I-5-1-22.Requiring Certain Representatives to Access the Electronic Claim(s) File Through Appointed Representative Services

Table of Contents
I Purpose
II Background
III Policy
IV Procedures
V Inquiries

Issued: April 18, 2016

Effective: August 16, 2016

I. Purpose

This temporary instruction (TI) provides guidance to the Office of Disability Adjudication and Review (ODAR) staff on implementing the new requirement that certain representatives access the electronic claim(s) file through the Appointed Representative Services (ARS) system, as announced in Federal Register Notice (FRN) 81 FR 22697. The FRN is effective 120 days after the date of publication to provide representatives who are not currently registered for ARS but now intend to do so, sufficient time to register.

Although this instruction is not effective until August 16, 2016, the date the FRN is effective, we are publishing these instructions in advance to inform our offices and the representative community how we will implement the FRN.

II. Background

In November 2010, the Social Security Administration (SSA) implemented the ARS system nationally at the hearing level. Among other things, ARS permits an appointed representative to examine a claim(s) file online, download material from the claim(s) file, and upload evidence to the claim(s) file in real time. Due to the successful implementation at the hearing level, SSA expanded a representative's access to the claim(s) file through ARS to the Appeals Council level in June 2011.

By 2016, the vast majority of appointed representatives were registered for and accessing claim(s) files online through ARS. Accessing the claim(s) file through ARS not only ensured that the representative was able to access the most up-to-date claim(s) file and also improved efficiencies and reduced SSA costs in associating incoming medical evidence and other information with a claim(s) file. However, because use of ARS was voluntary, ODAR staff was still required to accommodate representative requests to burn a compact disc (CD) copy of a claim(s) file in many cases.

Therefore, to address a critical need to timely and efficiently process cases, SSA published FRN 81 FR 22697 in 2016 to mandate that a representative use ARS when a claim(s) file is electronic and the representative requests direct payment of a fee.

III. Policy

In general terms, for claims pending at the hearing or Appeals Council levels, an appointed representative must access and obtain electronic claim(s) files through ARS in matters for which he or she requests direct fee payment. Except in limited circumstances, SSA will no longer provide a CD copy of the electronic folder to an appointed representative who requests direct payment of fees. See FRN 81 FR 22697. See also the hearing office electronic business process section 3.2.

In situations involving multiple representatives, when the mandate applies to a principal representative, ODAR staff will not provide a CD copy of the claim(s) file to a secondary representative who is associated with the same Employer Identification Number (EIN) as the principal representative. Instead, when a copy is needed, an affiliated secondary representative must arrange to obtain a copy of the claim(s) file from the principal representative.

There are also some limited exceptions to the mandate. Most significantly, even when a representative is requesting direct payment, the representative need not access the electronic claim(s) file through ARS:

  • When case characteristics, other systems, or technology limitations preclude online access to the electronic claim(s) file; and

  • Where technology limitations do not permit a representative to register for ARS (e.g., no cell phone coverage).

NOTE:

Although the rule announced in the FRN changes how certain representatives must access the file, it does not change an appointed representative's right to review the information in the claim(s) file (see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-35) or a representative's right to request a fee for his or her services. Additionally, it has no impact on a claimant's right to request a CD copy of his or her claim(s) file. However, if ODAR staff observes that claimants associated with a particular representative frequently request CD copies of their files and the behavior appears directed by the representative, staff will evaluate whether to refer the representative for possible non-compliance with the ARS mandate. See IV.B.2.c. below.

IV. Procedures

The following actions are necessary only when an appointed representative requests a CD copy of the claim(s) file. Additionally, the following instructions presume that ODAR staff has already taken appropriate action to determine the person requesting a CD is properly appointed as a representative on the claim(s).

