I-1-3-26.Processing Non-Redetermination Fraud or Similar Fault Cases and Disregarding Evidence Under Sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Social Security Act (Fraud or Similar Fault “Non-Redetermination Cases”)

Last Update: 6/7/22 (Transmittal I-1-102)

A. In General

Under sections 205(u) and 1631(e)(7) of the Social Security Act (Act), the Social Security Administration (SSA) must disregard any evidence if there is a reason to believe that fraud or similar fault was involved in the providing of such evidence. See also Social Security Ruling (SSR) 22-2p: Titles II And XVI: Evaluation of Claims Involving the Issue of Similar Fault in the Providing of Evidence.

NOTE 1:

Special processing of non-redetermination cases is initiated by statutory mandate, not at the discretion of an individual SSA employee or adjudicator. For instructions on adjudicating cases involving fraud or similar fault that do not arise from sections 205(u) and 1631(e)(7) of the Act, see Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-3-15.

SSA is required to disregard any evidence if there is reason to believe that fraud or similar fault was involved in the providing of such evidence under sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act. Before SSA disregards evidence at the hearings level of the administrative review process, it will consider the individual's objection to the disregarding of that evidence. After an administrative law judge (ALJ) disregards evidence, the ALJ will evaluate the remaining evidence in accordance with SSA's existing rules.

SSA may receive information from the Office of the Inspector General (OIG) that provides a reason to believe that fraud or similar fault was involved in an individual's application for benefits or in the providing of evidence to SSA. As soon as OIG has reason to believe that fraud or similar fault was involved in the application of an individual for monthly insurance benefits under title II or for benefits under title VIII or XVI, section 1129(l) of the Act requires the OIG to make available information identifying the individual to SSA. The OIG will provide this information to the agency unless a prosecutor with jurisdiction over a potential or actual related criminal case(s) certifies in writing that providing the information regarding the entitlement to or eligibility for a claimant would jeopardize the criminal prosecution of any person who is a subject of the investigation from which the information was derived.

SSA may also receive information from a Federal or State prosecutor that provides a reason to believe that fraud or similar fault was involved in the application for benefits, or that fraud or similar fault was involved in providing certain evidence in an individual's application. As with OIG referrals, SSA will not act on this information when the prosecutor certifies in writing that SSA's use of the information will jeopardize criminal proceedings.

Finally, SSA may also uncover information when processing or reviewing a case(s) that provides a reason to believe that fraud or similar fault was involved in the provision of evidence. In this situation, SSA may make its own fraud or similar fault findings and evaluate the claim under SSR 22-2p on that basis. Regardless of the source of the evidence, the ALJ will disregard evidence only after providing the affected individual the opportunity to object to the exclusion of evidence.

B. Procedures

1. Identification of Cases

SSA will adjudicate cases when there is reason to believe that fraud or similar fault was involved in an individual's application for monthly disability benefits. However, these non-redetermination cases are not yet administratively final or closed, unlike redetermination cases addressed in HALLEX I-1-3-25. Unless the adjudications apply only at the hearings or Appeals Council levels, these cases may be coordinated with other components.

2. Instructions for Processing Cases

Except in circumstances where individual case instruction is more appropriate, Office of Appellate Operations (OAO) and Office of Hearings Operations (OHO) staff will draft specific processing instructions for any group of cases involving the same source(s) believed to have committed fraud or similar fault. OAO and OHO may initially release instructions in a temporary format such as a memorandum or other established mechanism, but will usually finalize instructions in a HALLEX temporary instruction (TI). In cases where there is an ongoing criminal investigation, the case specific HALLEX TI may not be made publicly available. However, relevant information will be provided in notices and other SSA communications with the claimant.

