I-5-6-3.New York (Redeterminations-Closed Cases; NYRD)
Last Update: 7/31/23 (Transmittal I-5-600-6)
| Purpose | |
| Background | |
| Hearings Level Procedures | |
| Appeals Council Procedures | |
| Inquiries | |
| Referral Letter from New York County District Attorney's Office | |
| Indictment | |
| Plea Agreements | |
| Notice of Redetermination | |
| Notice of Hearing |
Issued: September 25, 2014
Revised: April 5, 2019
Revised: March 13, 2020
Revised: July 31, 2023
I. Purpose
This Temporary Instruction advises Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) in the Office of Analytics, Review, and Oversight (OARO) employees of the procedures for processing certain cases redetermined under Hearings, Appeals and Litigation Law (HALLEX) manual I-1-3-25. These instructions relate to plea agreements from four individuals who orchestrated a scheme to assist applicants in submitting applications containing false claims and evidence to the Social Security Administration (SSA) in order to obtain disability benefits. In addition to the four individuals who ran the scheme, many beneficiaries also pleaded guilty to knowingly participating in the scheme.
These instructions pertain only to beneficiaries who were not indicted, but who were individually referred to SSA by the New York County District Attorney's Office (DA) in a letter dated February 25, 2014 (2014 referral letter). In the 2014 referral letter, the DA outlined a coordinated scheme “to fabricate a psychiatric disability” and obtain unauthorized benefits for numerous individuals in New York City. The 2014 referral letter identified for SSA the individual cases at issue, all of which had Raymond Lavallee as the appointed representative and applications and allegations matching those at issue in the fraudulent scheme. These cases are being redetermined because the individual was among those referred by the DA. Although the individual has not been indicted for participating in the alleged scheme, the 2014 referral letter and guilty pleas trigger SSA's obligation under section 205(u) of the Social Security Act (Act), to redetermine the case and disregard certain evidence (identified below) if there is reason to believe fraud or similar fault was involved in the providing of that evidence. See the background section below for more information.
NOTE 1:
Due to broad privacy concerns for individuals who have not been indicted, the list of identified cases is not attached to this instruction but is retained in the New York Regional Office. That office distributed the applicable cases to the OHO Regional Office for processing.
For processing instructions for beneficiaries who pleaded guilty to fraudulently collecting disability benefits from SSA, see HALLEX I-5-6-4. This instruction replaces any prior instruction and may be modified as additional information becomes available. For processing instructions for beneficiaries who were individually referred to SSA by the DA in a letter dated September 30, 2016 and whose criminal cases have been dismissed without a plea deal or other admission or proof of guilt, see HALLEX I-5-6-8. For processing instructions for beneficiaries who were convicted at trial of fraudulently collecting disability benefits from SSA, see HALLEX I-5-6-9.
II. Background
Raymond Lavallee (an appointed representative), Thomas Hale (a disability consultant), Joseph Esposito (a retired New York City police officer), and John Minerva (a union official for the Detective Endowment Association) pleaded guilty to directing and assisting numerous individuals in creating and submitting fraudulent Social Security Disability Insurance (SSDI) applications from at least January 1, 1988 through December 18, 2013. Although the beneficiaries addressed in this instruction have not been indicted for participating in the alleged scheme, the DA's 2014 referral letter and section 205(u) of the Act require that SSA screen for redetermination the entitlement of each individual referred by the DA. SSA must redetermine entitlement and disregard evidence submitted by those involved in the fraudulent scheme when conducting those redeterminations if there is reason to believe that fraud or similar fault was involved in the providing of that evidence. Before SSA disregards evidence pursuant to section 205(u)(1)(B) of the Act at the hearings level of the administrative review process, it will consider the individual's objection to the disregarding of the evidence.
The circumstances of the scheme were generally as follows: The four principal facilitators named above directed and assisted numerous beneficiaries on how to present false mental impairments and respond to agency questions or examinations in order to obtain benefits based on a mental impairment. Among other things, the facilitators helped beneficiaries fill out paperwork with fabricated evidence regarding activities of daily living and coached them on how to act and what to say during consultative examinations, administrative law judge (ALJ) hearings, and treatment sessions. Many of the beneficiaries cited the events of September 11, 2001 as the cause of their psychiatric condition(s). The beneficiaries visited psychiatrists or psychologists designated by one or more of the four principal facilitators to build a record of psychiatric treatment for a condition that would warrant an allowance for SSDI benefits. As the DA pointed out in the 2014 referral letter, “[t]he medical reports prepared by these doctors reached the same diagnostic conclusions” and “[i]nvariably, these doctors began treating their 'patients' approximately one year before the claimants submitted their SSDI applications.” Beneficiaries continued to receive treatment from these doctors after qualifying for benefits, frequently by telephone. In return for services by the four principal facilitators, after an individual received past-due benefits, they made a cash payment to Mr. Lavallee, Mr. Hale, Mr. Esposito, or Mr. Minerva amounting to 14 months of benefits.
Because it is implicated by the DA's 2014 referral letter, the indictments of the four principal facilitators and numerous other individual beneficiaries, and the plea agreements from Mr. Lavallee, Mr. Hale, Mr. Esposito, and Mr. Minerva, under section 205(u)(1)(B) of the Act, SSA must disregard the following evidence dated between January 1, 1988 and December 18, 2013 if an adjudicator finds there is reason to believe fraud or similar fault was involved in the providing of the evidence:
Any evidence regarding a mental impairment submitted by one of the four principal facilitators (Mr. Lavallee, Mr. Hale, Mr. Esposito, and Mr. Minerva); and
Medical evidence from two psychiatrists identified by the DA in the 2014 referral letter as participating in the alleged scheme, Dr. Edward Sodaro and Dr. Raymond Pierre-Paul.
Before SSA disregards evidence under section 205(u)(1)(B) of the Act at the hearings level of the administrative review process, it will consider the individual's objection to the disregarding of the evidence. See also Social Security Ruling (SSR) 22-1p: Titles II and XVI: Fraud and Similar Fault Redeterminations Under Sections 205(u) and 1631(e)(7) of the Social Security Act and SSR 22-2p: Titles II and XVI: Evaluation of Claims Involving the Issue of Similar Fault in the Providing of Evidence.
