[Federal Register: January 18, 2006 (Volume 71, Number 11)]
[Rules and Regulations]
[Page 2871-2879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja06-4]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
RIN 0960-AG15
Representation of Parties; Recognition, Disqualification, and
Reinstatement of Representative
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are revising our regulations to identify additional bases
upon which we may bring charges to disqualify an individual from acting
as a representative before the Social Security Administration (SSA),
and to set forth the conditions under which we will reinstate an
individual whom we have disqualified as a representative because the
individual collected or received, and retains, a fee in excess of the
amount we authorized. These final rules revise our regulations on the
representation of parties to implement section 205 of the Social
Security Protection Act of 2004 (SSPA) and to make additional changes
in these regulations that relate to the changes required by this
legislation. The rules also make technical changes in our regulations
on the representation of parties.
DATES: These rules are effective February 17, 2006.
FOR FURTHER INFORMATION CONTACT: Richard Bresnick, Social Insurance
Specialist, Office of Regulations, Social Security Administration, 100
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410) 965-1758 or TTY (410) 966-5609. For information on eligibility or
filing for benefits, call our national toll-free number, 1-800-772-1213
or TTY 1-800-325-0778, or visit our Internet site, Social Security
Online, at https://www.ssa.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html
.
Background
Section 206(a)(1) of the Social Security Act (the Act) provides
that attorneys and non-attorneys may represent claimants before SSA.
Prior to enactment of the SSPA, Public Law 108-203, on March 2, 2004,
section 206(a)(1) specified that ``[a]n attorney in good standing who
is admitted to practice before the highest court of the State,
Territory, District, or insular possession of his residence or before
the Supreme Court of the United States or the inferior Federal courts''
is entitled to represent claimants before SSA. Section 206(a)(1) also
authorized SSA to prescribe rules and regulations governing recognition
of individuals other than attorneys.
Section 205 of the SSPA amended section 206(a)(1) of the Act with
respect to the recognition and disqualification of certain attorneys as
claimants' representatives. As amended, section 206(a)(1) provides that
the Commissioner of Social Security (the Commissioner), after due
notice and opportunity for hearing, may refuse to recognize as a
representative, and may disqualify a representative already recognized,
any attorney who has been disbarred or suspended from any court or bar
to which he or she was previously admitted to practice or who has been
disqualified from participating in or appearing before any Federal
program or agency. Section 206(a)(1) as amended further provides that
the Commissioner may also, after due notice and opportunity for
hearing, refuse to recognize, and may disqualify, as a non-attorney
representative, any attorney who has been disbarred or suspended from
any court or bar to which he or she was previously admitted to
practice.
Section 205 of the SSPA also amended section 206(a)(1) of the Act
with respect to reinstatement of certain individuals (whether or not
they are attorneys) who have been disqualified or suspended from
appearing before SSA. Under the Act as amended, a representative who
has been disqualified or suspended from appearing before SSA as a
result of collecting or receiving a fee in excess of the amount
authorized shall be barred from appearing before SSA as a
representative until full restitution is made to the claimant and,
thereafter, may be considered for reinstatement only under such rules
as the Commissioner may prescribe.
Regulatory Provisions Implementing SSPA Section 205 and Making Related
Changes
As amended, section 206(a)(1) of the Act identifies certain
specific bases upon which, after notice and opportunity for hearing, we
may refuse to recognize an attorney as a representative or disqualify
an attorney whom we have already recognized as a representative. We are
implementing these statutory provisions by revising our regulations at
20 CFR 404.1745 and 416.1545, which describe the circumstances in which
we may file charges seeking to suspend or disqualify an individual from
acting in a representational capacity before us. Specifically, we are
revising these sections to expand the stated bases upon which we may
file such charges to include those in which we have evidence that a
representative has been, by reason of misconduct--
Disbarred or suspended from any court or bar to which he
or she was previously admitted to practice, or
Disqualified from participating in or appearing before any
Federal program or agency.
Sections 404.1745 and 416.1545 as a whole pertain to our bringing
of charges that may seek either to suspend or to disqualify a
representative. As we explain below in connection with revisions we are
making in our regulations dealing with the decisions hearing officers
make on charges brought against representatives (20 CFR 404.1770 and
416.1570), disqualification is the sole sanction available if the
charges against a representative are sustained because the
representative has been, by reasons of
[[Page 2872]]
misconduct, disbarred or suspended from any court or bar to which he or
she was previously admitted to practice or disqualified from
participating in or appearing before any Federal program or agency.
Sections 404.1745 and 416.1545, as revised and as they previously
existed, apply with respect to both attorney and non-attorney
representatives. Under these sections as revised, we have authority to
bring charges to disqualify a non-attorney representative if we have
evidence that the representative has been, by reason of misconduct--
Disbarred or suspended from any court or bar to which he
or she was previously admitted to practice, or
Disqualified from participating in or appearing before any
Federal program or agency.
As amended by the SSPA, section 206(a)(1) of the Act specifically
provides that, after providing due notice and an opportunity for
hearing, SSA ``may refuse to recognize, and may disqualify, as a non-
attorney representative any attorney who has been disbarred or
suspended from any court or bar to which he or she was previously
admitted to practice.'' Thus, the Act provides that disbarment or
suspension by a court or bar may be a basis for disqualifying an
individual from representational functions before SSA irrespective of
whether the individual seeks to represent individuals as an attorney or
non-attorney. Although it provides that we may refuse to recognize or
disqualify an attorney who has been disqualified from participating in
or appearing before a Federal program or agency, the Act as amended
does not also state that we may refuse to recognize a non-attorney (or
former attorney) who has been disqualified from participating in or
appearing before any Federal program or agency. These final rules
include a rule making disqualification from participating in or
appearing before any Federal program or agency a basis for bringing
charges to disqualify a non-attorney in order to make our rules, with
respect to recognition of non-attorneys, consistent with our rules for
attorneys. By making this a basis for bringing charges against non-
attorneys as well as attorneys, we ensure that the additional
protections provided by the SSPA are available for all claimants,
regardless of whether their representatives are attorneys or non-
attorneys.
