I-1-1-50.Referring a Suspected Violation
Last Update: 12/16/13 (Transmittal I-1-70)
Staff in the Office of Disability Adjudication and Review (ODAR) may observe or detect suspected violations of the rules pertaining to a representative's conduct. If this occurs, staff must fully develop the suspected violation(s) and refer the case as described below.
Staff must not report suspected violations to the alleged violator's State bar association or other officials. Any such report could constitute a violation of the Privacy Act, 5 USC §552a, and section 1106 of the Social Security Act, both of which carry criminal penalties. If the Commissioner suspends or disqualifies a representative after appropriate notice and opportunity for a hearing, the Office of the General Counsel (OGC) will inform relevant State courts and bars of the sanction imposed.
In accordance with 5 USC § 2302(b)(13): These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.
OGC, as the Commissioner's designee, will evaluate the referral and consider whether to initiate an administrative sanction action against the representative. OGC may contact the referring office for more information or assistance.
The referring office will continue processing claims in which the individual is appointed as representative and will take no other action on the referral unless requested to do so by OGC.
B. Referring a Suspected Violation to ODAR Management
1. Prepare a Referral Memorandum
At the hearing level, the employee will prepare a referral memorandum from the Hearing Office Chief Administrative Law Judge (HOCALJ) or National Hearing Center (NHC) Director, addressed to the OGC Office of the Regional Chief Counsel (ORCC) in the region where the representative's office is located. At the Appeals Council (AC) level, the employee will prepare the memorandum from the Executive Director.
If suspected representative misconduct is discovered by an ODAR regional office (RO) or headquarters employee, the employee will apply the same general principles described in this subsection. In the RO, the Regional Chief Administrative Law Judge will sign the referral memorandum. In ODAR headquarters, the component executive will usually sign the referral memorandum.
The memorandum will generally include:
The names, addresses, and telephone numbers of the representative and the claimant;
The name, address, and telephone number of any other involved individual or witness;
The date(s) the action(s) occurred;
The action(s) that led to the representative misconduct allegation;
The location(s) where the action(s) took place (i.e., hearing office, representative's office, bank, or other location); and
Contact information for the employee who observed or discovered the suspected misconduct.
Do not add a copy of the memorandum or upload any referral information to the claim(s) file.
2. Prepare a Copy of the File
The employee will prepare a compact disc of the electronic file. If pertinent, the employee will include a copy of the hearing recording. If a paper file is involved, the employee will locate the paper file so it may be forwarded to OGC on request.
3. Associate Any Other Relevant Information
The employee will also include copies of any other pertinent evidence related to the suspected misconduct, such as a notice of the representative's disbarment or suspension from a state bar association, or a signed statement from the claimant or other witness(es) that details the suspected misconduct.
If the representative misconduct referral is based on a pattern of misconduct for repeated absences, tardiness, or withdrawal from representation at a time and in a manner that frequently disrupts scheduled hearing proceedings (see 20 CFR 404.1740(c)(7) and 416.1540(c)(7)), the hearing office (HO) must include supporting information for each case. Generally, referrals for these reasons must include sufficient information to establish a clear pattern over time. The referrals must also include information showing how the conduct disrupted the processing of the case (e.g., the hearing had to be rescheduled).
4. Document the Referral in the System
The ODAR employee will add the following Remark in the applicable processing system to note the referral: “OGC referral submitted for consideration on [note date and the office where the referral is submitted].” At the hearing level, the referral will be noted in the Case Processing and Management System. At the AC level, the referral will be noted in the Appeals Review Processing System.
To avoid Privacy Act concerns, the referring employee will not include any other information about the referral in the processing system. Rather, the employee will include specific information and details about the referral in the memorandum.
If the referral is based on a pattern of behavior, the ODAR employee will add a Remark in each case referenced in the memorandum.
5. Forward the Memorandum to Management
At the hearing level, the employee will forward the referral memorandum and any accompanying documentation through the first line supervisor, who will refer the memorandum through the management chain to the HOCALJ or NHC Director.
At the AC level, the employee will refer the memorandum and any accompanying information directly to the Division Chief Administrative Appeals Judge (DCAAJ).
C. ODAR Management Referrals to OGC
1. Hearing Level
The HOCALJ or NHC Director will review the initial referral memorandum to ensure that the allegations are fully developed according to the instructions in HALLEX I-1-1-50 B in this section and that a referral to OGC is appropriate.
The HOCALJ or NHC Director will then sign the memorandum and forward the information to the management team in the ODAR RO in the region where the suspected misconduct occurred. The RO will determine whether there are referrals from other regional HOs that involve the same representative or firm before sending the referral to the ORCC.
The DCAAJ will review the initial referral memorandum to ensure that the allegations are fully developed and a referral to OGC is appropriate.
Referrals for non-fee-related misconduct at the AC level are infrequent. Given the unique appellate review function performed by the AC, it is less common for a representative's action or inaction before the AC to constitute misconduct.
If the AC encounters possible representative misconduct that occurred at another level of adjudication, the AC will check the Remarks section in CPMS to see if a referral to OGC was submitted by the component observing the conduct. When it is unclear whether another component made a referral, and the circumstances are egregious, a referral by the AC may be appropriate.
When the DCAAJ agrees a referral is appropriate, the DCAAJ will forward a copy of the memorandum to ¦¦¦ODAR OAO with the subject line “OGC Referral” and, when applicable, deliver any supporting documentation to the Executive Director's Office. The Executive Director's Office will review and, when appropriate, forward the referral to the ORCC where the representative's office is located.
D. OGC Action After Referral
The Commissioner has designated OGC to examine and process all referrals alleging an administrative violation of our laws, regulations, rules, policies, or standards. The following is a general outline of how OGC processes referrals for possible misconduct.
When OGC receives a referral, it will evaluate the suspected violation and determine whether further action is required.
2. Further Inquiry for Possible Informal Resolution
If OGC determines that the representative may have violated the Social Security Act or regulations and that the matter is appropriate for informal resolution, OGC may prepare an inquiry letter placing the representative on notice of the potential violation and the penalties for failure to comply with the statute or regulations. The inquiry letter will also contain instructions for informal resolution of the suspected violation(s). If the representative complies with the directions given in the inquiry letter, OGC may close the investigation without further action.
3. Statement of Charges
If the representative neither responds to the inquiry letter with information that resolves the matter nor complies with OGC's instructions, OGC may prepare a notice containing a statement of charges that recommends to the General Counsel (GC) that the Social Security Administration (SSA) initiate a suspension or disqualification action against the representative. OGC will take the same action if the matter is inappropriate for informal resolution.
If the GC agrees with the recommendation, he or she will sign the notice containing the statement of charges.
4. Notice of Statement of Charges
OGC will serve the notice on the representative via certified or registered mail. The notice must specifically describe the acts or omissions that constitute the basis for the charges and specify whether SSA is seeking a disqualification or a suspension.
The notice advises the representative of his or her right to file an answer within 30 days admitting or denying the factual assertions contained in the notice and stating why SSA should not suspend or disqualify him or her from acting as a representative before SSA.
5. Response to Notice
If OGC accepts the representative's answer and decides that SSA should not suspend or disqualify the representative, OGC will withdraw the charges and notify the representative.
If the representative does not file a timely answer or if the answer does not support withdrawal of the charges, OGC will ask OCALJ to designate an administrative law judge (ALJ) to serve as a hearing officer and decide the merits of the charges. See HALLEX I-1-1-52. Whenever possible, the ALJ designated as the hearing officer will be from outside the region(s) where the representative practices.