NOTE 1:
In redeterminations conducted before May 2017, SSA also disregarded evidence of the identified individual's subjective complaints regarding a mental impairment diagnosed by Dr. Sodaro or Dr. Pierre-Paul (unless independently diagnosed and otherwise substantiated by a medical source other than Dr. Sodaro or Dr. Pierre-Paul using evidence not associated with the fraudulent scheme) and other medical evidence that relied on evidence submitted by those involved in the fraudulent scheme, particularly the individual's allegations regarding mental impairments in their original application, unless the allegations were independently diagnosed and were otherwise substantiated by a medical source other than Dr. Sodaro or Dr. Pierre-Paul using evidence not associated with the fraudulent scheme. However, for redeterminations conducted as of May 2017, SSA will only disregard the evidence identified in subsection II above.
NOTE 2:
The DA's 2014 referral letter, the indictments, and the plea agreements of the four principal facilitators are related solely to allegations regarding mental impairments. Therefore, adjudicators will not evaluate the disregarding of any evidence involving any alleged physical impairment(s), even if that evidence was submitted by one of the four principal facilitators.
NOTE 3:
The claims subject to redetermination involved title II benefits only. If OHO or OAO staff or adjudicators find an identified claim that involves title XVI, section 1631(e)(7) of the Act is also implicated and additional instruction will be needed. If this situation arises, OHO or OAO staff or adjudicators will refer the case through normal management channels for additional instruction before processing the case.
Mr. Lavallee was disqualified from representing claimants before SSA, effective December 12, 2014.
III. Hearings Level Procedures
OHO received a list of previously adjudicated closed hearings level cases that required redeterminations under section 205(u) of the Act. The Special Review Cadre (SRC) in OHO has been assigned to process the New York redeterminations described in this instruction.
A. General
The New York Fraud Prevention Unit (FPU) will process cases with original allowance at the initial and reconsideration levels of the administrative review process. On receipt of a request for hearing, the field office or FPU will send an email message to ||| OHO OCALJ NSD Special Review Cadre. Designated SRC staff will ensure all cases redetermined at the hearings level have the case characteristic “NYRD” (New York Redetermination) in the Case Processing and Management System (CPMS) and the Hearings and Appeals Case Processing System (HACPS). Designated SRC staff will also add the appropriate case characteristic “FRD1” (Fraud Redetermination of Award at Hearing Level) or “FRD2” (Fraud Redetermination of Award at Lower Level).
B. Redeterminations Under Section 205(u) of the Social Security Act
1. Notice of Redetermination or Acknowledgement Letter
For previously adjudicated closed hearings level decisions that require redetermination at the hearings level of the administrative review process, the SRC will provide the individual with a Notice of Redetermination. See Attachment 4 for a sample Notice of Redetermination. SRC staff will associate a copy of the Notice of Redetermination in the B section of the claim(s) file.
For previously adjudicated determinations that require redetermination at the initial and reconsideration levels (i.e., cases that were redetermined by the FPU) and are then appealed to the hearings level, or for redetermination hearing decisions that were remanded to the SRC from either the Appeals Council or Federal court, the SRC will provide the individual with an acknowledgement letter for redeterminations. SRC staff will associate a copy of the acknowledgment letter in the B section of the claim(s) file.
2. Evidence
a. Screening
Designated adjudicators will review the file to determine whether it contains any of the following:
Any evidence regarding a mental impairment submitted by one of the four principal facilitators (Mr. Lavallee, Mr. Hale, Mr. Esposito, and Mr. Minerva); and
Medical evidence from two psychiatrists identified by the DA in the 2014 referral letter as participating in the alleged scheme, Dr. Edward Sodaro and Dr. Raymond Pierre-Paul.
If the file contains any of the evidence as outlined above, or if the adjudicator suspects that fraud or similar fault was involved in the provision of any other evidence, the adjudicator will determine whether there is an issue of fraud or similar fault that requires adjudication in accordance with SSR 22-1p and SSR 22-2p.
NOTE:
If, after screening, the adjudicator determines there is no reason to believe that fraud or similar fault was involved in the provision of any evidence (i.e., that fraud or similar fault is not an issue requiring adjudication), the adjudicator will not proceed with the redetermination and will issue a fully favorable decision on the record to reinstate the prior allowance, following the instructions in subsections III.B.7.a. and b.
If, after screening, the adjudicator determines there is an issue of fraud or similar fault requiring adjudication, the SRC will continue processing the redetermination and will offer the individual an opportunity for a hearing. At the hearing, the individual will have the opportunity to object to the disregarding of evidence. The adjudicator will process the case using the instructions below.
b. Fraud or Similar Fault Identified as an Issue for Adjudication
If a Possible Fraud or Similar Fault (Special F) flag is not already part of the record, SRC staff will add that flag in eView for an electronic claim(s) file or attach the flag to the front of a paper claim(s) file.
Additionally, if it is not already part of the record, the SRC will add a copy of the applicable 2014 referral letter, indictments of the four principal facilitators, their plea agreements, and any other relevant document(s) to the claim(s) file. In paper cases, staff will add the documents to Part B- Jurisdictional Documents/Notices (red tab) of the claim(s) file. In electronic cases, staff will upload the documents using document type 7011-Misc. Jurisdictional Documents/Notices to Part B-Jurisdictional Documents/Notices (red tab) of the claim(s) file. See Attachments 1, 2, and 3 for copies of these materials.
c. Reason to Believe Standard
Under section 205(u)(1)(B) of the Act, SSA must disregard any evidence if there is reason to believe that fraud or similar fault was involved in the providing of such evidence. See HALLEX I-1-3-15 C.1. for the definition of “reason to believe.”
In determining if there is a reason to believe fraud or similar fault exists, the adjudicator may consider, among other evidence, the indictments of the four principal facilitators, their plea agreements, and the DA's 2014 referral letter.
Before the administrative law judge (ALJ) disregards evidence under section 205(u)(1)(B) of the Act at the hearings level of our administrative process, the ALJ will consider the individual's objection to the disregarding of that evidence. See HALLEX I-1-3-25. After considering any objections, the ALJ will decide whether there is reason to believe that fraud or similar fault was involved in providing evidence in the individual's case.
If, after the hearing and considering any objections, the ALJ finds there is reason to believe that fraud or similar fault was involved in the provision of evidence, the ALJ will disregard such evidence under section 205(u)(1)(B) of the Act and issue a new decision (i.e., redetermine the case). After disregarding such evidence, the ALJ will evaluate all remaining evidence in accordance with SSA's existing policies regarding the evaluation of symptoms and medical evidence. The ALJ will consider any internal inconsistencies in the individual's statements, as well as inconsistencies with other evidence. See 20 CFR 404.1513a, 404.1527, and SSR 16-3p: Titles II and XVI: Evaluation of Symptoms in Disability Claims.