We are promulgating this rule regarding non-attorney
representatives under the general authority of the Commissioner, as set
forth in section 206(a)(1) of the Act, to prescribe rules and
regulations ``governing the recognition'' of non-attorney
representatives and to require such representatives to ``show that they
are of good character and in good repute'' and capable of providing
claimants valuable services. Under this rule, if we determine, after
providing due notice and opportunity for a hearing, that a non-attorney
individual has been disqualified from participating in or appearing
before a Federal program or agency for reasons of misconduct, we will
disqualify the individual as having failed to show that he or she is of
good character and in good repute and will thereafter, absent
reinstatement in accordance with the provisions of 20 CFR 404.1799 and
416.1599, refuse to recognize the individual as a representative. The
effect of this rule is to require a non-attorney whom we charge with
having been disqualified from participating in or appearing before a
Federal program or agency for reasons of misconduct to show, in
accordance with our rules at 20 CFR 404.1750ff. and 416.1550ff. on
hearing and deciding charges against representatives, that he or she
has not been disqualified from participating in or appearing before a
Federal program or agency for reasons of misconduct and is thus, in
that respect, of good character and in good repute.
This rule codifies a practice we currently apply under Program
Operations Manual System section GN 03970.011, which sets forth a non-
exclusive list of circumstances in which we may bring charges (under
Sec. Sec. 404.1745 and 416.1545) to suspend or disqualify a non-
attorney from practice before us for lack of good character and
reputation. We believe we should codify that disqualification by a
Federal program or agency may be a basis for bringing charges against a
non-attorney representative because the Act as amended by the SSPA is
silent on that issue, even though it provides that we may bring charges
against a non-attorney for disbarment or suspension by a court or bar.
Our codification of this particular basis for bringing charges based on
a lack of good character and reputation does not limit our discretion
to bring charges against a non-attorney representative, as we do at
present, whenever we believe that we have evidence that a non-attorney
fails to meet the qualification requirement concerning good character
and reputation included in the provisions of Sec. Sec. 404.1705 and
416.1505 on ``Who may be your representative.''
Under Sec. Sec. 404.1745 and 416.1545 as revised, we have
discretion in determining whether to bring charges when we have
evidence that an individual has been disbarred, suspended or
disqualified by a court, bar, Federal program or agency. One factor we
will consider in determining whether to bring charges is whether the
individual has been reinstated by the court, bar, Federal program or
agency that disbarred, suspended or disqualified the individual.
Reinstatement will not necessarily preclude the bringing of charges.
Further, we may also bring charges if the disbarment, suspension or
disqualification by a court, bar, Federal program or agency became
final prior to the enactment of section 205 of the SSPA.
We are revising 20 CFR 404.1755 and 416.1555, the sections of our
regulations that deal with the withdrawal of charges that have been
filed against a representative, to clarify the existing provisions and
to set forth specific criteria we apply in determining whether to
withdraw charges where we have filed charges against a representative
based on disbarment, suspension or disqualification by a court, bar or
Federal program or agency and subsequently learn that the
representative has been reinstated by the court, bar or Federal program
or agency that took the action against the representative. We describe
these revisions and our reasons for making them below under Public
Comments.
Under the Act as amended by the SSPA, we have discretionary
authority to refuse to permit an individual to function as a
representative before us because that individual has been disbarred,
suspended or disqualified by a court, bar or Federal program or agency.
To implement that authority, we are revising Sec. Sec. 404.1770 and
416.1570 to explain that in deciding whether to impose that sanction we
will consider the reasons for the disbarment, suspension, or
disqualification action of the court, bar or Federal program or agency
and will not disqualify the individual from acting as a representative
before SSA if the court, bar, or Federal program or agency action was
taken for reasons unrelated to misconduct (e.g., solely for
administrative reasons such as failure to pay dues or failure to
complete continuing legal education requirements). Sections 404.1770
and 416.1570 as revised also explain that this exception to
disqualification will not apply if the administrative action was taken
by the court, bar or Federal program or agency in lieu of disciplinary
proceedings (e.g., the acceptance of a voluntary resignation pending
disciplinary action), and that although we will consider the reasons
[[Page 2873]]
for the disbarment, suspension, or disqualification action in
determining whether to disqualify an individual from appearing before
us as a representative, we will not re-examine or revise the factual or
legal conclusions that led to the disbarment, suspension or
disqualification action.
As revised, Sec. Sec. 404.1770 and 416.1570 also explain what we
mean by the terms ``disqualified,'' ``Federal program,'' and ``Federal
agency'' for the purposes of deciding whether an individual has been
disqualified from participating in or appearing before any Federal
program or agency. For that purpose, ``disqualified'' refers to any
action that prohibits an individual from participating in or appearing
before the program or agency, regardless of how long the prohibition
lasts or the specific terminology used. The program or agency need not
use the term ``disqualified'' to describe the action. For example, an
agency may use analogous terms such as ``suspend,'' ``decertify,''
``exclude,'' ``expel,'' or ``debar'' to describe the individual's
disqualification from participating in the program or the agency. For
the purposes of deciding whether an individual has been disqualified
from participating in or appearing before any Federal program or
agency, ``Federal program'' refers to any program established by an Act
of Congress or administered by a Federal agency and ``Federal agency''
refers to any authority of the executive branch of the Government of
the United States.
