Identification Number:
GN 03970 TN 14
Intended Audience:See Transmittal Sheet
Originating Office:OARO OAO
Title:Suspension or Disqualification of Representatives
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part GN – General
Chapter 039 – Representation and Representative's Fee
Subchapter 70 – Suspension or Disqualification of Representatives
Transmittal No. 14, 08/26/2020

Audience

PSC: CA, CS, ICDS, IES, ILPDS, IPDS, ISRA, RECONR, SCPS, TSA, TST;
OCO-OEIO: BIES, CR, PETL, RECONR, RECOVR;
OCO-ODO: BTE, CR, CST, CTE, CTE TE, PETE, PETL, RCOVTA, RECOVR;
ODD-DDS: DHU;
FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

OAO

Effective Date

Upon Receipt

Background

This transmittal amends the following POMS sections to reflect regulatory changes to the qualifications for non-attorney representatives and the representative sanction process, pursuant to "Rules of Conduct and Standards of Responsibility for Appointed Representatives," which became effective on August 1, 2018 (83 FR 30849).

Summary of Changes

GN 03970.011 Unqualified Non-Attorney and Attorney Representatives

We changed the title of this section to "Potentially Unqualified Attorney and Non-Attorney Representatives" to better follow the organization of GN 03910.020A. We added an introductory paragraph to articulate the actions the agency may take if a representative does not meet certain qualifications for representatives.

Subsection A - Policy for who is an unqualified non-attorney

Subsection B - Policy for who is an unqualified attorney

We deleted subsections A.1 and A.2, bullet points, and B, bullet points, from this section, as the qualifications information for an attorney and non-attorney representative is already in GN 03910.020A.

We created two new subsections in this section. In the new subsection A, titled "Procedure for handling pending claims, matters, or issues with a potentially unqualified attorney representative," we added a reference to GN 03910.020A.1 for qualifications a prospective attorney representative must meet, and moved the information previously provided in subsection B, NOTE, into this subsection. In the new subsection B, titled "Procedures for handling pending claims, matters, or issues with a potentially unqualified non-attorney representative," we added a reference to GN 03910.020A.2 for qualifications a prospective non-attorney must meet, and moved the information previously provided in subsection A, NOTE and last paragraph, into this subsection. We also added language to both new subsections to clarify that after we refer potentially unqualified representatives to the Office of the General Counsel, we must continue to recognize certain non-attorneys and attorneys as the claimant's appointed representative prior to the agency's final disqualification or suspension decision.

 

GN 03970.030 Action to Suspend, Disqualify, or Withdraw Charges Against a Representative by the Office of the General Counsel

Subsection C - Policy for representative's answer

We changed the time the representative has to respond to the General Counsel's charges from 30 to 14 business days (20 CFR 404.1750(c) and 416.1550(c)). We also clarified when the hearing officer may decide the charges based on the record without holding a hearing.

We made editorial changes throughout the section.

 

GN 03970.035 Office of Hearings Operations (OHO) Action on Referral of a Record for a Hearing

We changed the title of this section to "Office of Hearings Operations (OHO)'s Administration of a Hearing on Charges Against a Representative," to better capture the information provided in this section.

Subsection A- Policy for OHO's processing of the request for a hearing by a representative and designation of a hearing officer

We revised the title of the subsection to "Policy for OHO's designation of a hearing officer," and corrected the HALLEX reference and hyperlink to I-1-1-52B, which provides companion information on hearings on the charges.

We also deleted the last paragraph of this subsection in its entirety, as the information in this paragraph repeats the information in GN 03970.030.

Subsection B - Policy for hearing officer's duties for hearing for representatives

We changed the time the hearing officer has to mail the notice of hearing to the parties from 20 to 14 calendar days prior to the date of the hearing, and specified the methods the hearing officer may use to conduct the hearing (20 CFR 404.1765(c) and 416.1565(c)).