If, after the hearing and considering any objections, the ALJ finds there is no reason to believe that fraud or similar fault was involved in the provision of evidence under section 205(u)(1)(B) of the Act, the redetermination must stop, and the ALJ will issue a fully favorable decision reinstating the original allowance (see subsections III.B.7.a. and b.).
NOTE:
SSA generally does not develop evidence of an individual's intent. Therefore, a finding of similar fault in accordance with SSR 22-2p is sufficient for the ALJ to disregard the evidence at issue. See HALLEX I-2-10-10 A.
d. Other Evidence
In some cases, it may also be appropriate to disregard evidence provided by a source who was not involved in the fraud scheme described in subsection II. For example, if a physician relies on medical evidence from one of the sources listed in subsection III.B.2.a. that the ALJ disregards, then the ALJ must also disregard the parts of the physician's report relying on the disregarded evidence, or, when based solely on the disregarded evidence, the entire document. When the degree of reliance on evidence from one of the sources listed in subsection III.B.2.a. is unclear, the ALJ will evaluate the evidence in accordance with SSA's existing policies regarding the evaluation of medical evidence.
e. Submission of New Evidence
When redetermining the case, the ALJ will consider any evidence the individual submits that is new, material, and related to the limited period at issue as defined in this instruction. See HALLEX I-2-5-13 and I-2-6-58 A. For example, if the individual submits evidence of an impairment that existed at the time of the original allowance but did not allege that impairment on their application, the ALJ will consider that evidence. Additionally, there are circumstances when evidence that post-dates the original determination or decision will reasonably relate to the time period adjudicated by the original adjudicator. For example, a statement from a medical source that is dated after the original determination or decision, but specifically addresses the time period that was originally adjudicated, may reasonably relate to the period at issue.
Generally, an ALJ will not develop evidence in these cases. However, the ALJ may develop evidence in the following circumstances:
The ALJ may obtain medical expert or vocational expert evidence as needed.
If an individual requests assistance in developing records that they indicate are new, material, and related to the period at issue, the ALJ will make every reasonable effort to assist the individual in obtaining the evidence.
If the ALJ finds it necessary to develop new sources for the period at issue, the ALJ may develop at their own discretion. However, when developing evidence, the ALJ will specifically limit the requested information to the time period being adjudicated on the form SSA-827, Authorization to Disclose Information to the Social Security Administration, that accompanies the request for information.
If the individual submits evidence of a new impairment that does not relate to the period at issue, the ALJ will not consider or develop the evidence of the new impairment. However, an individual is not precluded from filing a new application under SSR 11-1p: Titles II and XVI: Procedures for Handling Requests to File Subsequent Applications for Disability Benefits when a redetermination is pending. See SSR 22-1p, section A.9. and HALLEX I-1-10-1 B.2.b.
NOTE 1:
If the additional evidence shows a new critical or disabling condition is present, or if the individual raises the issue of filing a new application, SRC staff will inform the individual that they may file a new application. See HALLEX I-1-10-1 C for the definition of “new critical or disabling condition.” If SRC staff verbally informs the individual that they may file a new application, SRC staff will document the conversation on an SSA-5002 (Report of Contact), provide a copy to the individual and associate the form in Part E – Disability Related Development (blue tab) of the claim(s) file.
NOTE 2:
If the individual files a new application, the ALJ usually will not accept an escalated claim or consolidate the redetermination claim with the new application (see Program Operations Manual System (POMS) DI 12045.010A). The claim(s) generally cannot be consolidated because there is no “common issue” as defined in POMS (i.e., there are different issues and time periods involved in the redetermination claim and the subsequent application).
3. Exhibiting and Marking Issues
Disregarded evidence must remain in the claim(s) file, and the ALJ must ensure that evidence from any of the sources listed in subsection III.B.2.a. (or other disregarded evidence) is clearly identified.
In electronic cases, SRC staff will clearly designate the information as “DISREGARDED-FSF” in the Note field in eView or the Electronic Non-Medical (ENM) application. In a paper claim(s) file, SRC staff will add “DISREGARDED-FSF” on the first page of the information with the number of pages, and on each subsequent page. To illustrate, a 2-page submission that the ALJ disregards would be marked as follows: page 1 “DISREGARDED-FSF 1/2” and page 2 “DISREGARDED-FSF 2/2.”
NOTE 1:
To ensure that individuals and any representative with access to the electronic file can identify and object to the disregarding of the evidence in question, SRC staff will exhibit the evidence, even if the ALJ determines that it should be disregarded.
NOTE 2:
If the ALJ disregards only certain portions of evidence from a source, SRC staff will remove the information using the same procedures for removing personally identifiable information that is not properly associated with the claim(s) file. The ALJ will retain both versions of the evidence (the original and the redacted) in the claim(s) file, exhibiting both, but identifying the non-redacted version as above with the caption “PORTIONS DISREGARDED-FSF -See Ex. [**].”
NOTE 3:
If another administrative level previously disregarded evidence, or the hearings level in a remanded case previously disregarded evidence, and the ALJ subsequently determines that the agency should not have disregarded the evidence, SRC staff will update eView, ENM, or the paper claim(s) file to reflect the evidence was not disregarded.
4. Notice of Hearing
Prior to an ALJ determining there is reason to believe fraud or similar fault was involved in the provision of evidence in support of the individual's application, the ALJ will offer the individual an opportunity for a hearing. The ALJ must give notice to the individual and their representative, if any, regarding the statutory basis of the redetermination, the period at issue, and issues relating to disregarded evidence. To give notice regarding the statutory basis for disregarding evidence, the ALJ will use specific language in the “It Is Important That You Attend Your Hearing,” “Submitting More Evidence and Reviewing Your File,” and “Issues I Will Consider” sections of the notice of hearing. See Attachment 5 for a sample Notice of Hearing. If the individual or their representative objects to the disregarding of the evidence, the ALJ will evaluate the objection and the arguments under the procedures in SSR 22-1p and SSR 22-2p.
If the ALJ decides to disregard other evidence based on fraud or similar fault from an individual or entity other than the sources listed in subsection III.B.2.a., the ALJ will also provide notice in the notice of hearing.
5. Period of Adjudication
The ALJ will consider the claim(s) only through the date of the final and binding determination or decision on the individual's application for benefits (i.e., the original allowance date).