As previously noted, we are also revising Sec. Sec. 404.1770 and
416.1570 to provide that disqualification will be the only sanction
that may be applied if charges against a representative (attorney or
non-attorney) are sustained because the representative has been, by
reason of misconduct, disbarred or suspended from any court or bar to
which he or she was previously admitted to practice or disqualified
from participating in or appearing before any Federal program or
agency. The Act, as amended by the SSPA, states only that we may
``refuse to recognize'' and, where recognition has already occurred,
``disqualify'' an individual who has been disbarred, suspended or
disqualified by a court, bar or Federal program or agency. Under our
rules on reinstatement, a suspended representative is automatically
reinstated at the end of the period of suspension (20 CFR 404.1797 and
416.1597). By contrast, under Sec. Sec. 404.1799 and 416.1599 of our
rules, if an individual has been disqualified, reinstatement can occur
only if the individual asks the Appeals Council of our Office of
Hearings and Appeals for permission to serve as a representative again
and the Appeals Council decides that it is reasonable to expect that
the individual will, in the future, act in accordance with the
provisions of section 206(a) of the Act and our rules and regulations.
We cannot ensure that reinstatement is warranted on that basis in cases
in which the sanction imposed by us is a suspension. Based on the
above, and for reasons further explained below under Public Comments,
we believe that disqualification is the only appropriate sanction where
charges are sustained because we find that a representative has been,
by reason of misconduct, disbarred, suspended or disqualified by a
court, bar or Federal program or agency.
We are also revising Sec. Sec. 404.1770 and 416.1570 to state
that, if the charges against the representative are sustained because
the representative has collected or received, and retains, a fee for
representational services in excess of the amount authorized,
disqualification will be the only sanction available. This change is
intended to ensure that such a representative is barred from appearing
before SSA until full restitution has been made, as required by the Act
as amended by the SSPA. Sections 404.1770 and 416.1570 as revised
recognize that restitution is required only where the representative
has not already made full restitution at the time at which we sustain
charges of collecting or receiving an unauthorized fee. The
representative ``retains'' an unauthorized fee that has been collected
or received if full restitution has not been made for any reason. If a
representative makes full restitution before the charges against the
representative have been sustained, we are not precluded from finding
that the representative has charged, collected, or retained a fee in
violation of Sec. Sec. 404.1740(c)(2) and/or 416.1540(c)(2), and
suspending or disqualifying that representative from practice.
We are revising 20 CFR 404.1790 and 416.1590, which deal with
decisions made by the Appeals Council where a party to the hearing
requests review of a hearing officer's decision in a sanction case, to
conform these sections to the changes made in Sec. Sec. 404.1770 and
416.1570 to limit the sanction available to disqualification where
charges are sustained either because the representative has been, by
reason of misconduct, disbarred or suspended from any court or bar to
which he or she was previously admitted to practice or disqualified
from participating in or appearing before any Federal program or
agency, or because the representative has collected or received, and
retains, a fee in excess of the amount authorized. As revised,
Sec. Sec. 404.1790 and 416.1590 provide that the Appeals Council may
not modify a hearing officer's decision to impose a suspension, instead
of a disqualification, when disqualification is the only sanction
available under Sec. Sec. 404.1770 and 416.1570.
We are also revising our rules on reinstatement in Sec. Sec.
404.1799 and 416.1599 to provide that, if the representative has been
disqualified because he or she was disbarred or suspended from a court
or bar, the Appeals Council will grant reinstatement to the individual
as a representative only if the individual not only satisfies the
Council with respect to the required expectation of future behavior,
but also shows that he or she has been admitted (or readmitted) to and
is in good standing with the court or bar from which he or she had been
disbarred or suspended. This provision ensures that an individual will
not be reinstated as a representative unless the individual can satisfy
the court or bar that disbarred or suspended the individual that he or
she is fit to act in a representational capacity again.
Sections 404.1799 and 416.1599 as revised include a similar rule
for reinstatement of a representative who has been disqualified because
he or she was disqualified from participating in or appearing before
any Federal program or agency. This rule provides that such an
individual must not only satisfy the Appeals Council with respect to
the required expectation of future behavior, but also show that he or
she is once again qualified to participate in or appear before that
Federal program or agency.
As revised, Sec. Sec. 404.1799 and 416.1599 also state that, if a
representative has been disqualified as a result of collecting or
receiving, and retaining, a fee for representational services in excess
of the amount authorized, full restitution of the excess fee must be
made before the person may be considered for reinstatement. This
provision implements the provision of the SSPA requiring us to bar from
appearing before us, until full restitution is made, a representative
who has been disqualified or suspended from appearing before us as a
result of collecting or receiving a fee in excess of the amount
authorized.
Other Changes
We are making a technical change to 20 CFR 404.1750(e)(2) and
416.1550(e)(2), which explain how a representative must answer a notice
containing a statement of charges. Our
[[Page 2874]]
rules have heretofore directed that the answer be filed with Special
Counsel Staff in SSA's Office of Hearings and Appeals. This component
no longer exists. (See 68 FR 59231 and 68 FR 61240.) The notice
containing a statement of charges provides specific instructions on how
and where to file an answer. Therefore, we are revising this rule to
reflect that the representative must file the answer with SSA, at the
address specified in the notice, within the 30-day time period.