We added language to clarify that the hearing officer will not consider objections to the manner of appearance without a showing of good cause (20 CFR 404.1765(d) and 416.1565(d)). We added a new NOTE to clarify each party may file a motion for a decision based on the record of the case (20 CFR 404.1765(g) and 416.1565(g)).

We made editorial changes throughout this section.

 

GN 03970.040 Administration of a Hearing regarding Charges

We deleted this section in its entirety, as the information previously presented in this section is in GN 03970.030C and GN 03970.035A and B. The two references previously presented in this section are now included in GN 03970.035A and GN 03970.050C, NOTE.

 

GN 03970.050 Hearing Office Decision on the Charges

We modified the title of this section to "Hearing Officer's Decision on the Charges," to mirror the title of regulatory provisions 20 CFR 404.1770 and 416.1570.

Subsection A - Policy on hearing officer's decision

We updated the references "Appointed Representative Database" to "Registration, Appointment and Services for Representatives (RASR)" and for "Representative Disqualification/Suspension Information System of Records" to "Representative Disqualification, Suspension and Non-Recognition Information File" to reflect the current names for these systems.

Subsection B - Policy for appeals and the role of the Appeals Council in an appeal of the hearing officer's decision

We changed the time to request Appeals Council review of a hearing officer's decision from 30 to 14 business days (20 CFR 404.1775(b) and 416.1575(b)). We also made minor editorial changes in this subsection.

Subsection C - Reinstatement of a suspended or disqualified representative

We deleted the language "if the suspension is longer than a year" from this subsection, given the minimum suspension period under 20 CFR 404.1770(a)(3)(i) and 416.1570(a)(3)(i) is one year.

We added language to indicate the waiting period before a representative may apply for reinstatement after receiving a prior denial of a request for reinstatement is three years (20 CFR 404.1799(f) and 416.1599(f)).

We fixed a broken hyperlink to List of Sanctioned Representatives.

Subsection D - References

We deleted this subsection in its entirety to remove the outdated reference.

GN 03970.011 Potentially Unqualified Attorney and Non-Attorney Representatives

CITATIONS:

Social Security Act Sections 206(a), 1631(d)(2), and Regulations 20 CFR 404.1705, 404.1745, 416.1505 and 416.1545

The Social Security Act (Act) requires certain qualifications for attorney and non-attorney representatives, see GN 03910.020A. If a representative does not meet these qualifications, the agency may (1) not recognize the appointment, or (2) take action to disqualify the attorney or non-attorney representative based on the guidance in this section

A. Procedure for handling pending claims, matters, or issues with a potentially unqualified attorney representative

If you suspect a prospective attorney representative does not meet the qualifications as stated in GN 03910.020A.1 for us to recognize him or her as a representative in the current case, take the following actions:

  1. 1. 

    Process the written notice of appointment (i.e., Form SSA-1696 or any other writing),

  2. 2. 

    Immediately refer the individual to the Office of the General Counsel (OGC) following the instructions in GN 03970.017 and GN 03970.070,

  3. 3. 

    Continue to recognize the attorney as the claimant's appointed representative unless and until the agency disqualifies or suspends him or her and the decision is final, and

  4. 4. 

    Continue to process the case without delay.

B. Procedure for handling pending claims, matters, or issues with a potentially unqualified non-attorney representative

If you suspect a prospective non-attorney representative does not meet the qualifications as stated in GN 03910.020A.2 for us to recognize him or her as a representative in the current case, take the following actions:

  1. 1. 

    If we had previously recognized the non-attorney as an appointed representative:

    1. a. 

      Process the written notice of appointment (i.e., Form SSA-1696 or any other writing),

    2. b. 

      Immediately refer the individual to the OGC following the instructions in GN 03970.017 and GN 03970.070, and

    3. c. 

      Continue to recognize the non-attorney representative as the claimant's appointed representative unless and until the agency disqualifies or suspends him or her and the decision is final.

  2. 2. 

    If we had not previously recognized the non-attorney as an appointed representative:

    1. a. 