NOTE 1:
The original allowance date is the date SSA approved the determination of award found on the Benefit Payment Section of eView, the Master Beneficiary Record (MBR), or the SSA-831. The SRC staff may contact the field office to have them review the A101 or the EF101 (SSA determination of award) in the Online Retrieval System (ORS) if the SRC staff are unable to determine the appropriate original allowance date. When alternative dates are given, the earlier one is the last day of the “period adjudicated” unless otherwise indicated. See POMS DI 27510.001.
The ALJ may find a potential onset date of disability that is different than the individual's alleged onset date of disability. However, in all cases, the ALJ is limited in adjudicating through the date of the original allowance date. See SSR 18-1p: Titles II and XVI: Determining the Established Onset Date (EOD) in Disability Claims and SSR 18-2p: Titles II and XVI: Determining the Established Onset Date (EOD) in Blindness Claims.
NOTE 2:
SSA may have updated the listings since the time of the original favorable decision. For a comprehensive list of obsolete listings, see POMS DI 34100.000.
While the ALJ must apply the listings that were in effect at the time of the original favorable determination or decision, the ALJ and SRC staff will apply the national uniformity regulations regardless of when the original favorable decision was issued. See 20 CFR 404.900-951.
On February 25, 2020, SSA published a rule, “Removing Inability to Communicate in English as an Education Category” in the Federal Register (85 FR 10586) (“new rules”). On March 9, 2020, the agency also published SSR 20-01p: Titles II and XVI: How We Determine an Individual's Education Category. On June 27, 2020, the agency implemented the new rules and began applying them in all determinations and decisions. In processing cases redetermined under section 205(u) of the Act, ALJs must use the education categories and grid rules that were in effect at the time the agency made the original favorable determination or decision. See HALLEX I-5-6-15 for a copy of the prior education categories and grid rules.
6. Dismissals
a. Redeterminations of Closed Hearings Level Cases
In redeterminations of closed hearings level cases, under no circumstances can the ALJ dismiss the case, even if the individual does not appear at the time and place of the redetermination hearing, or if the individual is deceased. If the individual fails to appear and does not establish good cause, or waives the right to appear at the hearing, the ALJ will issue a decision on the record.
NOTE 1:
Assisting SRC staff must still follow the contact procedures in HALLEX I-2-3-15 and I-2-3-20 when providing notice of hearing. If the individual does not appear at the time and place of the redetermination hearing, the ALJ and assisting SRC staff will use the procedures in HALLEX I-2-4-25 to determine whether it is necessary to develop good cause for the failure to appear (but cannot dismiss the case after doing so).
NOTE 2:
If the individual has died, SRC staff will attempt to identify any person who qualifies as a substitute party under 20 CFR 404.503(b). See HALLEX I-2-4-35. The ALJ will conduct any necessary proceedings in accordance with the following instructions.
If a qualified substitute party cannot be identified, the ALJ will issue a decision on the record and add it to the claim(s) file. The SRC will not mail a decision (other than to a representative, if any) to protect personally identifiable information.
b. Case Redetermined at Another Administrative Level
The ALJ can dismiss a request for hearing if the case was redetermined at another administrative level, the individual appealed the case to the hearings level, and the criteria for dismissal are present. For more information about the dismissal criteria at the hearings level, see HALLEX I-2-4-5.
7. Decision Language
a. General
In all decisions, the adjudicator will specifically explain that:
The New York County District Attorney's Office (DA) and the Office of the Inspector General (OIG) of the Social Security Administration (SSA) conducted an extensive criminal investigation that resulted in the criminal indictment and conviction of principal facilitators Raymond Lavallee, Thomas Hale, Joseph Esposito, and John Minerva, who admitted to conducting a scheme to make false statements or other representations to SSA in order to obtain fraudulent benefits for others. Numerous individual beneficiaries have also been indicted and convicted in connection with the DA's investigation.
The DA referred this case to SSA as one where Mr. Lavallee was the individual's attorney representative, and the facts of the case are similar to those involved in the fraudulent scheme. The file contains evidence from one or more of the principal facilitators regarding a mental impairment(s) alleged in the case that SSA used to find the individual disabled or from one of the doctors the DA identified as having been involved in the scheme. Therefore, the ALJ determined whether the individual was entitled to benefits on or before [Date of Prior Determination or Hearing Decision], the date SSA initially allowed the claim(s).
Under section 205(u) of the Social Security Act (Act), SSA must redetermine an individual's entitlement to disability benefits and disregard evidence when there is reason to believe fraud or similar fault was involved in that individual's application for benefits.
The ALJ was required to make a finding regarding whether there is reason to believe fraud or similar fault was involved in the providing of the following evidence dated between January 1, 1988 and December 18, 2013: any evidence regarding a mental impairment submitted by one of the four principal facilitators; and medical evidence from two psychiatrists identified by the DA in the referral letter as participating in the alleged scheme, Dr. Edward Sodaro and Dr. Raymond Pierre-Paul.
[If applicable] The ALJ allowed the individual the opportunity to object to the disregarding of evidence from [Mr. Lavallee/Mr. Hale/Mr. Esposito/Mr. Minerva/Dr. Sodaro/Dr. Pierre-Paul]. [If applicable] The ALJ considered the individual's objections to the disregarding of evidence. [Explanation for the finding].
b. No Reason to Believe That Fraud or Similar Fault was Involved in the Provision of Evidence – Fully Favorable Decision Warranted
If the adjudicator finds, after screening the case or after considering the individual's objections, there is no reason to believe that fraud or similar fault was involved in the provision of evidence in support of the individual's application, then the adjudicator will stop the redetermination process, vacate all prior decisions or determinations associated with the redetermination, reinstate the finding of disability as of the date of original allowance, and incorporate by reference the findings from the prior hearing decision or determination issued on the date of original allowance.
NOTE 1:
When reinstating the prior favorable hearing decision or determination, adjudicators should not alter any of the findings or rationale in support of the original allowance because the agency is ceasing all redetermination actions in the individual's case.
The adjudicator will specifically explain in the favorable decision that:
The ALJ determined that there was insufficient evidence to establish a reason to believe that fraud or similar fault was involved in the provision of evidence in support of the individual's application and did not disregard any evidence. [Explanation for the finding].
Based on the unique factual circumstances in this case, the agency is stopping the redetermination.
The ALJ vacates all prior decisions or determinations associated with the redetermination, reinstates the finding of disability as of [Date of Original Allowance], and incorporates by reference the findings from the prior hearing decision or determination issued on [Date of Original Allowance].