We are also making technical changes in Sec. Sec. 404.1755 and
416.1555. These technical changes are in addition to the previously
noted changes made to these sections (i.e., the clarification of
existing provisions and inclusion of the criteria we apply in deciding
whether to withdraw charges when we learn of the reinstatement of a
representative after we file charges against the representative based
on disbarment, suspension, or disqualification for misconduct). The
technical changes we are making in Sec. Sec. 404.1755 and 416.1555
include specifying that the Deputy Commissioner for Disability and
Income Security Programs, or his or her designee is, as the official
who decides to initiate a representative sanction proceeding, also the
official who may withdraw charges against a representative. This change
is needed because questions have arisen about who in the agency has
authority to withdraw charges. As we discuss below under Public
Comments, we are also making additional technical changes in these
sections to clarify our existing practices and rules regarding the
withdrawal of charges against a representative.
Finally, we are also making a technical change to Sec. Sec.
404.1765(l) and 416.1565(l) to state that the Office of the General
Counsel will represent the Deputy Commissioner for Disability and
Income Security Programs in all representative sanction proceedings,
including those involving a request for reinstatement by a suspended or
disqualified individual. This amendment is necessary because the former
Special Counsel Staff previously represented the Deputy Commissioner.
(See 56 FR 24129.)
Public Comments
We published these regulatory provisions in the Federal Register as
a notice of proposed rulemaking (NPRM) on April 13, 2005 (70 FR 19361).
We provided the public with a 60-day comment period. Two individuals
and an organization submitted comments.
Because some of the comments submitted by the organization were
detailed, we have condensed, summarized, or paraphrased them below.
However, we have tried to summarize the views presented in these
comments accurately and to respond to the significant issues raised in
the comments that were within the scope of the proposed rules. We have
not summarized the comments submitted by the two individuals because
those comments were not within the scope of the proposed rulemaking.
Comment: The organization expressed support for our proposal to
make disqualification from appearing before any Federal program or
agency a basis for bringing charges to disqualify non-attorneys as well
as attorneys.
Response: Comment noted.
Comment: Observing that the proposed rules stated in Sec. Sec.
404.1770(a)(3)(ii) and 416.1570(a)(3)(ii) that disqualification would
be the sole sanction available if charges against a representative are
sustained because the representative has been disbarred or suspended
from a court or bar or disqualified from participating in or appearing
before any Federal program or agency, and that the statutory language
says that SSA ``may'' refuse to recognize an individual in such
instances, the commenter suggests that the final rules explain why SSA
has decided to make disqualification mandatory.
Response: The rules make disqualification mandatory only if SSA has
brought and sustained charges based on disbarment, suspension or
disqualification due to misconduct. SSA has exercised discretion by
narrowing, through these rules, the basis upon which charges of
disbarment, suspension or disqualification may be sustained. Section
205 of the SSPA provides SSA with the discretion to disqualify
representatives from practice before SSA if the representative has been
suspended or disbarred by a court or bar, or has been disqualified from
participating in or appearing before a Federal program or agency. SSA
has in these rules elected to narrow the circumstances under which it
will disqualify a representative to those disbarments, suspensions, or
disqualifications that were based on misconduct. SSA will also exercise
discretion under these rules in deciding when to bring charges.
As we explained in the preamble to the NPRM and above, because our
rules on reinstatement after suspension provide for automatic
reinstatement at the end of a period of suspension, we believe it is
necessary to make disqualification the only available sanction where
charges of disbarment, suspension or disqualification for misconduct
are sustained in order to ensure that we have an opportunity to
determine if reinstatement is warranted. We believe it is mandatory
that we have the opportunity to decide that issue in these cases,
considering the seriousness of the representative's offense in
instances in which we have sustained charges of disbarment, suspension
or disqualification for misconduct by the representative.
SSA's decision to disqualify representatives who have been adjudged
to have committed misconduct by a court, bar or Federal program or
agency is also consistent with SSA's long-standing policy and practice.
Social Security Ruling (SSR) 74-29 stated the policy that SSA could
disqualify non-attorney representatives who had been disbarred by a
court because such a disbarment would appear to be inconsistent with
the requirement in section 206(a)(1) of the Act that a non-attorney
have a good character and be in good repute to be eligible to practice
before SSA. Program Operations Manual System section GN 03970.011 also
states that suspension or disbarment by a court or disqualification by
a Federal agency is evidence that a non-attorney representative is not
qualified to be a representative under the good character and
reputation requirement.
The appropriate place to set forth the explanation for regulatory
provisions is in the preambles to rules, not in the rules themselves.
We have explained in the preamble to the proposed rules, and above, the
rationale for the provision making disqualification the sole sanction
available where charges of disbarment, suspension or disqualification
based on misconduct are sustained. Accordingly, we are not including an
explanation of this provision in the final rules.
Comment: The commenter recommends that the regulations should be
expanded to include provisions specifying that a representative's
reinstatement by a court, bar or agency will not preclude us from
bringing charges against a representative. While recognizing that the
rules as proposed would permit us to proceed with filing charges in
these instances, the commenter believes that we should put
representatives on notice of that fact by making the regulations
explicit in this respect. The commenter also thought that the
regulations should address the situation in which reinstatement occurs
after charges are brought but before a hearing is held.
Response: Sections 404.1745(d) and 416.1545(d) as proposed for
revision authorized us to file charges against a
[[Page 2875]]
representative where we have evidence that the representative ``has
been'' disbarred or suspended by a court or bar by reason of
misconduct. Sections 404.1745(e) and 416.1545(e) as proposed authorized
us to file charges against a representative where we have evidence that
a representative ``has been'' disqualified from participating in or
appearing before a Federal program or agency by reason of misconduct.
As proposed for revision, these sections included no language
indicating that our authority to bring charges in these circumstances
is conditional on the absence or presence of any other circumstances.
