I-1-2-81.Evidence or Allegations of Violations of Law
Last Update: 12/16/13 (Transmittal I-1-71)
Section 206 of the Social Security Act (Act) states that an attorney or non-attorney representative of persons claiming benefits under the Act may be criminally charged if he or she charges, collects, or makes any agreement to charge or collect, directly or indirectly, any fee in excess of the maximum fee authorized by the Commissioner of Social Security or the amount authorized by a court of law.
In addition to criminal penalties, a representative can also be subject to an administrative sanction of suspension or disqualification from practice before the Social Security Administration (SSA) for violating the fee obligations of the Act and agency regulations. See 20 CFR 404.1740(c)(2) and 416.1540(c)(2).
Any Office of Disability Adjudication and Review (ODAR) employee who suspects or has evidence that an appointed representative has violated the Act or regulations pertaining to charging or collecting a fee will:
Refer the matter to the Office of the Inspector General (OIG) using the procedures in Hearings, Appeals and Litigation Law (HALLEX) manual I-1-3-6; and
Refer the matter to the Office of the General Counsel (OGC) using the procedures set forth in this section.
If the employee does not suspect a criminal violation has occurred but believes the behavior is inappropriate and may constitute misconduct, the employee will refer the matter to OGC. The employee need not refer the matter to OIG.
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.
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.
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);
Any other relevant information, such as whether the hearing office previously referred the representative to OGC; and
Contact information for the employee who discovered the alleged misconduct.
2. Prepare a Compact Disc (CD) or Paper Packet of Relevant Information
The employee will prepare a CD or paper packet of relevant information to accompany the memorandum. Relevant information may include information such as:
The document(s) or statement(s) from the claimant(s) or other person(s) alleging a violation;
Notice of the representative's disbarment or suspension, especially if it relates to fee-related issues;
Copies of bills or receipts the representative issued to the claimant;
Originals or copies of cancelled checks or money orders from the claimant, payable to the order of the representative;
Copies of any offer of an opportunity to correct the situation that is made to the representative; and
Copies of fee agreements.
In some cases, it may be appropriate for the employee to send a copy of or information from the claimant's file to accompany the memorandum. In electronic cases, the employee will usually prepare a CD with the information. If a paper file is involved, the employee will make copies of any relevant documents and, when appropriate, a CD copy of the hearing recording.
If a paper claim file is already with another component for effectuation when the employee first becomes aware of the possible violation, the employee will request the file. If the file cannot be located, the employee will note in the memorandum all attempts to locate the file.
3. 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.
4. Forward the Memorandum to Management
At the hearing level, the employee will forward the referral memorandum and 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 and 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 representative's office is located. 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.
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 in the region where the representative's office is located.