I-1-1-50.Referring a Suspected Violation
Last Update: 6/25/20 (Transmittal I-1-98)
Staff in the Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) 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.
If staff suspects that a violation is fee related, see the instructions in Hearings, Appeals and Litigation Law (HALLEX) manual I-1-2-81. If staff also suspects that there is a criminal violation, the matter must be referred to the Office of the Inspector General using the instructions in HALLEX I-1-3-6.
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 imposed sanction.
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 it receives from OHO or OAO management and consider whether to initiate an administrative sanction action against the representative. OGC may contact OHO or OAO for more information or assistance.
OHO and OAO will continue processing claims in which the individual is appointed as a representative.
B. Referring a Suspected Violation to 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 the OHO regional office (RO) or an OHO or OAO headquarters employee discovers suspected representative misconduct, 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 OHO or OAO 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 RO and OAO will provide a copy of the electronic file and/or hearing record upon request by OGC. If the case involves a paper file, 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 OHO or OAO employee will add the following Remark in the applicable processing system to note the referral: “Referral memo submitted for consideration on [note date and for OHO, the RO where the referral is submitted].” At the hearing level, the OHO employee will note the referral in the Case Processing and Management System. At the AC level, the OAO employee will note the referral 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 OHO or OAO 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 to 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. 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 RO in the region where the suspected misconduct occurred, and copy the OHO Office of the Chief Administrative Law Judge's (OCALJ) Division of Field Procedures (DFP) at OHO.OCALJ.DFP@ssa.gov. The RO will determine whether there are referrals from other regional HOs that involve the same representative or firm.
The RO will review the referral and in consultation with OCALJ, will determine whether to close the referral, issue a reminder letter to the representative, or send the referral to the ORCC, with a copy sent to OCALJ DFP at OHO.OCALJ.DFP@ssa.gov and ^HQ OGC Rep Conduct Referrals.
2. AC Level
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 confirm submission of a referral to the RO by the component observing the conduct. When it is unclear whether another component made a referral, 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 ^DCARO 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 with a copy to ^HQ OGC Rep Conduct Referrals.
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 the referral warrants further action.
2. Possible OGC Actions
If OGC determines that the representative may have violated the Social Security Act or regulations, OGC may send the representative an inquiry letter describing the potential violation and providing the representative with an opportunity to respond to the allegations. Based on the representative's response, if any, OGC may decide to close the referral without further action or resolve the matter informally by issuing the representative a warning letter. The warning letter will place the representative on notice that he or she must comply with the Rules of Conduct and Standards of Responsibility for Representatives and that OGC may consider the warning letter when determining whether to pursue suspension or disqualification in future referrals involving the same representative. OGC may also opt to initiate the formal sanctions process by preparing a notice containing a statement of charges.
3. Notice of Statement of Charges
If OGC determines that the violation warrants formal sanctions, OGC will serve the notice containing a statement of charges on the representative via certified or registered mail. The notice must 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 14 business 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. OGC may extend the answer period for good cause.
4. 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.