NOTE 2:
If the evidence was previously disregarded, the ALJ will add the information into the record and consider the evidence in adjudicating the claim. SRC staff will update eView, ENM, or the paper claim(s) file to reflect the evidence was not disregarded.
c. Reason to Believe That Fraud or Similar Fault was Involved in the Provision of Evidence
If the adjudicator finds, after screening the case and considering the individual's objections, there is reason to believe that fraud or similar fault was involved in the provision of evidence in support of the individual's application, then the adjudicator will issue a new decision.
The adjudicator will specifically explain in the decision that:
The ALJ found a reason to believe fraud or similar fault was involved in the providing of evidence from [Mr. Lavallee/Mr. Hale/Mr. Esposito/Mr. Minerva/Dr. Sodaro/Dr. Pierre-Paul] and disregarded that evidence. [Explanation for the finding].
[If some of the evidence was not disregarded] The ALJ found no reason to believe fraud or similar fault was involved in the providing of the following evidence from [Mr. Lavallee/Mr. Hale/Mr. Esposito/Mr. Minerva/Dr. Sodaro/Dr. Pierre-Paul] and did not disregard those pieces of evidence. [Explanation for the finding].
The ALJ considered all of the evidence of record, excluding any disregarded evidence, and decided the case on the remaining evidence.
[If favorable] The ALJ determined that there was sufficient evidence to support a finding of disability as of [Date of Original Allowance].
[If unfavorable] The ALJ determined that there was insufficient evidence to support a finding of disability as of [Date of Original Allowance]. Therefore, SSA is terminating the individual's benefits and may treat the benefits the individual previously received as overpayments. [If the individual has not filed for bankruptcy] The provisions of Subpart F – Overpayments, Underpayments, Waiver of Adjustment or Recovery of Overpayments, and Liability of a Certifying Officer apply. (20 CFR Ch III Subpart F). The individual may request that the overpayment be waived, and SSA will consider such a request under these rules.
The individual may appeal the ALJ's decision regarding the issue of disability and the disregarding of evidence.
For all evidence, other than evidence from the sources listed in subsection III.B.2.a., the ALJ will use the procedures in SSR 22-2p to determine whether to disregard evidence because of fraud or similar fault. See also HALLEX I-1-3-15 D. If the ALJ disregards other evidence based on a fraud or similar fault issue, the ALJ must clearly address the other evidence and explain why it was disregarded. See HALLEX I-2-10-14. The individual may appeal the fraud or similar fault finding.
8. Routing
The Northeastern Program Service Center (NEPSC) is handling all payment matters relating to redeterminations of New York cases. SRC staff will manually change the PSC DOORS code in CPMS and HACPS to “S0A” for “Title 2 Routing,” when closing the case in CPMS and HACPS. When a redetermination decision is issued, regardless of whether it is favorable or unfavorable, SRC staff must notify the NEPSC via email at ||NY ARC PCO DPB NEPC. SRC staff will use the subject line “OHO redetermination decision-NY” and include the following message in the text of the email:
An ALJ has issued a redetermination decision on a New York case for [individual's name (SSN: ###-##-####)]. The [unfavorable/favorable] decision is [attached/in eView/in ENM]. Please take any necessary action to [cease/initiate] payment in this case and notify any other PSC that may be affected by this action. Thank you.
NOTE:
Sending an email to the NEPSC is critical to ensure these decisions are properly and promptly effectuated. For example, if an ALJ issues a favorable decision, CPMS or HACPS will generate an automated alert to the PSC with jurisdiction over the individual's SSN. The NEPSC must be notified immediately so it can notify the other PSC of the change in jurisdiction.
Send paper folders requiring further action by the NEPSC to:
Social Security AdministrationNortheastern Program Service Center
PO Box 319100
Jamaica, NY 11431-9819
9. Representative Fee Issues
On appeal of a redetermination action, there is a possibility that past due benefits have accumulated if a favorable decision is warranted. When past due benefits have accrued, all other statutory requirements for approving a fee agreement are met, and no exceptions apply, the ALJ will approve a fee agreement for an appointed representative. For statutory requirements, see HALLEX I-1-2-12.
If a fee agreement is not applicable or is not approved, an appointed or previously appointed representative can submit a fee petition for services they provided, and the ALJ will use the applicable procedures in HALLEX I-1-2 for evaluating these requests and determining a reasonable fee. However, if a representative submitted a contingent fee contract, the representative is not entitled to request a fee unless the redetermination resulted in a favorable decision. See HALLEX I-1-2-51.
NOTE:
Although Mr. Lavallee is now disqualified as a representative, he could submit a fee petition in a case for services provided before the date of his disqualification. When evaluating any such fee petition, the ALJ may take Mr. Lavallee's plea agreement into consideration when reviewing the services provided and the results achieved. For authority and additional instruction, see HALLEX I-1-1-57.
Issues relating to any authorized fee to Mr. Lavallee during the original adjudication are outside the scope of this instruction. However, if Mr. Lavallee submits a fee petition in a case in which a fee was previously authorized, please refer the issue to the Office of the Chief Administrative Law Judge for additional instruction.
IV. Appeals Council Procedures
The instructions below apply to cases before the Appeals Council (AC) in which SSA has identified the applications as including evidence from the sources described in subsection III.B.2.a. and where the case was redetermined (i.e., the case was a closed case subject to a readjudication).
NOTE:
OAO received a list of previously adjudicated cases that required redeterminations under section 205(u) of the Act. Designated adjudicators processed these cases and designated staff established cases in the Appeals Review Processing System (ARPS) with the case characteristic “NYRD” (New York Redetermination).
A. Handling Request for Review When the Disregarding of Evidence Is an Issue
If the AC receives a request for review in a case in which a prior adjudicator disregarded evidence at another administrative level under subsection III. above, the AC will assess whether the evidence was properly disregarded and follow its usual request for review procedures. In processing requests for review in these cases, the AC will keep in mind that under SSR 22-1p and SSR 22-2p, before an adjudicator disregards evidence at the hearings level, they will consider the individual's objection to the disregarding of that evidence. The AC will generally grant review and remand cases where the individual has not yet been afforded that opportunity.
1. Documenting the System and the Record
OAO staff will ensure any redetermination cases involving evidence from a source identified in subsection III.B.2.a. above include the case characteristic “NYRD” (New York Redetermination) in ARPS.
NOTE:
If OAO staff encounter a case that does not have the case characteristic “NYRD” and which contains evidence from one of the sources listed in subsection III.B.2.a. that was not identified at another administrative level, they will consult with the Executive Director's Office (EDO) by sending an email to ^DCARO OAO Fraud Redetermination to verify whether the case requires processing under this instruction.