      Do NOT process the written notice of appointment (i.e., Form SSA-1696 or any other writing),

    2. b. 

      Immediately refer the individual to the OGC following the instructions in GN 03970.017 and GN 03970.070,

    3. c. 

      Notify the claimant that he or she is not currently represented while we are evaluating the appointment,

    4. d. 

      Do NOT recognize the appointment until OGC provides guidance on our recognition of the non-attorney, and

    5. e. 

      Continue to process the case without delay.

GN 03970.030 Action to Suspend, Disqualify, or Withdraw Charges Against a Representative by the Office of the General Counsel

CITATIONS:

Social Security Act Sections 205 , 206 , 208 , 1106 , 1631(d)(2) , and
Regulations 20 CFR 404.1740 through 404.1799 and 20 CFR 416.1540 through 416.1599

A. Introduction to General Counsel’s authority

On November 15, 2006, the Commissioner delegated to the General Counsel the authority to initiate, withdraw, and settle representative sanction cases against claimants’ representatives. The Office of the General Counsel (OGC) has redelegated these responsibilities to the Office of General Law (OGL) and the ten Regional OGC offices.

With respect to the procedures described in this section, the term “General Counsel” also includes any authorized designees of the General Counsel.

B. Policy for OGC’s notification to a representative of charges and proposed sanctions

The General Counsel has authority to initiate sanction proceedings against a representative. OGC prepares a notice of charges and proposed sanctions against the representative. If the General Counsel signs the charges, OGC serves this notice on the representative via certified or registered mail to the representative’s last known address. The notice advises the representative to file an answer with OGC stating why he or she should not be suspended or disqualified from acting as a representative before the agency and informs the representative that failure to respond in writing will preclude him or her from presenting evidence during any sanctions proceedings.

C. Policy for representative’s answer

The representative's answer must be in writing, signed under oath (or affirmation), and filed within 14 business days from the date of the notice, or from the date the notice was delivered personally to the representative. The representative may request an extension to file an answer and present good cause as to why he or she needs the extension. Upon a finding of good cause, the General Counsel may extend the representative’s time for filing an answer. The representative must file the answer with OGC at the address indicated in the notice. If the representative fails to file an answer, files an untimely answer without good cause, or files a defective answer, he or she will not have the right to present evidence at a hearing. However, even if the representative loses his or her right to present evidence, the hearing officer may still permit the representative to present a statement about the sufficiency of the evidence or the validity of the proceedings.

D. Policy for withdrawal by OGC of charges prior to the hearing

If the representative's answer or the available evidence establishes to the satisfaction of the General Counsel that the representative should not be suspended or disqualified from acting as a representative before the agency, the General Counsel may withdraw the charges. OGC mails the notice of withdrawal of the charges to the representative at his or her last known address.

E. Policy for OGC’s action initiating a hearing on the violation

If OGC does not receive an answer within the time allowed, or if the General Counsel does not withdraw the charges, the General Counsel will ask the Office of Hearings Operations (OHO), Office of the Chief Administrative Law Judge, to designate an Administrative Law Judge to serve as the hearing officer to adjudicate the case.

F. Policy for OGC’s action when the representative accepts the sanction

A representative may accept a proposed sanction by submitting to the General Counsel a signed written statement in which the representative waives his or her right to a hearing and agrees to accept the sanction. On receipt of the statement, the General Counsel may impose the proposed sanction or reject the statement. If the General Counsel rejects the statement, the General Counsel may:

  • ask the representative to sign an acceptable statement;

  • attempt to enter into a settlement agreement with the representative; or

  • proceed with prosecuting the sanction case.

G. Policy for OGC’s action in a settlement agreement with the representative

Only the General Counsel may enter into settlement agreements with representatives to resolve sanction cases. The General Counsel may settle a case even before filing charges against a representative.

