PR 07705.034 New Mexico
A. PR 04-058 Ethics Opinion Regarding the Ability of a Social Security Administration Medical Expert to Represent Claimants Before the Agency REPLY
DATE: January 7, 2004
This opinion addresses a possible conflict of interest between a physician's duties as a SSA contract physician and his representing claimants and acting as a medical expert for his wife's clients before SSA. The following facts must be considered:
As a contract employee, the doctor is not an employee of the federal government.
The laws that govern conflict of interest issues as they relate to federal employees do not apply to contractors.
The Blanket Purchase Agreement (Contract between government and physician) states that the contractor may provide services to others outside the scope of the BPA as long as there is not a conflict of interest as determined by the ALJ who hears the case. Based on the fact that the physician is not a federal employee and the BPA, a conflict of interest does not exist unless the ALJ determines that there is a conflict of interest.
This memorandum is in response to your request for a legal opinion regarding the ethical implications of a Social Security Administration (SSA) contract physician representing claimants in hearings before the Agency's Office of Hearings and Appeals (OHA). Under separate contracts, the physican is currently contracted to serve as the Regional Medical Consultant Coordinator (RMCC) and as a medical expert testifying at Social Security administrative hearings. You have also asked whether the physician's status as an SSA contract physician would affect his spouse's ability to represent claimants at OHA hearings and whether the physician could review medical evidence of claimants represented by his wife and render a medical opinion on the evidence, either to her privately or on her claimant's behalf at OHA hearings. For the reasons set forth below, it is our conclusion that an SSA contracted physician is not bound by the standards of conduct applicable to Federal employees and is only prohibited from engaging in activities as provided by his contract. Dr. B~' contract for his position as RMCC prohibits him only from being involved in particular cases in which he has prior knowledge or experience. Further, the contract under which he renders services as a medical expert at OHA disability hearings essentially provides that the ALJs before whom he appears as a medical expert may determine whether there is a conflict of interest between any services he provides outside of his contract and his acting as a medical expert at OHA hearings. His wife's ability to represent claimants is not affected by either contract.
According to the information you provided, Steven B~, M.D., serves as the RMCC under contract with SSA and is also a contracted medical expert for SSA to provide medical opinions during administrative proceedings before Administrative Law Judges. Dr. B~ would like to represent claimants before OHA and continue his roles as RMCC and as a medical expert. Additionally, Dr. B~' wife would like to represent claimants. He would like to review medical records of his wife's clients, give his wife medical advice about her clients, and testify as a medical expert on behalf of his wife's clients.
Federal conflict of interest provisions prohibit government employees from representing individuals in claims against the United States and subject the employee to criminal penalties under 18 U.S.C. 216. See 18 U.S.C. 205(a). However, as a contractor rather than an employee, these provisions do not apply to Dr. B~. Similarly, the Standards of Ethical Conduct for Employees of the Executive Branch, by definition, apply only to "any officer of employee of an agency, including a special Government employee." 5 C.F.R. § 2635.102(h). Thus, they do not pertain to government contractors.
The regulations allow a claimant to appoint an individual who is not a liscensed attorney as a representative if the person is generally known to have a good character and reputation, is capable of giving valuable help in connection with a claim, is not disqualified or suspended from acting as a representative in dealings with SSA, and is not prohibited by any law from acting as a representative. 20 C.F.R. § 404.1706(b). The regulations do not specifically prohibit a claimant from appointing a contract physican for SSA as his or her representative.
The OHA Hearings, Appeals and Litigation Law Manual (HALLEX) states "medical experts are physicians and mental health professionals who provide impartial expert opinion at the hearing level on claims under Title II, Title XVI and Title XVIII of the Social Security Act . . . by either testifying at a hearing or responding in writing to interrogatories." HALLEX: I-2-5-32. Each regional OHA office maintains a roster of medical experts who have agreed to provide impartial expert opinion pursuant to a blanket purchase agreement. Every physican who is asked by SSA to testify as a medical expert must be covered by the blanket purchase agreement unless a medical expert in a specialty not covered by the roster is needed, or other circumstances require a one-time purchace of a physican's services is required. HALLEX: 1-2-5-31.