If a Possible Fraud or Similar Fault (Special F) flag is not already part of the record, OAO staff will add one in eView for an electronic claim(s) file or attach the flag to the front of a paper claim(s) file.
Additionally, if it is not already part of the record, the AC will add a copy of the applicable DA referral, indictments of the four principal facilitators, their plea agreements, and any other relevant document(s) to the claim(s) file. In paper cases, staff will add the documents to Part B - Jurisdictional Documents/Notices (red tab) of the claim(s) file. In electronic cases, staff will upload the documents using document type 7011-Misc. Jurisdictional Documents/Notices to Part B - Jurisdictional Documents/Notices (red tab) of the claim(s) file. See Attachments 1, 2, and 3 for copies of these materials.
2. Evidence
Under section 205(u) of the Act, SSA must disregard evidence if there is reason to believe that fraud or similar fault was involved in providing the evidence. Before SSA disregards evidence pursuant to section 205(u)(1)(B) of the Act at the hearings level of the administrative review process, it will consider the individual's objection to the disregarding of the evidence.
NOTE 1:
The DA's 2014 referral letter, the indictments, and the plea agreements of the four principal facilitators are related solely to allegations regarding mental impairments. Therefore, adjudicators will not evaluate the disregard of any evidence regarding an alleged physical impairment(s), even if that evidence was submitted by one of the four principal facilitators.
NOTE 2:
In some cases, it may also be appropriate to disregard evidence provided by a source who was not involved in the fraud scheme described in subsection II. For example, if a physician relies on medical evidence from one of the sources listed in subsection III.B.2.a. that the AC disregards, then the AC must also disregard the parts of the physician's report relying on the disregarded evidence, or, when based solely on the disregarded evidence, the entire document. When the degree of reliance on evidence from one of the sources listed in subsection III.B.2.a. is unclear, the AC will evaluate the evidence in accordance with SSA's existing policies regarding the evaluation of medical evidence. However, before the AC disregards any evidence, the AC must ensure the individual had previously been provided the opportunity to object to the disregarding of that evidence at the hearings level.
3. Exhibiting and Marking Issues
Disregarded evidence must remain in the claim(s) file, and the AC must ensure that evidence from any of the sources listed in subsection III.B.2.a. (or other disregarded evidence) is clearly identified. Generally, the ALJ should have exhibited disregarded evidence, and the AC must ensure that disregarded evidence is clearly identified as disregarded. In electronic cases, the AC will ensure staff noted the information as “DISREGARDED-FSF” in the Notes in eView or ENM. In a paper claim(s) file, the AC will ensure staff added “DISREGARDED-FSF” on the first page of the information with the number of pages, and on each subsequent page. To illustrate, a 2-page submission that the AC disregards would be marked as follows: page 1 “DISREGARDED-FSF 1/2” and page 2 “DISREGARDED-FSF 2/2.”
NOTE:
To ensure that the individual and any representative with access to the electronic file can identify and object to the disregarding of the evidence in question, SRC staff will exhibit the evidence, even if the ALJ determines that it should be disregarded. The AC will not identify evidence as “disregarded” unless the individual had previously been provided the opportunity to object to the disregarding of the evidence at the hearings level. If the AC subsequently determines that the agency should not have disregarded the evidence, OAO staff will update eView, ENM, or the paper claim(s) file to reflect the evidence was not disregarded.
4. Fraud or Similar Fault – Finding at Another Administrative Level
a. Evidence Automatically Disregarded
If the AC receives a request for review in a redetermination case processed under this instruction in which an ALJ, under now rescinded SSR 16-1p: Titles II and XVI: Fraud and Similar Fault Redeterminations Under Sections 205(u) and 1631(e)(7) of the Social Security Act or SSR 16-2p: Titles II and XVI: Evaluation of Claims Involving the Issue of Similar Fault in the Providing of Evidence, automatically disregarded the evidence without a fraud or similar fault finding, the AC will generally grant review. The automatic disregarding of evidence is an error of law that requires the AC to grant review to issue a fully favorable decision or remand.
b. Cases with Fraud or Similar Fault Findings
If the AC receives a request for review in a redetermination case processed under this instruction and the ALJ made a finding regarding whether there was reason to believe that fraud or similar fault was involved in the providing of evidence under now rescinded SSR 16-1p or SSR 16-2p or under SSR 22-1p or SSR 22-2p, then the AC will assess whether the ALJ properly followed the instructions in subsection III. and follow its usual request for review procedures. If a grant review action is appropriate after reviewing the remaining evidence, the AC will follow the instructions in subsection IV.A.5. below.
c. Cases without Fraud or Similar Fault
If the ALJ did not address an issue of fraud or similar fault, but the AC identifies that issue on review, the AC will generally grant review and either remand the case to an ALJ or issue a decision using the language in subsection IV.A.5.c. below.
5. AC Actions
In all cases, the AC will use the standard notice from the Document Generation System (DGS) with modifications as noted below.
a. Dismissal of Request for Review
The AC may dismiss requests for review for cases involving fraud or similar fault identified at a prior level of adjudication under the circumstances set forth in HALLEX I-3-4-1. When appropriate, no change to the standard notice is required. However, if the dismissal criteria are present but would result in the payment of benefits, the AC will consult with the EDO before taking any action.
b. Denial of Request for Review
As provided in subsection IV.A.4., the AC will not deny requests for review in cases in which a prior adjudicator automatically disregarded suspect evidence without determining whether there is a reason to believe fraud or similar fault was involved in the provision of the evidence, or the adjudicator did not provide the individual the opportunity to object to the disregarding of the evidence. The AC may otherwise deny a request for review provided there is no basis under the regulations for granting or dismissing the request (see HALLEX I-3-3-1).
c. Grant Review Action
A grant review action is appropriate if any basis for granting review is present.
The AC may issue a decision to resolve an issue of fraud or similar fault when the file contains sufficient evidence to determine whether there is reason to believe that fraud or similar fault was involved in the provision of evidence, the individual was provided the opportunity to object to the disregarding of the evidence at the hearings level, and a remand is not necessary to decide all adjudication issues involved in the claim.
The AC will evaluate whether it can issue a fully favorable decision in the absence of the suspect evidence. If the record supports a fully favorable decision, the AC will issue the decision following its usual procedures in HALLEX I-3-8 and the instructions below on evaluating fraud or similar fault in the decision, as appropriate.
If the AC is unable to issue a decision, the AC will remand the case for a new hearing and decision.