The parties may agree to any terms that are not in violation of Federal law or regulation. If the parties sign a settlement agreement before the General Counsel asks OHO to designate a hearing officer, the agreement becomes effective according to the terms of the agreement. If the parties sign the settlement agreement after OHO designates a hearing officer, the agreement becomes effective when the designated hearing officer enters the agreement into the record, issues an order accepting the agreement, and dismisses the General Counsel’s request for a hearing.

NOTE: Field Office (FO) or Processing Center (PC) staff cannot negotiate any type of settlement with a representative regarding a sanction matter. However, in situations regarding fee violations, the FO or the PC staff can close a case if the representative makes a full refund of the disputed amount upon request before the FO or PC refers the case to OGC. Refer any questions regarding this section to the appropriate OGC office electronically at the addresses listed in GN 03970.070A .

GN 03970.035 Office of Hearings Operations (OHO)'s Administration of a Hearing on Charges Against a Representative

CITATIONS:

Social Security Act 206(a)(1) and

A. Policy for OHO’s designation of a hearing officer

Upon receiving a request from the Office of the General Counsel (OGC) for the designation of a hearing officer, the Office of the Chief Administrative Law Judge (OCALJ) assigns an Administrative Law Judge (ALJ) to serve as the hearing officer for the case following instructions in HALLEX I-1-1-52B.

If the hearing officer holds a hearing, follow policy and procedure in GN 03970.035B through GN 03970.050 .

B. Policy for hearing officer’s duties for hearing for representatives

Either party may object to the assigned hearing officer if the party feels that the hearing officer cannot render an unbiased decision. The hearing officer will consider the objection and decide either to proceed with the hearing or withdraw. If the hearing officer decides that he or she is unable to render an unbiased decision in the case due to prejudice for or against a party, or due to a personal interest in the matter, the hearing officer must recuse himself or herself. In that case, the OCALJ will assign another ALJ to serve as the hearing officer for the case.

The parties to the hearing include the representative against whom charges have been made and an OGC attorney or another delegated official who will represent the agency. An attorney or non-attorney may represent the representative. The hearing officer sets the time and place for an adversarial hearing on the charges. The hearing officer will mail the OGC attorney assigned to the case and the parties a written notice of the hearing at their last known addresses at least 14 calendar days before the date of the hearing. The notice will indicate whether the appearance of the parties or any witnesses will be in person, by video teleconferencing, or by telephone, and provide instructions for filing motions, requesting witnesses, and entering exhibits. The hearing officer may change the time and place for a hearing either on his or her own motion or at the request of a party to the hearing, but will not consider objections to the manner of appearance unless the party shows good cause not to appear in the prescribed manner. The hearing officer may also adjourn or postpone the hearing, or reopen the hearing for the receipt of additional evidence at any time before he or she mails the notice of the decision in the case. The hearing officer gives all parties reasonable notice of any such changes.

NOTE: Regardless of whether the representative filed a timely answer, either party may file a motion for a decision based on the record prior to the hearing. If the hearing officer decides that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, he or she may grant the motion and issue a decision.

Refer questions regarding this section to the appropriate OGC office electronically at the addresses listed in GN 03970.070A .

GN 03970.050 Hearing Officer's Decision on the Charges

A. Policy for hearing officer’s decision

Based on the evidence entered into the record, the hearing officer determines whether the agency proved its charges by a preponderance of the evidence. The hearing officer issues his or her decision in writing, setting forth specific findings of fact and conclusions of law. The hearing officer mails a copy of the decision to all the parties at their last known addresses. The notice accompanying the decision informs the parties of the right to ask the Appeals Council (AC) to review the hearing officer’s decision.

If the hearing officer determines that the agency proved the charges, he or she will either:

  • suspend the individual for a specified period of not less than 1 year or more than 5 years from the date of the decision, or

  • disqualify the individual from further practice before the agency until the individual may be reinstated. For the procedure on reinstatement, see GN 03970.050C.