We believe that the proposed language puts representatives on notice
that charges may be brought against them if they have been disbarred,
suspended or disqualified, even though reinstatement may have occurred,
and that no change in the language is required in the final rules to
clarify that point. The preamble to the proposed rules and the preamble
to these final rules state that we are not precluded from filing
charges where reinstatement has occurred.
We agree with this commenter that the regulations should include
provisions addressing situations in which SSA files charges against a
representative based on disbarment, suspension or disqualification and
then receives evidence, before a hearing is held, that the
representative has been reinstated to practice before the court, bar,
or Federal agency or program. We believe that the necessary guidance
should address situations in which we learn after filing charges of a
possible reinstatement irrespective of whether the reinstatement
occurred before or after our filing of charges.
We are providing such guidance in these final rules by adding to
Sec. Sec. 404.1755 and 416.1555 new third and fourth sentences that
describe specific criteria we apply when we determine whether to
withdraw charges of disbarment, suspension or disqualification because
the representative may have been reinstated before or after our filing
of charges. The criteria we apply in these situations are the same
criteria that the Appeals Council applies to determine whether a
disqualified representative should be reinstated. Those criteria are
whether the representative has proven that he or she has been
reinstated to the court, bar, or Federal program or agency that
disbarred, suspended or disqualified the representative, and that the
reinstatement is currently in effect (i.e., the individual remains in
good standing with the court or bar involved or, if the adverse action
was by a Federal program or agency, the individual is currently
qualified to participate in or appear before that program or agency);
and whether SSA can reasonably expect the representative to comply with
section 206 of the Act and our rules and regulations in the future.
In adding these specific criteria for withdrawing charges of
disbarment, suspension or disqualification based on possible
reinstatement of the representative, we have determined that we should
also clarify the second sentence of Sec. Sec. 404.1755 and 416.1555,
which has heretofore stated: ``We will [withdraw charges against a
representative] if the representative files an answer, or we obtain
evidence, that satisfies us that there is reasonable doubt about
whether he or she should be suspended or disqualified from acting as a
representative in dealings with us.'' The ``reasonable doubt''
discussed in the second sentence of Sec. Sec. 404.1755 and 416.1555 is
concerned with the extent of our discretion to decide not to pursue
charges and is contingent on whether the representative's answer or the
available evidence ``satisfies us'' that the charges should be
withdrawn. However, that language could be misunderstood to indicate
that we will withdraw charges if the representative establishes a
reasonable doubt that he or she is no longer disbarred, suspended or
disqualified, and will not violate section 206 of the Act and our rules
and regulations in the future. To prevent such a misunderstanding, we
are revising the final clause of the second sentence of Sec. Sec.
404.1755 and 416.1555 to state: ``* * * if the representative files an
answer, or we obtain evidence, that satisfies us that we should not
suspend or disqualify the representative from acting as a
representative in dealings with us.''
This clarification also precludes any possibility that the
provisions of the second sentence could be misunderstood to imply that
we sustain charges brought against a representative only if the charges
have been proven ``beyond a reasonable doubt.'' Any criminal charges
that might be brought against representatives must be proven beyond a
reasonable doubt. However, in the decisions made under Sec. Sec.
404.1770 and 416.1570 in response to administrative charges brought
against a representative under Sec. Sec. 404.1745 and 416.1545,
hearing officers decide findings of fact based on the preponderance of
the evidence.
To further address situations in which we consider withdrawing
charges that have been filed, we are also making additional technical
changes in Sec. Sec. 404.1755 and 416.1555 that clarify our existing
practices and rules with respect to withdrawing charges. These changes,
which we are setting forth in a new fifth sentence included in
Sec. Sec. 404.1755 and 416.1555, specify that our action regarding
withdrawal of charges is solely that of the Deputy Commissioner for
Disability and Income Security Programs, or his or her designee, and is
not reviewable, or a matter for consideration in decisions on charges
that are made against a representative under Sec. Sec. 404.1770,
404.1790, 416.1570 or 416.1590.
Comment: Observing that the possibility that the same action could
lead to disbarment in one State, but not in another, the commenter
recommends that the final rules should address this situation.
Response: We believe that we do not need to address this issue in
the final rules because the rules as proposed support the intended
policy, which is that we disqualify a representative whenever we bring
and sustain charges that the representative has been disbarred or
suspended for reasons of misconduct by any court or bar before which he
or she was previously admitted to practice. In the Social Security
ruling discussed above, SSR 74-29, SSA cited the U.S. Supreme Court's
opinion in Selling v. Radford, 243 U.S. 46 (1917), for the proposition
that, ``the effect of [a State court's] disbarment, as long as the
State court action stands unreversed, has been characterized as
destroying the condition of fair private and professional character
which an individual must possess to continue as a member of the Federal
bar.'' SSA policy reflects this holding by the Supreme Court in Program
Operations Manual System section GN 03970.011. SSA has long accepted
the decisions of different State courts and bar associations to disbar
or suspend individuals for misconduct as conclusive evidence that these
individuals are no longer qualified to practice before SSA irrespective
of the specific misconduct or governing law that is the basis for the
disbarment or suspension. As previously stated, we believe that any
individual who has been proven to have violated applicable laws,
regulations, or rules should be prohibited from practice before SSA
until that individual is found to be fit to practice before the court
that disbarred or suspended the individual and has proven fitness to be
reinstated to practice before SSA. While local court rules may vary,
each attorney has the obligation to follow those rules.
[[Page 2876]]
Comment: The commenter expresses support for the provision of
Sec. Sec. 404.1770(a)(2) and 416.1570(a)(2) that an individual will
not be disqualified for disbarment, suspension or disqualification if
the action against the representative was taken solely for
administrative reasons. The commenter also asks that, if possible,
additional guidance should be provided in the final rules regarding
this exception to disqualification.
