Identification Number:
Intended Audience:All ODAR, SCs/PSCs/RCs/ARCs/FOs/OCO/ODO/ OCO-CSTs/TCCs/DDSs
Originating Office:ODP OVEPP
Title:Requiring eFolder Access by Certain Appointed Representatives – Instructions Will Follow Shortly
Type:EM - Emergency Messages
Program:Title II (RSI); Title XVI (SSI)
Link To Reference:See References at the end of this EM.
Retention Date: July 16, 2020

A. Purpose of the Emergency Message

As of August 16, 2016, appointed representatives who are eligible for and request direct payment of their fee must access and obtain all information and evidence in the related case file online for cases pending at the hearing or the Appeals Council (AC) levels. We will no longer provide these appointed representatives with a compact disc (CD) copy of the electronic claim file. This requirement is part of our larger mandate that such representatives conduct business with us electronically.

This new policy and procedure does not affect representatives who are not eligible for direct pay, nor does it apply in cases where the claim file is not electronic (“paper claims”) or cases that are pending at the initial and reconsideration level.

NOTE: The Office of Disability Adjudication and Review (ODAR) has been working to register appointed representatives prior to the effective date, August 16, 2016. If representatives contact a field office (FO) or a Disability Determination Services (DDS) office and ask about registering for eFolder access, please refer them to their closest hearing office (HO).

B. Background for the requirement to use the agency’s online services

On September 12, 2011, we issued a Final Rule requiring appointed representatives to conduct business with us using our prescribed online services when a representative is eligible for and requests direct fee payment. 76 FR 56107. Pursuant to this rule, we first required these appointed representatives to submit certain appeals electronically. On April 18, 2016, we published a Federal Register Notice as notification of a second requirement. This requirement instructs appointed representatives to access our electronic claim folder (eFolder) online for each eligible case in which they seek direct payment of the fee. It is effective on August 16, 2016. 81 FR 22697.
On April 18, 2016, ODAR published Hearings, Appeals and Litigation Law (HALLEX) manual I-5-1-22, to give advance notice to representatives of how it intended to implement this new requirement. The instructions will be effective August 16, 2016.

C. Policy for the new requirement to access claim evidence online

Appointed representatives who are eligible for and request direct fee payment are required to use our electronic services as prescribed. The second service prescribed under this requirement is accessing a claimant’s claim(s) file online for cases that are pending review by an Administrative Law Judge (ALJ) or the AC. We call this “eFolder access”. Under this new requirement, most representatives who request direct payment are required to use eFolder access in lieu of requesting a CD copy (burned CD) of the claims folder. In cases where the claimant has appointed multiple representatives, only the representative designated as the “principal representative” is subject to the requirement because we only grant access to the eFolder to the principal representative on a case. However, we will not provide CDs to any non-principal representative in cases where the non-principal representative is affiliated with the principal representative via the same Employer Identification Number (EIN) on the Form SSA-1695 (Identifying Information for Possible Direct Payment of Authorized Fees), and the principal representative is requesting direct payment. In this situation, we expect the non-principal representative to coordinate with the principal representative to get copies of the claim folder, as necessary. For more information about how ODAR handles multiple representative situations, see HALLEX I-5-1-22 IV.

The requirement only applies to those cases that have an electronic file and are on appeal before an ALJ or the AC. However, the requirement does not apply to any of the following:

    · claimants,
    · cases at the initial and reconsideration levels,
    · non-principal representatives who are not affiliated with the same EIN as the principal representative on a particular case,
    · representatives who do not seek direct payment,
    · representatives who cannot register for eFolder access through no fault of their own (e.g., there is no cell phone coverage); and
    · all representatives only when our systems or other technology limitations preclude access to the eFolder. The following is a list of common situations:
        a. A claim is pending AC review and a subsequent claim is filed and pending at the hearing level;
        b. Parties file a late appeal but the prior case has been closed for over 90 days; or
        c. The AC established a new court case, consequently making the eFolder unavailable.

In the first instance that a representative fails to comply with this requirement, ODAR will take action to remind the representative about the new policy and procedure. See HALLEX I-5-1-22 (IV) (B), for additional information. If the representative continues to be non-compliant and we ascertain (and document) a pattern of repeated violations, ODAR may refer the case to the Office of the General Counsel (OGC) for investigation and possible sanctions. For example, ODAR staff may observe that claimants who are associated with a particular appointed representative who requests direct payment frequently request CD copies of their files and there is indication that the claimants do so at their representative’s advice.

D. Procedure for developing the referral to OGC when the claim is pending at ODAR or AC

    1. Request for a CD made at the FO or DDS
      Direct the inquirer to the HO that has jurisdiction of the claim and the Certified Electronic Folder (CEF) per DI 81001.030B.
    2. Request for a CD made at ODAR or AC

NOTE: Do not contact the representative if the suspected violation:
    · is criminal,
    · involves fraud, or
    · is a non-fee violation unrelated to our electronic services mandate (e.g., an allegation of failure to provide competent representation).

Refer suspected criminal cases to the Office of the Inspector General (OIG) and the Office of the General Counsel (OGC) per the instructions in GN 03970.016. HO, RO, and PSC staff must retain referral development in a separate file. Do not store referral development in the claim file, eView, Non Disability Repository Application (NDRed) or Case Processing and Management System (CPMS).
    E. Handling public inquiries

    Refer any inquiries about this rule to your regional office.

    F. Federal Register Notice, 81 FR 22697

      ODAR ARS 04-18-16.pdfODAR ARS 04-18-16.pdf

      Direct all program-related and technical questions to your Regional Office (RO) support staff or Program Service Center (PSC) Operations Analysis (OA) staff. RO support staff or PSC OA staff may refer questions, concerns or problems to their Central Office contacts.

      HO personnel will direct any questions to HO management, who will forward the questions to the RO if needed. RO staff may refer questions or unresolved issues to the appropriate Headquarters contacts.

      76 FR 56107 Requiring Use of Electronic Services by Certain Claimant Representatives
      81 FR 22697 Requiring Electronic Access to the Electronic Folder by Certain Claimant Representatives
      GN 03970.016 Referral of Suspected Criminal Violations to the Office of the Inspector General by Field Offices, the Processing Centers, and the Disability Determination Services
      DI 81001.030 Claimant or Representative Requests a Copy of the Claims Folder
      HALLEX I-5-1-22 Requiring Certain Representatives to Access the Electronic Claim(s) File Through Appointed Representative Services
      HALLEX I-1-1-50 Referring a Suspected Violation
      EM-16027 - Requiring eFolder Access by Certain Appointed Representatives – Instructions Will Follow Shortly - 08/16/2016