDIU).

I-2-10-3 – This new section, titled “Receipt of the Investigative Report While Request for Hearing Is Pending,” explains that the claimant and appointed representative, if any, have the right to review evidence from OIG or a CDIU before the hearing.

I-2-10-4 – In a new section titled “Claimant Asks to Review Investigative Evidence,” we explain that a claimant is entitled to review all evidence in the file, including a surveillance video from OIG or a CDIU.

I-2-10-6 – In a new section titled “Notice of Hearing,” we explain that a claimant must be given notice if an ALJ is considering disregarding evidence on the basis of fraud or similar fault. Additionally, we explain that an ALJ must give notice if a Special Agent, law enforcement officer, or other witness with knowledge relating to an OIG investigation will testify at the hearing. We also provide language to use in a notice of hearing if an ALJ is considering reopening and revising a prior determination or decision based on fraud or similar fault.

I-2-10-8 – This new section, titled “Office of the Inspector General (OIG) Agents or Others as Witnesses at a Hearing,” explains when and how an ALJ may request that an OIG agent or other individual testify at a hearing.

I-2-10-10 – The new section titled “Considering Evidence When Fraud or Similar Fault Is Involved” explains when an ALJ will consider disregarding evidence or consider evidence from another claim(s) file. We also provide instructions for identifying evidence submitted by OIG or a CDIU, explain that disregarded evidence is associated with the record, and note the effect of disregarding evidence.

I-2-10-14 – In the new section titled “Writing a Decision When Fraud or Similar Fault Is at Issue” we provide instructions for drafting decisions in cases involving an issue of fraud or similar fault. We explain that an ALJ must identify in the decision any evidence that is disregarded, the authority for disregarding evidence, and the standard of proof used in determining whether to disregard the evidence in question.

I-2-10-16 – The new section titled “Administrative Sanction Cases” explains when an individual may be subject to a penalty. We state when an administrative sanction case may be before an ALJ and how the ALJ will process the case.

Date: May 13, 2014