Response: The proposed rules provided guidance on the application
of the exception regarding adverse actions taken solely for
administrative reasons by providing two examples of instances in which
the exception would apply--i.e., when the adverse action was taken for
failure to pay dues or to complete continuing legal education
requirements. The proposed rules provided further guidance by
specifying that the exception does not apply if the administrative
action was taken in lieu of disciplinary proceedings (e.g., acceptance
of a voluntary resignation pending disciplinary action). Finally, the
proposed rules provided additional guidance by stating that in deciding
whether a representative should be disqualified by reason of
disbarment, suspension or disqualification, the hearing officer will
not re-examine or revise the factual or legal conclusions that led to
the adverse action. In our judgment, the guidance in the proposed rules
provides specific guidance while at the same time not interfering with
the ability of the hearing officer to exercise appropriate discretion
in assessing and making decisions based on the complete facts of the
particular case. In addition, of course, the representative in each
case will have an opportunity to offer evidence and argument to show
that any disbarment, suspension, or disqualification is unrelated to
misconduct and administrative in nature.
We further note that where an adverse action against a
representative has been taken solely for administrative reasons and
thus will not support disqualification of the representative under the
provisions of Sec. Sec. 404.1745 and 416.1545 concerning disbarment,
suspension or disqualification by a court, bar or Federal program or
agency, we are not precluded from considering the behavior of the
representative that caused the adverse action in connection with
charges that we might bring against the representative under other
provisions of Sec. Sec. 404.1745 and 416.1545. Thus, for example, we
could consider the fact that a representative failed to take needed
continuing education courses in connection with charges brought against
a representative under Sec. Sec. 404.1745(b) or 416.1745(b) for
violation of the affirmative duty of representatives to provide
claimants competent representation. No change in the rules as proposed
is required to ensure this authority because the proposed rules dealt
with behavior such as failure to complete continuing education only as
it can affect disqualification of a representative because of
disbarment, suspension, or disqualification of the representative by a
court, bar or Federal program or agency.
Regulatory Procedures
Executive Order 12866
The Office of Management and Budget (OMB) has reviewed these rules
in accordance with Executive Order 12866, as amended by Executive Order
13258. We have also determined that these rules meet the plain language
requirement of Executive Order 12866, as amended by Executive Order
13258.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
affect only individuals. Thus, a regulatory flexibility analysis, as
provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
The final rules contain information collection activities at 20 CFR
404.1750(e)(2) and 416.1550(e)(2). However, the activities are exempt
under 44 U.S.C. 3518(c) from the clearance requirements of 44 U.S.C.
3507 as amended by section 2 of Public Law 104-13 (May 22, 1995), the
Paperwork Reduction Act of 1995.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; 96.006,
Supplemental Security Income.)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income.
Dated: October 19, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
0
For the reasons set out in the preamble, we are amending subpart R of
part 404 and subpart O of part 416 of chapter III of title 20 of the
Code of Federal Regulations as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart R--[Amended]
0
1. The authority citation for subpart R of part 404 continues to read
as follows:
Authority: Secs. 205(a), 206, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 406, and 902(a)(5)).
0
2. Amend Sec. 404.1745 by removing the word ``or'' at the end of
paragraph (b), changing the period to a semicolon at the end of
paragraph (c), and adding new paragraphs (d) and (e) to read as
follows:
Sec. 404.1745 Violation of our requirements, rules, or standards.
* * * * *
(d) Has been, by reason of misconduct, disbarred or suspended from
any bar or court to which he or she was previously admitted to practice
(see Sec. 404.1770(a)); or
(e) Has been, by reason of misconduct, disqualified from
participating in or appearing before any Federal program or agency (see
Sec. 404.1770(a)).
0
3. Amend Sec. 404.1750 by revising paragraph (e)(2) to read as
follows:
Sec. 404.1750 Notice of charges against a representative.
* * * * *
(e) * * *
(2) File the answer with the Social Security Administration, at the
address specified on the notice, within the 30-day time period.
* * * * *
0
4. Revise Sec. 404.1755 to read as follows:
Sec. 404.1755 Withdrawing charges against a representative.
The Deputy Commissioner for Disability and Income Security Programs
(or other official the Commissioner may designate), or his or her
designee, may withdraw charges against a representative. We will do
this if the representative files an answer, or we obtain evidence, that
satisfies us that we should not suspend or disqualify the
representative from acting as a representative in dealings with us.
When we consider withdrawing charges brought under Sec. 404.1745(d) or
(e) based
[[Page 2877]]
on the representative's assertion that, before or after our filing of
charges, the representative has been reinstated to practice by the
court, bar, or Federal program or agency that suspended, disbarred, or
disqualified the representative, the Deputy Commissioner for Disability
and Income Security Programs, or his or her designee, will determine
whether such reinstatement occurred, whether it remains in effect, and
whether he or she is reasonably satisfied that the representative will
in the future act in accordance with the provisions of section 206(a)
of the Act and our rules and regulations. If the representative proves
that reinstatement occurred and remains in effect and the Deputy
Commissioner, or his or her designee, is so satisfied, the Deputy
Commissioner, or his or her designee, will withdraw those charges. The
action of the Deputy Commissioner, or his or her designee, regarding
withdrawal of charges is solely that of the Deputy Commissioner for
Disability and Income Security Programs, or his or her designee, and is
not reviewable, or subject to consideration in decisions made under
Sec. Sec. 404.1770 and 404.1790. If we withdraw the charges, we shall
notify the representative by mail at his or her last known address.
0
5. Amend Sec. 404.1765(l) by adding a second sentence, to read as
follows:
Sec. 404.1765 Hearing on charges.