We obtained copies of AG 03-01 Disability Blanket Purchase Agreement (BPA), which has been sent to Dr. B~. The BPA contains provisions regarding conflicts of interest. Section E, VI, of the BPA states the contractor may render services outside the scope of this BPA to individuals [and] organizations . . . provided it does not present a conflict of interest as determined by the ALJs before whom the contractor appears. By signing the agreement, the contractor also agreed not to provide services:
In any case in which any relative of the contractor, in his/her official capacity as an employee or officer of the SSA has personally participated in any manner including, but not limited to, the consideration, preparations or processing of the claim which is the subject of a hearing: or
In any hearing office that employs a relative of the contractor unless the contractor has first obtained the prior written authorization of the Associate Commissioner of OHA.
See BPA, VI, Section E. The agreement defines relative as the contractor's spouse, child, parent, sibling or any person living in the same household as the contractor. While there is no specific provision in the contract against testifying as a medical expert in a case where the contractor or his relative has provided services as a claimant's representative or as a medical advisor to the representative, we believe this would be seen as a clear conflict of interest by the ALJ before whom the contractor appeared. As addressed above, the BPA allows the ALJ before whom the contractor is to appear to determine whether there is a conflict of interest in a particular case.
Moreover, the Vocational and Medical Expert Programs Operational Manual (Manual), which provides terms under which medical expert rosters are maintained, states "When it is agreed for reasons such as incompetence, conflict of interest, etc. that the services of an expert witness will no longer be utilized: the hearing office should immediately cease to use the expert's services [and] the expert's name should be immediately removed from the Regional office and hearing office rosters of available witnesses. At BPA renewal time, the expert should be notified in writing that his/her BPA will not be renewed." Manual. The BPA provides that the Government is obligated only to the extent of authorized purchases actually made under the agreement. BPA, III, Section D. Thus, in addition to individual ALJs deciding not to use Dr. B~' services as a medical expert because the ALJ perceives a conflict of interest, if there were a consesus of the ALJs within the hearing office where Dr. B~ is on the roster as a medical expert that there is an inherent conflict of interest between Dr. B~' represetation of some claimants and his services as an impartial medical expert, the Agency would remove his name from the roster and decline to use Dr. B~ as a medical expert.
The separate contract under which Dr. B~ provides services as the RMCC provides that the contractor agrees not to perform consultative examinations for any Disabiltiy Determination Service (DDS), to provide consultative services for any DDS while on contract with SSA, or to acquire or maintain, directly or indirectly, any financial interest in a medical partnership or similar relationship in which consultative examinations for a DDS is provided. The contract also provides that the contractor will disqualify himself from any case in which he has prior knowledge or experience. See Dr. B~' contract as RMCC, Section C. This contract provision would prevent Dr. B~ from engaging in any activities as the RMCC that involved cases of which he had prior knowledge as a representative or medical consultant to his wife on the case, just as it currently prohibits him from having involvement in cases where he testified as a medical expert.
For the reasons set forth above, therefore, it is our opinion, in matters pertaining to the standards of conduct, Dr. B~ is not considered to be an SSA employee. However, he is subject to the conflict of interest provisions that are set out in the two contracts that he has entered into with the Agency. Although SSA policy and federal law will not prohibit him from representing individuals in Social Security claims, the ALJs before whom he appears and testifies may determine that there is an inherent conflict of interest in his various roles and ask that his name be removed from the roster of medical experts used by a hearing office. They would certainly determine that there is a conflict of interest between his appearing as a medical expert in a particular case in which he had been involved in some other capacity. Similarly, Dr. B~' contract as RMCC prohibits him from engaging in activities in cases in which he has prior knowledge. Since Dr. B~ wife is not an SSA employee, she would not be precluded from representing a claimant independently.
Tina M. W~
Regional Chief Counsel
Assistant Regional Counsel