NOTE:

Though these instructions focus on CDs requested prehearing, the instructions also apply to CDs requested at the time of a hearing or after the hearing. If a CD is requested on the date of a scheduled hearing, ODAR staff will burn a CD to avoid a delay of the hearing. However, when these instructions are applicable, ODAR staff will remind the representative of the obligation to access the folder through ARS and ask why the representative did not bring a copy of the file to the hearing. If the representative refuses to provide a reason or if it otherwise appears the representative is not complying with the FRN, ODAR staff will document the information on a form SSA-5002, Report of Contact, and follow the procedures in IV.C. below.

A. Evaluate Whether Representative Requests Direct Payment

1. Only One Appointed Representative

First, ODAR staff will assess whether the representative is eligible for and is requesting direct payment of a fee. When the representative uses a form SSA-1696, Appointment of Representative, to establish an appointment, ODAR staff can easily assess eligibility and a request for direct payment of a fee by reviewing whether the representative marked the relevant checkboxes. However, when an appointed representative uses a writing to establish the appointment rather than a form SSA-1696 (see Program Operations Manual System GN 03910.040), ODAR staff will presume any attorney representative is requesting direct payment, unless the writing specifically waives direct payment of a fee. If the representative is a non-attorney, ODAR staff may need to contact the representative's office to determine whether the representative is eligible for and is requesting direct payment of a fee (and, when appropriate, provide the information described in IV.B.1. below).

If a representative is not requesting direct payment of a fee, ODAR staff will burn a CD copy of the claim(s) file and provide it to the representative. Otherwise, ODAR staff will proceed with the next step, outlined in IV.B.1. below.

2. Multiple Representatives

When multiple representatives are appointed and a secondary representative requests a CD, ODAR staff will determine whether an exclusion to the FRN applies based on the status of the principal representative:

  • If the principal representative is eligible for and is requesting direct payment of a fee, and is registered for access through ARS, no exclusion applies. ODAR staff will continue with the procedures outlined in IV.B.2. below.

  • If the principal representative is eligible for and is requesting direct payment of a fee, but has not registered for access through ARS, an exclusion to the FRN applies for any secondary representative. In this situation, ODAR staff will burn a CD copy of the claim(s) file for any secondary representative on request. ODAR staff will then contact the principal representative and remind the representative of the mandate for accessing the claim(s) file through ARS when requesting direct payment of a fee. ODAR staff will also provide the representative with instructions on registering for ARS.

  • If the principal representative is not eligible for or has waived direct payment of a fee in the particular case, an exclusion to the FRN applies for any secondary representative. Because the mandate does not apply to the principal representative, ODAR staff will burn a CD copy of the claim(s) file for any secondary representative on request, even if the secondary representative is eligible for and is requesting direct payment of a fee.

B. Notify the Representative of the Requirement to Access the Claim(s) File Through ARS

1. Only One Appointed Representative

If no exceptions to the mandate apply, a representative who requests direct payment of a fee and is registered for ARS must access the claim(s) file through ARS. On receipt of a request for a CD, ODAR staff will notify the representative that ODAR will not provide a CD and he or she must access the claim(s) file through ARS. ODAR staff will associate any written correspondence with the claim(s) file and document any verbal communications on an SSA-5002.

For representatives who request direct payment but are not registered for ARS, ODAR staff will burn a CD the first time the representative requests a CD. However, when sending the CD to the representative, ODAR staff will send a cover letter advising the representative that he or she must register for and access a claim(s) file through ARS in each case for which he or she requests direct payment of a fee. With the notice, ODAR staff will also provide the representative with instructions on registering for ARS.

If ODAR staff observes that the same representative continues to request CDs in cases for which he or she also requests direct payment, ODAR staff will document examples of non-compliance with the FRN and see the instructions in IV.C. below.

2. Multiple Representatives Appointed Simultaneously

a. General Rule

In situations where more than one representative is appointed simultaneously, when the principal representative is under the mandate to access the claim(s) file through ARS, ODAR staff will generally assume that a secondary representative who is associated with the same law firm or entity as the principal representative is using the same EIN as the principal representative. In this situation, ODAR staff will notify the secondary representative that he or she must obtain a copy of the claim(s) file from the principal representative.