* * * * *
(l) Representation. * * * The Deputy Commissioner for Disability
and Income Security Programs (or other official the Commissioner may
designate), or his or her designee, will be represented by one or more
attorneys from the Office of the General Counsel.
* * * * *
0
6. Amend Sec. 404.1770 by redesignating existing paragraphs (a)(2) and
(a)(3) as (a)(3) and (a)(4), by adding a new paragraph (a)(2), and by
revising redesignated paragraph (a)(3)(ii), to read as follows:
Sec. 404.1770 Decision by hearing officer.
(a) * * *
(2) In deciding whether an individual has been, by reason of
misconduct, disbarred or suspended by a court or bar, or disqualified
from participating in or appearing before any Federal program or
agency, the hearing officer will consider the reasons for the
disbarment, suspension, or disqualification action. If the action was
taken for solely administrative reasons (e.g., failure to pay dues or
to complete continuing legal education requirements), that will not
disqualify the individual from acting as a representative before SSA.
However, this exception to disqualification does not apply if the
administrative action was taken in lieu of disciplinary proceedings
(e.g., acceptance of a voluntary resignation pending disciplinary
action). Although the hearing officer will consider whether the
disbarment, suspension, or disqualification action is based on
misconduct when deciding whether an individual should be disqualified
from acting as a representative before us, the hearing officer will not
re-examine or revise the factual or legal conclusions that led to the
disbarment, suspension or disqualification. For purposes of determining
whether an individual has been, by reason of misconduct, disqualified
from participating in or appearing before any Federal program or
agency--
(i) Disqualified refers to any action that prohibits an individual
from participating in or appearing before a Federal program or agency,
regardless of how long the prohibition lasts or the specific
terminology used.
(ii) Federal program refers to any program established by an Act of
Congress or administered by a Federal agency.
(iii) Federal agency refers to any authority of the executive
branch of the Government of the United States.
(3) * * *
(ii) Disqualify the representative from acting as a representative
in dealings with us until he or she may be reinstated under Sec.
404.1799. Disqualification is the sole sanction available if the
charges have been sustained because the representative has been
disbarred or suspended from any court or bar to which he or she was
previously admitted to practice or disqualified from participating in
or appearing before any Federal program or agency, or because the
representative has collected or received, and retains, a fee for
representational services in excess of the amount authorized.
* * * * *
0
7. Amend Sec. 404.1790 by revising paragraph (b) to read as follows:
Sec. 404.1790 Appeals Council's decision.
* * * * *
(b) The Appeals Council, in changing a hearing officer's decision
to suspend a representative for a specified period, shall in no event
reduce the period of suspension to less than 1 year. In modifying a
hearing officer's decision to disqualify a representative, the Appeals
Council shall in no event impose a period of suspension of less than 1
year. Further, the Appeals Council shall in no event impose a
suspension when disqualification is the sole sanction available in
accordance with Sec. 404.1770(a)(3)(ii).
* * * * *
0
8. Amend Sec. 404.1799 by revising paragraph (d) to read as follows:
Sec. 404.1799 Reinstatement after suspension or disqualification--
period of suspension not expired.
* * * * *
(d)(1) The Appeals Council shall not grant the request unless it is
reasonably satisfied that the person will in the future act according
to the provisions of section 206(a) of the Act, and to our rules and
regulations.
(2) If a person was disqualified because he or she had been
disbarred or suspended from a court or bar, the Appeals Council will
grant a request for reinstatement as a representative only if the
criterion in paragraph (d)(1) of this section is met and the
disqualified person shows that he or she has been admitted (or
readmitted) to and is in good standing with the court or bar from which
he or she had been disbarred or suspended.
(3) If a person was disqualified because he or she had been
disqualified from participating in or appearing before a Federal
program or agency, the Appeals Council will grant the request for
reinstatement only if the criterion in paragraph (d)(1) of this section
is met and the disqualified person shows that he or she is now
qualified to participate in or appear before that Federal program or
agency.
(4) If the person was disqualified as a result of collecting or
receiving, and retaining, a fee for representational services in excess
of the amount authorized, the Appeals Council will grant the request
only if the criterion in paragraph (d)(1) of this section is met and
the disqualified person shows that full restitution has been made.
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart O--[Amended]
0
9. The authority citation for subpart O of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5) and 1631(d) of the Social Security
Act (42 U.S.C. 902(a)(5) and 1383(d)).
0
10. Amend Sec. 416.1545 by removing the word ``or'' at the end of
paragraph (b), changing the period to a semicolon at the end of
paragraph (c), and adding
[[Page 2878]]
new paragraphs (d) and (e) to read as follows:
Sec. 416.1545 Violation of our requirements, rules, or standards.
* * * * *
(d) Has been, by reason of misconduct, disbarred or suspended from
any bar or court to which he or she was previously admitted to practice
(see Sec. 416.1570(a)); or
(e) Has been, by reason of misconduct, disqualified from
participating in or appearing before any Federal program or agency (see
Sec. 416.1570(a)).
0
11. Amend Sec. 416.1550 by revising paragraph (e)(2) to read as
follows:
Sec. 416.1550 Notice of charges against a representative.
* * * * *
(e) * * *
(2) File the answer with the Social Security Administration, at the
address specified on the notice, within the 30-day time period.
* * * * *
0
12. Revise Sec. 416.1555 to read as follows:
Sec. 416.1555 Withdrawing charges against a representative.
The Deputy Commissioner for Disability and Income Security Programs
(or other official the Commissioner may designate), or his or her
designee, may withdraw charges against a representative. We will do
this if the representative files an answer, or we obtain evidence, that
satisfies us that we should not suspend or disqualify the
representative from acting as a representative in dealings with us.
