Last Update: 5/19/05 (Transmittal I-1-50)
Citations:
Staff in any OHA office may observe or detect suspected violations of the rules pertaining to a representative's conduct. When this occurs, the staff should fully develop violations, as described below, before referring them to the Office of General Law in the Office of the General Counsel, Representative Conduct and Civil Rights Division, 5107 Leesburg Pike, Suite 1605, Falls Church, VA 22041-3255.
The referring individual should provide in the referral a description of the basis for suspecting a violation and copies of all available substantiating documentation and evidence. To the extent possible, development should include a report briefly describing the basis for the suspected violation with the names, addresses, and telephone numbers of the representative involved, the claimant(s), other contacts with information and any other pertinent information.
Although not required, the referring individual may also provide copies of the referral to his or her respective Hearing Office Chief Administrative Law Judge (ALJ) and Regional Chief ALJ.
The referring office should proceed with its processing of the case and take no further action on the suspected violation unless requested to do so by the Office of General Law, OGC.
The OGL processes all referrals regarding possible initiation of suspension or disqualification proceedings.
When the OGL receives a referral, it will evaluate the suspected violation and determine if further action is required.
If the OGL determines that the representative may have acted in violation of the Social Security Act or regulations and the matter is appropriate for informal resolution, the OGL will prepare a warning letter placing the representative on notice of the potential violation and the penalties for failure to comply with the statute or regulations. The warning letter also will contain instructions for informal resolution of the alleged violation(s).
If the representative complies with the directions given in the warning letter, the investigation may be closed without further action.
If the matter cannot be resolved informally or is inappropriate for informal resolution, or if the representative had previously been advised to cease and desist from engaging in proscribed conduct, the OGL will recommend to the Deputy Commissioner for Disability and Income Security Programs (or other official designated by the Commissioner), or his or her designee, (Deputy Commissioner or designee) that a formal complaint be filed. The Deputy Commissioner or designee will then decide whether a formal complaint will be filed.
If the Deputy Commissioner or designee determines that a complaint should be filed, the OGL will prepare and serve on the representative a notice and complaint containing a statement of the charges, which initiates sanction proceedings against the representative. The complaint will describe with specificity the acts or omissions that constitute the basis for the action, and specify whether the agency is seeking a disqualification or a suspension for a period of one to five years.
The notice advises the representative of his or her right to file within 30 days an answer admitting or denying the factual assertions contained in the complaint, and stating why SSA should not suspend or disqualify him or her from acting as a representative before SSA.
If the representative's answer provides sufficient showing to support withdrawal of the complaint, the OGL will so notify the representative in writing and close the case.
If the representative does not file a timely answer or if the answer does not support withdrawal of the complaint, the matter is referred to the Associate Commissioner for Hearings and Appeals to designate an ALJ to hear and decide the merits of the complaint.
If the representative is an attorney and is disqualified or suspended from acting as a representative, OGL will provide a copy of the final Agency action suspending or disqualifying the attorney to the disciplinary section of the bar association in every State or Territory in which the attorney is admitted to practice.
The hearing on a complaint seeking the suspension or disqualification of a representative is an adversarial action conducted under the rules and procedures set forth in the regulations. At least 20 days before the hearing, the ALJ must send notice of hearing to both parties setting forth the date, time and location of the hearing. The notice of hearing should include requirements and instructions for filing motions, seeking discovery, requesting witnesses, entering exhibits, and may direct the parties to file a prehearing statement of the parties' contentions and the controlling issues of fact and law.
An attorney from the OGC represents SSA at the hearing. The representative may at his or her option be represented by an attorney or other qualified person.
Either party may request the ALJ to issue subpoenas for witnesses and for the production of records, correspondence, or other documents. The ALJ may also issue subpoenas on his or her own initiative for the same purposes.
These hearings are generally not open to the public. Only the parties and any persons the ALJ or the parties consider necessary may attend. The ALJ has the right to regulate the conduct of the hearing and to decide the order in which the evidence will be presented. It is the ALJ's responsibility to inquire fully into the matters at issue, hear testimony and argument, and accept into evidence any documentary items that are relevant and material. Witnesses who testify must do so under oath or affirmation.