For example, if the hearing decision did not address whether evidence was being disregarded, but the evidence is identified as “disregarded” in the claim file, and the individual has had the opportunity to object to the disregarding of evidence at the hearings level, the AC may issue a corrective unfavorable decision that disregards evidence from the source(s) identified in subsection III.B.2.a. The AC may also issue a favorable decision when an ALJ erred in disregarding evidence and the redetermination should have been stopped. When reopening issues are involved, see HALLEX I-3-10-7.
Remand
If the AC remands the case, the remand order will identify the suspect evidence and instruct the ALJ to make a finding as to whether there is a reason to believe that fraud or similar fault was involved in the provision of evidence.
Decision
When issuing a decision on a case with a record that contains any of the evidence as outlined in subsection III.B.2.a. above, the AC will use the procedures in SSR 22-1p and SSR 22-2p to determine if there is a reason to believe that fraud or similar fault was involved in the provision of the evidence.
In determining if there is a reason to believe fraud or similar fault was involved in the provision of the evidence, the AC may consider, among other evidence, the indictments of the four principal facilitators, their plea agreements, and the DA's 2014 referral letter.
NOTE:
SSA generally does not develop evidence of an individual's intent. Therefore, a finding of similar fault in accordance with SSR 22-2p is sufficient for the AC to disregard the evidence at issue.
The AC will also use the procedures in SSR 22-2p and HALLEX I-3-10-5 to determine whether to disregard, based on fraud or similar fault, any other evidence individuals or entities other than those identified in subsection III.B.2.a. above submitted, supplied, or sourced. If the AC disregards other evidence based on a fraud or similar fault issue, the AC must ensure the individual was previously provided the opportunity to object to the disregard of this other evidence, and in the AC decision, clearly address the other evidence, and explain why it disregarded that evidence.
Decision Language - General
In all decisions, the AC will specifically explain that:
The New York County District Attorney's Office (DA) and the Office of the Inspector General (OIG) of the Social Security Administration (SSA) conducted an extensive criminal investigation that resulted in the criminal indictment and conviction of principal facilitators Raymond Lavallee, Thomas Hale, Joseph Esposito, and John Minerva, who admitted to conducting a scheme to make false statements or other representations to SSA in order to obtain fraudulent benefits for others. Numerous individual beneficiaries have also been indicted and convicted in connection with the DA's investigation.
The DA referred this case to SSA as one where Mr. Lavallee was the individual's attorney representative, and the facts of the case are similar to those involved in the fraudulent scheme. The file contains evidence from one or more of the principal facilitators regarding a mental impairment(s) alleged in the case that SSA used to find the individual disabled or from one of the doctors the DA identified as having been involved in the scheme. Therefore, the ALJ determined whether the individual was entitled to benefits on or before [Date of Prior Determination or Hearing Decision], the date SSA initially allowed the claim(s).
Under section 205(u) of the Social Security Act (Act), SSA must redetermine an individual's entitlement to disability benefits and disregard evidence when there is reason to believe fraud or similar fault was involved in that individual's application for benefits.
The ALJ was required to make a finding regarding whether there is reason to believe fraud or similar fault was involved in the providing of the following evidence dated between January 1, 1988 and December 18, 2013: any evidence regarding a mental impairment submitted by one of the four principal facilitators; and medical evidence from two psychiatrists identified by the DA in the referral letter as participating in the alleged scheme, Dr. Edward Sodaro and Dr. Raymond Pierre-Paul.
[If applicable] The ALJ allowed the individual the opportunity to object to the disregarding of evidence from [Mr. Lavallee/Mr. Hale/Mr. Esposito/Mr. Minerva/Dr. Sodaro/Dr. Pierre-Paul]. [If applicable] The [ALJ/AC] considered the individual's objections to the disregarding of evidence. [Explanation for the finding].
No Reason to Believe That Fraud or Similar Fault was Involved in the Provision of Evidence – Fully Favorable Decision Warranted
If the AC finds no reason to believe fraud or similar fault was involved in the providing of evidence from any of the sources listed in subsection III.B.2.a. and does not disregard any evidence, the AC will stop the redetermination process, vacate all prior decisions or determinations associated with the redetermination, reinstate the finding of disability as of the date of original allowance, and incorporate by reference the findings from the prior hearing decision or determination issued on the date of original allowance.
NOTE:
The AC will not alter any of the findings or rationale in support of the original allowance because the agency is ceasing all redetermination actions in the individual's case.
The AC will specifically explain in the favorable decision that:
The Appeals Council determined that there was insufficient evidence to establish a reason to believe that fraud or similar fault was involved in the provision of evidence in support of the individual's application and did not disregard any evidence. [Explanation for the finding].
Based on the unique factual circumstances in this case, the agency is stopping the redetermination.
The Appeals Council vacates all prior decisions or determinations associated with the redetermination, reinstates the finding of disability as of [Date of Original Allowance], and incorporates by reference the findings from the prior hearing decision or determination issued on [Date of Original Allowance].
Reason to Believe That Fraud or Similar Fault was Involved in the Provision of Evidence
If the AC finds there is reason to believe that fraud or similar fault was involved in the provision of evidence in support of the individual's application, then the AC will specifically explain in the decision that:
The Appeals Council found a reason to believe fraud or similar fault was involved in the providing of evidence from [Mr. Lavallee/Mr. Hale/Mr. Esposito/Mr. Minerva/Dr. Sodaro/Dr. Pierre-Paul] and disregarded that evidence. [Explanation for the finding].
[If some of the evidence was not disregarded] The Appeals Council found no reason to believe fraud or similar fault was involved in the providing of the following evidence from [Mr. Lavallee/Mr. Hale/Mr. Esposito/Mr. Minerva/Dr. Sodaro/Dr. Pierre-Paul] and did not disregard those pieces of evidence. [Explanation for the finding].
The Appeals Council considered all of the evidence of record, excluding any disregarded evidence, and decided the case on the remaining evidence.
[If favorable] The Appeals Council determined that there was sufficient evidence to support a finding of disability as of [Date of Original Allowance].
[If unfavorable] The Appeals Council determined that there was insufficient evidence to support a finding of disability as of [Date of Original Allowance]. Therefore, SSA is terminating the individual's benefits and may treat the benefits the individual previously received as overpayments. [If the individual has not filed for bankruptcy] The provisions of Subpart F – Overpayments, Underpayments, Waiver of Adjustment or Recovery of Overpayments, and Liability of a Certifying Officer apply. (20 CFR Ch III Subpart F). The individual may request that the overpayment be waived, and SSA will consider such a request under these rules.