NOTE:

Some representatives in the same law firm or entity have different mailing or business addresses. Even in this scenario, ODAR staff will presume the representatives are using the same EIN unless otherwise informed by the representative.

As stated in 20 CFR 404.1740(a)(2) and 416.1540(a)(2), all representatives are under an obligation to be forthright in their dealings with SSA. Therefore, if a secondary representative who is affiliated with the principal representative's law firm or entity notifies ODAR staff that he or she is requesting a fee using a different EIN than the principal representative, ODAR staff will generally accept the assertion and burn a CD for the secondary representative. If it appears or later becomes apparent that a representative was or is not being entirely forthright, see IV.C. below for the procedures to follow when there is possible non-compliance with the ARS mandate.

b. Secondary Representative Cannot Obtain Copy From Principal Representative

When a principal and secondary representative are affiliated under the same EIN, the secondary representative may notify ODAR staff of legitimate extenuating circumstances that prevent him or her from obtaining a copy of the claim(s) file from the principal representative. Some examples of extenuating circumstances include:

  • The principal representative is out of the office on unexpected or extended leave;

  • The principal representative is unable to access the claim(s) file electronically; or

  • The secondary representative is in a different location than the principal representative and despite numerous attempts, the secondary representative has been unable to secure a copy of the claim(s) file from the principal representative. (When a principal representative is not complying with the FRN, see IV.C. below).

At the hearing level, the Hearing Office Director (HOD), or his or her designee, will evaluate the request. At the Appeals Council, the Executive Director's Office will designate staff to evaluate the request. When legitimate extenuating circumstances exist, ODAR staff will burn a CD copy for the secondary representative.

The HOD, or his or her designee, or the designated Office of Appellate Operations staff, will instruct ODAR staff not to burn a CD if it becomes clear the representative is requesting a CD merely because it is inconvenient to obtain a copy from the principal representative. For example, when the FRN applies, it is not a legitimate extenuating circumstance simply that the principal and secondary representatives are located at different business addresses. Rather, the secondary representative's request should explain how, despite numerous attempts to obtain a copy from the principal representative, he or she was unsuccessful.

C. Possible Non-compliance With FRN

Although ODAR staff will not presume non-compliance with the FRN in the following circumstances, ODAR staff may need to further evaluate the situation if staff observes:

  • A representative requesting direct payment of a fee frequently requests CD copies of claim(s) files;

  • Claimants affiliated with a particular representative frequently request CD copies of their claim(s) file;

  • In a multiple representative situation, a secondary representative frequently notifies ODAR that he or she is unable to obtain a copy of the claim(s) file from the principal representative; or

  • Information suggesting that a principal or secondary representative was or is not being entirely forthright with SSA regarding an EIN association.

When any of the above situations are present, ODAR staff will usually evaluate several cases in which the behavior occurred to determine whether there is a pattern of possible non-compliance with the FRN. In some cases, with the approval or assistance of an ODAR manager as needed, ODAR staff may also need to:

  • Review the processed forms SSA-1695, Identifying Information for Possible Direct Payment of Authorized Fees, in the claim(s) file;

  • Contact the field office for additional representative fee payment information; or

  • Contact the principal and secondary representatives individually to ask for a copy of the SSA-1695 submitted in the case.

If it appears a representative(s) is not complying with the FRN, ODAR staff will submit a referral using the procedures in HALLEX I-1-1-50.

NOTE:

If a representative submits an SSA-1695 to ODAR, see the instructions in HALLEX I-1-2-95. ODAR does not process the SSA-1695. If received for these purposes, after reviewing the EINs, ODAR staff must follow the instructions in HALLEX I-1-2-95 to immediately forward the form to the field office for processing.

V. Inquiries

Hearing office staff will direct all program-related and technical questions to appropriate regional office support staff. Regional offices may refer questions or unresolved issues to the appropriate Headquarters contact.

In the Office of Appellate Operations, staff and adjudicators will direct any program-related or technical questions to the Executive Director's Office.