Disqualification is the only sanction available if the hearing officer sustained the charges because the representative has:

  • been disbarred or suspended from any court or bar to which he or she was previously admitted to practice;

  • been disqualified from participating in any Federal program or appearing before any Federal agency; or

  • collected or received and retained a fee for representational services in excess of the amount that we authorized.

The sanction becomes effective as of the date of the hearing officer’s decision if the representative does not appeal the suspension or disqualification decision to the AC and the time for requesting AC review expires. If the representative has appealed the suspension or disqualification decision to the AC, we continue to recognize the representative’s appointment(s) until the AC issues a final decision.

Components will know when the sanction decision is effective because:

  1. 1. 

    The sanctioned representative’s name will appear on the Sanction List (the Office of the General Counsel (OGC) asks the Office of Hearings Operations (OHO) Division of Information Technology Integration to post the representative’s name on the list);

  2. 2. 

    The sanction information will be entered in the Registration, Appointment and Services for Representatives (RASR) system; and

  3. 3. 

    OGC notifies the following components of the sanction:

    • OGC’s Office of General Law;

    • the Regional Chief Counsel(s) for the region(s) where the representative has been known to practice;

    • the Office of the Chief Administrative Law Judge;

    • the Office of Appellate Operations;

    • the Office of Central Operations;

    • the OHO Regional Attorney for the region(s) in which the representative has been known to practice;

    • the Regional Commissioner(s) for the region(s) in which the representative has been known to practice; and

    • the office that made the referral to OGC.

    OGC’s notice will contain the following information:

    • that we sanctioned the representative;

    • the sanction imposed and the effective date;

    • that the representative’s name will appear on the Intranet List of Sanctioned Representatives ;

    • that our employees should refer to the Intranet website entitled “What to do with a Sanctioned Representative” if the sanctioned representative is appearing before them; and

    • the name of an attorney in OGC to contact with questions about the sanction.

    If the sanctioned representative is an attorney, OGC may also send a copy of the decision to the state bar disciplinary authority for each State or Territory in which OGC knows the representative is licensed to practice law. The agency's Representative Disqualification, Suspension and Non-Recognition Information File system of records (60-0219 ) allows us to disclose: “[t]o a State bar disciplinary authority in the State(s) in which a disqualified/suspended attorney is admitted to practice that SSA has disqualified/suspended the attorney from further practice before SSA and, upon request, further information concerning the disqualification/suspension.”

B. Policy for appeals and the role of the Appeals Council in an appeal of the hearing officer’s decision

Within 14 business days from the date the hearing officer mails the notice of the decision, either party can ask the AC to review the decision. If timely appealed, OGC will not ask OHO to add the representative’s name to the list of sanctioned representatives or notify agency components about the hearing decision during the appeal period. While the appeal is pending, we continue to recognize the representative. See GN 03970.055 for further information regarding recognizing a representative.

If the AC's decision results in the suspension or disqualification of the representative, it is effective from the date of the AC's decision. On receiving a final suspension or disqualification decision, OGC notifies agency staff following the instructions in GN 03970.050A .

C. Reinstatement of a suspended or disqualified representative

We will automatically allow an individual to serve as a representative at the end of any suspension. In addition, after the expiration of one year from the date of the suspension or disqualification, a sanctioned representative may petition the AC for reinstatement. When a sanctioned representative files a petition for reinstatement, the AC gives OGC an opportunity to provide the AC with comments concerning the petition, relevant evidence related to the representative’s activities leading to the sanction, and a written report of any experiences with the suspended or disqualified representative after the date of the suspension or disqualification. If the AC grants reinstatement, OGC will notify the appropriate components within the agency. If the AC denies the representative’s request for reinstatement, the original sanction will remain in effect. If the AC denies the request for reinstatement, it will not consider another request before the end of 3 years from the date of the notice of the previous denial.

NOTE: Refer questions regarding this section to the appropriate OGC office electronically at the addresses listed in GN 03970.070A .


GN 03970 TN 14 - Suspension or Disqualification of Representatives - 8/26/2020