The individual may appeal the Appeals Council's decision regarding the issue of disability and the disregarding of evidence.
6. Special Procedures in Redeterminations
Regarding cases that SSA redetermined at the initial, reconsideration or hearings level, the AC will keep in mind that:
The ALJ may not dismiss the case when the case was redetermined at the hearings level.
The ALJ may dismiss a request for hearing if the case was redetermined at the initial or reconsideration levels, the individual appealed the case to the hearings level, and the criteria for dismissal are present. For more information about the dismissal criteria at the hearings level, see HALLEX I-2-4-5.
If the case was redetermined at another administrative level, the AC may dismiss a request for review if dismissal criteria are present. For dismissal criteria at the AC level, see HALLEX I-3-4-1.
In cases processed under this instruction, ALJs cannot automatically disregard evidence. Prior to disregarding evidence, ALJs must determine whether there is reason to believe that fraud or similar fault was involved in the provision of evidence in support of the individual's application. Because of the unique factual circumstances of a case, when an ALJ determines there was insufficient evidence to establish a reason to believe that fraud or similar fault was involved in the provision of evidence, all actions related to the redetermination must cease and the ALJ will issue a fully favorable decision in accordance with the instructions in subsections III.B.7.a. and III.B.7.b. above.
If SSA disregarded evidence at the initial and reconsideration levels, but that evidence is dated outside the relevant timeframe(s), the ALJ should have addressed the evidence as outlined in HALLEX I-2-10-10 and I-2-10-14. Similarly, if another administrative level (initial, reconsideration or hearings level) makes an independent fraud or similar fault finding, the usual review procedures outlined in HALLEX I-3-10-1 apply.
If a new application has been filed the AC usually will not direct the ALJ that the claim(s) be consolidated because there is no “common issue” as defined in POMS DI 12045.010 (i.e., there are different issues and time periods involved in the redetermination claim and the subsequent application). See HALLEX I-1-3-25.
The ALJ will consider the claim(s) only through the date of the final and binding determination or decision on the individual's application for benefits (i.e., the original allowance date). The ALJ may find a potential onset date of disability that is different than the individual's alleged onset date of disability. However, in all cases, the ALJ is limited in adjudicating through the date of the original allowance date. See SSR 18-1p and SSR 18-2p.
If the individual submitted evidence to the ALJ documenting an additional impairment that began after the original allowance date, the ALJ will not consider or develop the evidence of the new impairment during the redetermination.
In a redetermination case, adjudicators must apply the listings in the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1) that were in effect at the time of the original favorable determination or decision. See POMS DI 34100.000.
When handling a request for review when a case was redetermined at a prior administrative level, the AC will follow the national uniformity rules regardless of when the original favorable determination or decision was issued. See 20 CFR 404.970-979.
On February 25, 2020, SSA published a rule, “Removing Inability to Communicate in English as an Education Category” in the Federal Register (85 FR 10586) (“new rules”). On March 9, 2020, the agency also published SSR 20-01p. On June 27, 2020, the agency implemented the new rules and began applying them in all determinations and decisions. In processing cases redetermined under section 205(u) of the Act, adjudicators must use the education categories and grid rules that were in effect at the time the agency made the original favorable determination or decision. See HALLEX I-5-6-15 for a copy of the prior education categories and grid rules.
7. Routing
a. Remand
The SRC will handle all AC remand orders for the redetermination of New York cases processed under this instruction. When closing out a case in ARPS, OAO staff will ensure that the remand is routed to the SRC and not the originating hearing office.
OAO staff will update the hearing office code under “Final Routing Information” to 5ZU for “Title 2 Routing” when closing the case in ARPS and send an email to the SRC at |||OHO OCALJ NSD Special Review Cadre to alert the SRC of the remand. For paper cases, OAO staff will mail the claims file to the following address:
Special Review Cadre1718 Woodlawn Drive
Woodlawn, MD 21207
b. Decisions
The NEPSC will handle all payment matters relating to redeterminations of New York cases. When a redetermined decision is issued, regardless of whether it is favorable or unfavorable, OAO staff must notify the NEPSC via email at ||NY ARC PCO DPB NEPC. OAO staff will use the subject line “OAO redetermination decision-NY” and include the following message in the text of the email:
OAO has issued a redetermination decision for [individual's name (SSN: ###-##-####)]. The [unfavorable/favorable] decision is [attached/in eView/in ENM]. Please take any necessary action to [cease/initiate] payment in this case and notify any other PSC that may be affected by this action. Thank you.
NOTE:
Sending an email to the NEPSC is critical to ensure these decisions are properly and promptly effectuated. For example, if a favorable decision is issued, ARPS will generate an automated alert to the PSC with jurisdiction over the individual's SSN. The NEPSC must be notified immediately so it can notify the other PSC of the change in jurisdiction.
Send paper folders requiring further action by the NEPSC to:
Social Security AdministrationNortheastern Program Service Center
PO Box 319100
Jamaica, NY 11431-9819
8. Representative Fee Issues
On appeal of a redetermination action, there is a possibility that past due benefits have accumulated if a favorable decision is warranted. When past due benefits have accrued, all other statutory requirements for approving a fee agreement are met, and no exceptions apply, the AC will approve a fee agreement for an appointed representative. For statutory requirements, see HALLEX I-1-2-12.
If a fee agreement is not applicable or is not approved, an appointed or previously appointed representative can submit a fee petition for services they provided, and the AC will use the applicable procedures in HALLEX I-1-2 for evaluating these requests and determining a reasonable fee. However, if a representative submitted a contingent fee contract, the representative is not entitled to request a fee unless the redetermination resulted in a favorable decision. See HALLEX I-1-2-51.
NOTE:
Although Mr. Lavallee is now disqualified from serving as a representative before SSA, he could submit a fee petition in a case for services provided before the date of his disqualification. When evaluating any such fee petition, the AC may consider Mr. Lavallee's plea agreement when reviewing the services provided and the results achieved. For authority and additional instruction, see HALLEX I-1-1-57.
Issues relating to any authorized fee to Mr. Lavallee during the original adjudication are outside the scope of this instruction. However, if Mr. Lavallee submits a fee petition when a fee was previously authorized, please refer the issue to the EDO for additional instruction.
V. Inquiries
OHO staff will direct all program-related and technical questions through appropriate management channels.
In OAO, staff and adjudicators will direct any program-related or technical questions to the EDO at ^DCARO OAO Fraud Redetermination.