When we consider withdrawing charges brought under Sec. 416.1545(d) or
(e) based on the representative's assertion that, before or after our
filing of charges, the representative has been reinstated to practice
by the court, bar, or Federal program or agency that suspended,
disbarred, or disqualified the representative, the Deputy Commissioner
for Disability and Income Security Programs, or his or her designee,
will determine whether such reinstatement occurred, whether it remains
in effect, and whether he or she is reasonably satisfied that the
representative will in the future act in accordance with the provisions
of section 206(a) of the Act and our rules and regulations. If the
representative proves that reinstatement occurred and remains in effect
and the Deputy Commissioner, or his or her designee, is so satisfied,
the Deputy Commissioner, or his or her designee, will withdraw those
charges. The action of the Deputy Commissioner, or his or her designee,
regarding withdrawal of charges is solely that of the Deputy
Commissioner for Disability and Income Security Programs, or his or her
designee, and is not reviewable, or subject to consideration in
decisions made under Sec. Sec. 416.1570 and 416.1590. If we withdraw
the charges, we shall notify the representative by mail at his or her
last known address.
0
13. Amend Sec. 416.1565(l) by adding a second sentence, to read as
follows:
Sec. 416.1565 Hearing on charges.
* * * * *
(l) Representation. * * * The Deputy Commissioner for Disability
and Income Security Programs (or other official the Commissioner may
designate), or his or her designee, will be represented by one or more
attorneys from the Office of the General Counsel.
* * * * *
0
14. Amend Sec. 416.1570 by redesignating existing paragraphs (a)(2)
and (a)(3) as (a)(3) and (a)(4), by adding a new paragraph (a)(2), and
by revising redesignated paragraph (a)(3)(ii), to read as follows:
Sec. 416.1570 Decision by hearing officer.
(a) * * *
(2) In deciding whether an individual has been, by reason of
misconduct, disbarred or suspended by a court or bar, or disqualified
from participating in or appearing before any Federal program or
agency, the hearing officer will consider the reasons for the
disbarment, suspension, or disqualification action. If the action was
taken for solely administrative reasons (e.g., failure to pay dues or
to complete continuing legal education requirements), that will not
disqualify the individual from acting as a representative before SSA.
However, this exception to disqualification does not apply if the
administrative action was taken in lieu of disciplinary proceedings
(e.g., acceptance of a voluntary resignation pending disciplinary
action). Although the hearing officer will consider whether the
disbarment, suspension, or disqualification action is based on
misconduct when deciding whether an individual should be disqualified
from acting as a representative before us, the hearing officer will not
re-examine or revise the factual or legal conclusions that led to the
disbarment, suspension or disqualification. For purposes of determining
whether an individual has been, by reason of misconduct, disqualified
from participating in or appearing before any Federal program or
agency--
(i) Disqualified refers to any action that prohibits an individual
from participating in or appearing before a Federal program or agency,
regardless of how long the prohibition lasts or the specific
terminology used.
(ii) Federal program refers to any program established by an Act of
Congress or administered by a Federal agency.
(iii) Federal agency refers to any authority of the executive
branch of the Government of the United States.
(3) * * *
(ii) Disqualify the representative from acting as a representative
in dealings with us until he or she may be reinstated under Sec.
416.1599. Disqualification is the sole sanction available if the
charges have been sustained because the representative has been
disbarred or suspended from any court or bar to which he or she was
previously admitted to practice or disqualified from participating in
or appearing before any Federal program or agency, or because the
representative has collected or received, and retains, a fee for
representational services in excess of the amount authorized.
* * * * *
0
15. Amend Sec. 416.1590 by revising paragraph (b) to read as follows:
Sec. 416.1590 Appeals Council's decision.
* * * * *
(b) The Appeals Council, in changing a hearing officer's decision
to suspend a representative for a specified period, shall in no event
reduce the period of suspension to less than 1 year. In modifying a
hearing officer's decision to disqualify a representative, the Appeals
Council shall in no event impose a period of suspension of less than 1
year. Further, the Appeals Council shall in no event impose a
suspension when disqualification is the sole sanction available in
accordance with Sec. 416.1570(a)(3)(ii).
* * * * *
0
16. Amend Sec. 416.1599 by revising paragraph (d) to read as follows:
Sec. 416.1599 Reinstatement after suspension or disqualification--
period of suspension not expired.
* * * * *
(d)(1) The Appeals Council shall not grant the request unless it is
reasonably satisfied that the person will in the future act according
to the provisions of section 206(a) of the Act, and to our rules and
regulations.
(2) If a person was disqualified because he or she had been
disbarred or suspended from a court or bar, the Appeals Council will
grant a request for reinstatement as a representative only if the
criterion in paragraph (d)(1) of this
[[Page 2879]]
section is met and the disqualified person shows that he or she has
been admitted (or readmitted) to and is in good standing with the court
or bar from which he or she had been disbarred or suspended.
(3) If a person was disqualified because he or she had been
disqualified from participating in or appearing before a Federal
program or agency, the Appeals Council will grant the request for
reinstatement only if the criterion in paragraph (d)(1) of this section
is met and the disqualified person shows that he or she is now
qualified to participate in or appear before that Federal program or
agency.
(4) If the person was disqualified as a result of collecting or
receiving, and retaining, a fee for representational services in excess
of the amount authorized, the Appeals Council will grant the request
only if the criterion in paragraph (d)(1) of this section is met and
the disqualified person shows that full restitution has been made.
[FR Doc. 06-433 Filed 1-17-06; 8:45 am]
BILLING CODE 4191-02-P