If, after due notice, one of the parties does not appear at the scheduled hearing, the ALJ should still conduct proceedings so that the party present may offer evidence. The ALJ shall give the absent party an opportunity to show cause for failing to appear and may hold a supplemental hearing if good cause is established. Without a showing of good cause, the party is deemed to have waived the right to be present at the hearing.
If the representative did not file an answer to the charges, he or she may not present evidence at the hearing. The ALJ may make or recommend a decision on the basis of the record, or permit the representative to submit at the oral hearing a statement about the sufficiency of the evidence or the validity of the proceedings.
The ALJ may reopen the hearing to accept additional evidence when the representative filed an answer, and the ALJ believes that material evidence exists which was not presented at the hearing.
At the close of the hearing, the ALJ shall give the parties the opportunity to present oral or written summations, and to file briefs or other statements about proposed findings of fact and conclusions of law. In all cases, the ALJ must ensure that the oral proceedings are recorded. The ALJ should obtain one original certified transcript for the record, and prepare copies upon request for the parties.
On the basis of the evidence, the ALJ issues a written decision containing findings of fact and conclusions of law.
If the ALJ determines that the charges have been proven, the ALJ will either:
Suspend the representative from further practice before SSA for a specified period of not less than one year and not more than five years from the date of the decision; or
Disqualify the representative from further practice before SSA.
Either party may ask the Appeals Council to review the ALJ's decision. The notice, which transmits the decision, informs the parties of this right and directs the parties to file the request in writing with the Deputy Chair of the Appeals Council within 30 days from the date the decision was mailed. The ALJ's decision is final and binding unless modified by the Appeals Council upon review.
Upon receipt of a request for review, the Appeals Council may: issue a decision that affirms, reverses, or modifies the ALJ's decision; return the case to the ALJ for further proceedings; or dismiss the request for review.
The Appeals Council, in reversing or modifying the ALJ's decision, may not impose a suspension for less than one or more than five years.
The Appeals Council may dismiss the request for review in any of the following circumstances:
the party who filed the request for review asks the Appeals Council, in writing, to dismiss the request, and the other party does not object;
the representative dies; or
the party requesting review failed to file its request within the 30 day time period and the Appeals Council does not find good cause for extending the filing period.
The Appeals Council issues its final decision or order in writing and mails copies to both parties. The Appeals Council decision is final and binding on all parties. The laws and regulations governing discipline of claimant representatives do not provide for Federal court review.
A representative against whom charges are pending may continue to represent claimants until a final decision is issued. A decision to suspend or disqualify a representative becomes final and binding unless, within 30 days of the date the ALJ mailed the decision, one of the parties requests the Appeals Council to review the decision. When the request for review is filed more than 30 days after the date the ALJ mailed the decision, the decision of the ALJ remains final and binding unless the Appeals Council finds good cause for the untimely filing and assumes jurisdiction. If the Appeals Council reviews the ALJ's decision, the representative may continue to represent claimants until the Appeals Council issues its final decision on the matter. When the Appeals Council issues its decision, any period of suspension or disqualification the Appeals Council imposes is effective from the date of the Appeals Council's decision.
Any decision on a complaint following a hearing or Appeals Council review must be promptly transmitted to the OGL by the ALJ who heard the case, or by the Appeals Council after review. When a decision that imposes a period of suspension or a disqualification becomes final and binding, the OGL will initiate notification procedures to ensure that appropriate SSA components are informed of the action. A copy of the ALJ or Appeals Council decision will accompany the notification. When the disqualified or suspended representative is an attorney, the OGL will provide a copy of the decision to each bar association in every State or Territory in which the attorney is admitted to practice.
If a person who has been suspended or disqualified from acting as a representative subsequently attempts to act as a representative for claimants in any matter pending in any SSA office, that office must advise the person in writing that SSA will not recognize him or her as a representative. If the person still insists upon serving as a representative, the SSA office should refuse to recognize him or her and send a memorandum summarizing the suspended or disqualified person's actions along with all relevant documents to:
Office of the General Counsel