C. Special Adjudication Issues in Non-Redetermination Cases

For each group of cases, the HALLEX TI will address the factual and legal basis for conducting the processing of these cases. The instructions will also address specific business processing needs, such as identification of the cases in the applicable processing systems, how to establish a case, which office will process the action, routing issues, and so forth. Additionally, the instructions will usually provide case-specific details for the following general issues:

1. Screening Identified Cases

The HALLEX TI will describe the facts or case characteristics common to the patterns of known or suspected fraudulent activity. This information will permit the ALJ to decide based on the totality of the circumstances if there is a reason to believe fraud or similar fault was involved in the provision of evidence in an individual case.

2. Notice to Claimant

When there is reason to believe that fraud or similar fault was involved in the providing of evidence, OAO or OHO will send the claimant an appropriate notice. The notice will include information regarding the factual and legal basis for disregarding evidence. Additionally, the notice will explain how SSA will consider the claimant's objections to the disregarding of evidence at the hearings level. If OIG has identified the individual pursuant to section 1129(l) of the Act, SSA will provide a summary of the OIG investigative findings, or a copy of the OIG 1129(l) referral, with the notice or in the claim(s) file. If a prosecuting authority identified the individual, SSA will provide a summary of the prosecutor's finding(s), as well as a copy of the indictment(s), plea agreement(s), or other court filing(s) relevant to the case.

If SSA determined that fraud or similar fault was involved in the provision of evidence in the individual's case, SSA will provide detailed information regarding relevant criminal, civil, congressional, or administrative investigative findings and how they relate to the suspect evidence. SSA will associate copies of any relevant material(s) with the notice and in the claim(s) file.

In most cases that are processed at the hearings level, OHO will also provide additional notice of the issue(s) by including special language in the acknowledgement of the hearing request and, if applicable, the notice of hearing.

3. Evidence

Pursuant to sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act, SSA will set forth detailed case specific instructions regarding the evidence SSA must disregard if an adjudicator finds there is reason to believe that fraud or similar fault was involved in the providing of evidence based on any of the following:

  • OIG referrals of information pursuant to section 1129(l) of the Act; or

  • Information obtained during a criminal, civil, administrative, or other law enforcement investigation; or

  • A conviction (whether upon a verdict after trial or upon a plea of guilty or nolo contendere) of a Federal or State crime; or other sworn admissions, as in a pre-trial diversion agreement; or

  • An SSA investigation.

Under sections 205(u) and 1631(e)(7) of the Act, adjudicators must disregard evidence if there is reason to believe that fraud or similar fault was involved in the providing of evidence.

Before SSA disregards evidence pursuant to sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act at the hearings level of the administrative review process, the ALJ will consider the individual's objection to the disregarding of that evidence and will decide whether there is reason to believe that fraud or similar fault was involved in the providing of evidence in the individual's case. If the ALJ determines that fraud or similar fault was not involved in providing the evidence, the ALJ will consider the evidence. However, if the ALJ disregards the evidence because a reason to believe shows that fraud or similar fault was involved in providing the evidence, the ALJ will address the claimant's objection in the decision. These procedures are outlined in SSR 22-2p: Titles II and XVI: Evaluation of Claims Involving Similar Fault in the Providing of Evidence.

Evidence that is disregarded will remain associated in the claim(s) file but will be clearly designated as disregarded evidence.

When considering other evidence in the claim(s) file, adjudicators will use the procedures in SSR 22-2p and applicable HALLEX provisions in I-2-10 and I-3-10 to determine whether to disregard other evidence.

4. Appeal Rights and Special Decision Language

In the decision, an adjudicator will clearly explain that a claimant may appeal both the issue of whether the ALJ should have disregarded evidence as well as the overall finding of whether the claimant was entitled to disability insurance benefits and/or eligible for supplemental security income.

The applicable HALLEX TI will address any additional special language that is required in the decision due to the unique circumstances involved.

5. Appeals of Determinations or Decisions Performed at Another Administrative Level

Unique appeal processing issues will be set forth in a HALLEX TI, based on the particular circumstances involved.