I-5-1-23.Requiring Electronic Submission of Evidence by Certain Claimant Representatives
This temporary instruction (TI) provides guidance to Office of Hearings Operations (OHO) staff and Office of Analytics, Review, and Oversight staff in the Office of Appellate Operations (OAO) on implementing the new requirement that certain representatives submit all evidence electronically using Electronic Records Express (ERE), Appointed Representative Services (ARS), or iAppeals, as announced in Federal Register Notice (FRN) 85 FR 62779. This FRN is effective on November 4, 2020.
On April 18, 2016, we published a notice announcing the requirement that for claims with certified electronic folders pending at the hearing or Appeals Council levels, a representative must access and obtain a claimant's folder through ARS in all matters for which the representative requests direct fee payment (81 FR 22697). We implemented this requirement to improve administrative efficiency by eliminating the need for staff to burn compact disc copies for representatives, ensure that representatives provide the best possible service to claimants by using the most up to date information in the claims folder, and better manage our pending workloads.
While the majority of representatives already submit evidence electronically, we continue to receive paper evidence. Submitting evidence electronically promotes administrative efficiency, reduces the amount of paper evidence that requires physical handling and processing by our employees and contractors, and minimizes errors that may occur through manual processing.
Increasing the use of the electronic submission of evidence minimizes manual workloads in the administrative review process and allows us to direct staff resources toward resolution of cases pending, rather than toward processing paper evidence. Additionally, the ability to process evidence and develop cases electronically allows us to balance our workloads across the country by assigning the work to a broader network of available staff and adjudicators.
20 CFR 404.1713 and 416.1513 require representatives to conduct business with us electronically at the times and in the manner we prescribe on matters for which the representative requests direct fee payment. Therefore, as of November 4, 2020, the requirement to submit all evidence electronically through ERE, ARS, or iAppeals applies to all claims for Social Security disability insurance benefits under title II of the Social Security Act (Act) and for supplemental security income payments based on disability under title XVI of the Act in the following situations:
the representative requests direct fee payment on that claim,
the claim or case has an electronic folder, and
the claim is pending at OHO or the Appeals Council.
The requirement does not apply directly to claimants or representatives who are not eligible for or do not request direct fee payment. While these parties may continue to submit evidence through non-electronic means such as mailing, faxing, or sending to a contract scanner, all parties are strongly encouraged to use electronic means to submit evidence.
The requirement that representatives requesting direct fee payment submit evidence electronically, as described above, constitutes an affirmative duty under 20 CFR 404.1740(b)(4) and 416.1540(b)(4), and we may investigate and sanction a representative who does not comply with the electronic submission requirement. We acknowledge that there may be situations in which case characteristics, our systems, or other limitations preclude representatives requesting direct fee payment from submitting evidence electronically. We will consider these situations on a case-by-case basis in light of the representative's individual circumstances. We will not reject an appeal, delay a claimant's hearing, or process a claim differently if the representative does not comply with the requirement to submit evidence electronically.
The following actions are necessary only in cases where the official claims folder is electronic, we receive evidence through non-electronic methods (i.e., evidence is not uploaded through ERE, ARS, or iAppeals), and the claimant has an appointed representative(s).
1. Evaluate Whether Representative is Eligible for Direct Payment
First, OHO or OAO staff will assess whether the representative is eligible for and is requesting direct payment of a fee in the specific case for which we received the evidence. OHO or OAO staff will query the Registration Appointment and Services for Representatives (RASR) application to assess whether an attorney or Eligible for Direct Payment Non-Attorney (EDPNA) is eligible for and has requested direct payment of a fee. Only representatives who have registered with the Social Security Administration can receive direct payment of a fee (see Hearings, Appeals and Litigation Law (HALLEX) manual I-1-2-9). Representatives who have not registered for direct payment will not appear in RASR.
OHO or OAO staff will also check RASR to see if an eligible representative specifically waives a fee or direct payment of a fee in the case (see Program Operations Manual System GN 03920.020 and HALLEX I-1-2-10 B). However, when RASR does not indicate if an eligible representative is requesting direct payment in a particular matter, OHO or OAO staff may contact the representative to determine whether the representative is requesting direct payment of a fee. OHO or OAO staff should remind the representative that if he or she is eligible for direct payment of a fee and is not requesting it in a particular matter, he or she must affirmatively waive the fee or direct payment of the fee in a manner consistent with the requirements described in HALLEX I-1-2-10 B. OHO or OAO staff will document the conversation in a “Report of Contact” in RASR.
2. Representative Requests Direct Fee Payment
If the representative is requesting direct fee payment, OHO or OAO staff will contact the representative and remind him or her of the obligation to submit all evidence electronically under 20 CFR 404.1713, 416.1513, and 85 FR 62779. OHO or OAO staff will explain to the representative:
If the representative continues to submit evidence through non-electronic means on matters for which this requirement applies, we may consider a referral to the Office of the General Counsel for consideration of possible sanctions in accordance with HALLEX I-1-1-50.
OHO or OAO staff will document the contact on a “Report of Contact” in RASR.
3. Representative Does Not Request Direct Fee Payment
If the representative states that he or she is not requesting direct payment of a fee, OHO or OAO staff will document the information on a “Report of Contact” in RASR, noting that the representative is not requesting direct payment of a fee, and no further action is required. However, as noted above, an eligible representative who is not requesting direct payment of a fee is required to affirmatively waive direct payment (see HALLEX I-1-2-10 B).
4. Possible Non-Compliance with Submission of Evidence Requirement
If the representative alleges to OHO or OAO staff that he or she was unable to submit evidence electronically due to technological or other limitations, OHO or OAO staff will ask the representative to provide a written explanation within 10 business days describing why he or she was unable to submit the evidence electronically. OHO or OAO staff, in consultation with OHO or OAO management, will evaluate the explanation provided in light of all the circumstances in the case to determine whether the matter warrants a referral to OGC in accordance with HALLEX I-1-1-50.
If OHO or OAO staff observes that the representative is continually circumventing the requirements of the FRN (e.g., the representative repeatedly directs claimants to submit evidence by non-electronic means when this requirement is applicable to the representative), OHO or OAO staff will take all steps required by HALLEX I-1-1-50.
OHO 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.
OAO staff will direct any program-related or technical questions to the Executive Director's Office.