I-1-1-50.Referring an Alleged Violation
Last Update: 3/29/13 (Transmittal I-1-63)
A. Initial Referral
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 alleged violations 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.
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 the claim, and will take no other action on the referral unless requested to do so by OGC.
ODAR staff who observe possible representative non-fee related misconduct (see Hearings, Appeals and Litigation Law manual (HALLEX) I-1-2-81 for documenting fee-related misconduct) will fully develop and refer the case as follows:
Prepare a compact disc (CD) of the electronic file. If a paper file is involved, locate the file. If pertinent, include a copy of the recorded hearing.
Prepare a referral memorandum that includes:
the names of the representative and the claimant, as well as the address and telephone number of both individuals;
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, or other location); and
contact information for the reporter.
If possible, obtain copies of other pertinent evidence, such as a notice of the representative's disbarment or suspension.
If possible, obtain signed statements from the claimant and witnesses detailing the misconduct.
Forward the referral memorandum, the CD of the file or the paper file, and any other evidence to component management for review.
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 should also include information showing how the conduct disrupted the processing of the case (e.g., the hearing had to be rescheduled).
2. Referral by a Hearing Office or National Hearing Center
HO or National Hearing Center (NHC) management will review referrals to ensure that the allegations are fully developed according to the instructions in HALLEX I-1-1-50 A.1. in this section. HO management will forward fully developed referrals to the management team in the ODAR regional office (RO). RO staff will check for other regional referrals involving the same representative before sending the referral package to the Office of the Regional Chief Counsel (ORCC) in the region where the alleged misconduct arose.
For NHCs, the NHC director performs RO functions.
3. Referral by RO or HO Staff in Headquarters
If possible misconduct is observed by RO or HO staff in ODAR headquarters, allegations will be developed as much as possible according to the instructions in HALLEX I-1-1-50 A.1. in this section, and forwarded to the Office of the Chief Administrative Law Judge (OCALJ). OCALJ will forward the referrals to the ORCC in the region where the alleged misconduct arose.
4. Referral by the Appeals Council
Referrals for non-fee related misconduct at the Appeals Council (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 generally presumes it was referred by the component observing the conduct. The AC generally presumes a referral to avoid assumptions that may not be accurate. However, when it is unclear whether another component made a referral, and the circumstances are egregious, the AC and staff may use the instructions noted below.
If the AC becomes aware of an action that may constitute a violation of our rules, the first person discovering the issue will refer the matter to the Executive Director's Office (EDO) via email to |||ODAR OAO, with “Possible representative misconduct” in the email subject line. The content of the email must include:
the names of the representative and the claimant;
the date(s) the action occurred;
a detailed description of the representative misconduct allegation; and
the location(s) in the record where the action is documented. If the file is paper, copies of the referenced documents must be forwarded to EDO.
The person referring the issue will also add a Remark in the Appeals Review Processing System, documenting the referral. EDO will evaluate the referral and determine whether to refer the matter to OGC.
B. 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.
When OGC receives a referral, it will evaluate the suspected violation and determine whether further action is required.
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 alleged violation(s). If the representative complies with the directions given in the inquiry letter, OGC may close the investigation without further action.
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 a statement of charges, and OGC will serve the notice on the representative via certified or registered mail. The notice must describe with specificity the acts or omissions that constitute the basis for the charges and specify whether SSA is seeking a disqualification or a suspension.
The notice will advise the representative of his or her right to file within 30 days an answer 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.
If the representative's answer satisfies OGC 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 the hearing officer in the case and decide the merits of the charges. Whenever possible, the ALJ designated as the hearing officer will be from outside the region(s) where the representative practices.