Identification Number:
GN 03970 TN 15
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
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. 15, 09/01/2020

Audience

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

Originating Component

OAO

Effective Date

Upon Receipt

Background

This transmittal amends section GN 03970.010 and creates new section GN 03970.013 to reflect regulatory updates to a representative’s affirmative duties and prohibited actions, pursuant to the final rule entitled “Rules of Conduct and Standards of Responsibility for Appointed Representatives,” effective on August 1, 2018. This update also incorporates the requirement for certain representatives to access claims evidence electronically (81 FR 22697, effective August 16, 2016, and HALLEX I-5-1-22) and for all representatives to help claimants inform us about or submit written evidence no later than five days before the date of the scheduled hearing ("Ensuring Program Uniformity at the Hearings and Appeals Levels of the Administrative Review Process," 81 FR 90987, compliance required May 1, 2017, and Social Security Ruling (SSR) 17-4p).

Summary of Changes

GN 03970.010 Rules of Conduct and Standards of Responsibility for Representatives

Subsection A: we made editorial changes in this subsection, and included language to clarify that the Rules of Conduct and Standards of Responsibility for Representatives are applicable at all stages of the administrative process.

Subsection B: we re-titled the subsection for clarity and expanded the subsection to include a list of affirmative duties for a representative in the order shown in the updated regulatory provisions 20 CFR 404.1740(b) and 416.1540(b).

Subsection B.1 we clarified a representative’s affirmative duty to help the claimant obtain evidence, incorporating the requirements to timely submit evidence under 81 FR 90987 and to develop written evidence under SSR 17-4p. We moved the information currently contained in B.2., NOTE, EXCEPTION, and last paragraph, into this subsection. We added two new NOTE(s) to provide information on evidence policy, our electronic portals, and our treatment of privileged communications between a claimant and his or her representative.

Subsection B.2. we reorganized the list of pertinent information we request from a claimant into language and format consistent with 20 CFR 404.1740(b)(2) and 416.1540(b)(2). We deleted the NOTE, EXCEPTION, and last paragraph from this subsection. We also created a new NOTE to organize the information on the types of noncompliance of the first two affirmative duties that may trigger a referral to the Office of the General Counsel (OGC).

Subsection B.3.Under Ss, we added new affirmative duties for a representative to provide availability for a hearing upon request, to withdraw representation in a non-disruptive manner, and to maintain prompt and timely communication with the claimant, to reflect regulatory changes to 20 CFR 404.1740(b)(3)(iii)-(v) and 416.1540(b)(3)(iii)-(v). We also made minor editorial changes throughout this subsection.

Subsection B.4.,S Under s we reorganized the information and made editorial changes to improve readability. We also clarified the requirement for certain representatives to access the claimant’s certified electronic folder electronically, pursuant to 81 FR 22697 and HALLEX I-5-1-22. We deleted the information currently in subsection B.4, bullet 2, as it references the outdated Form SSA-1695, and created two new NOTE(s) in this subsection. In NOTE 1, we clarified this affirmative duty does not affect the direct payment of fees, or the representative and claimant's rights to review or request CD copy of the claim file. In NOTE 2, we clarified only the principal representative is subject to this affirmative duty and articulated the limited circumstances in which a representative is not required to use the Appointed Representative Services (ARS) system.

Subsections B.5, B.6, B.7, B.8, B.9, and B.10 we added to explain and reflect the additional affirmative duties for a representative now included under 20 CFR 404.1740(b)(5)-(b)(10) and 416.1540(b)(5)-(b)(10).

Subsection C: We re-titled the section for clarity. We made editorial changes throughout the subsection.

Subsections C.1-C.3 we updated the language for the prohibited actions to reflect regulatory changes in 20 CFR 404.1740(c)(1)-(c)(3) and 416.1540(c)(1)-(c)(3).

Subsection C.7S Under s, we reorganized and updated the information on behaviors that improperly disrupt or obstruct the adjudicative process to reflect regulatory changes in 20 CFR 404.1740(c)(7) and 416.1540(c)(7).

Subsection C.14S We added s we added to explain and reflect the additional prohibited action now included under 20 CFR 404.1740(c)(14) and 416.1540(c)(14).

Subsections D, E, F, and G: We removed the information currently contained in these four subsections and moved them into a new section, POMS GN 03970.013, entitled "Definitions and Examples of Violations Subject to Suspension, Disqualification, or Criminal Prosecution."

Subsection D: We added a new subsection in POMS GN 03970.010, entitled "Initiating Sanctions Process," to provide information on when and how we may begin the representative sanctions process.

 

GN 03970.013 Definitions and Examples of Violations Subject to Suspension, Disqualification, or Criminal Prosecution

We created a new section based on information currently contained in subsections D-G of GN 03970.010, to consolidate information and illustrate the types of violations that may subject a representative to suspension, disqualification, or criminal prosecution under our regulations.

Subsection A: we moved the definitions previously provided in subsection D of GN 03970.010 into this subsection. We added a new NOTE under subsection A.1. to clarify our policy concerning the violation of internal rules of non-profit organizations and deleted the example previously provided in GN 03970.010.E.3. We removed the list of examples previously under GN 03970.010.D.2. and presented these general examples in more specific scenarios in subsection C. We deleted the information in GN 03970.010.D.3. and incorporated this information to the general definition of "fee violation" under subsection A.1.. We made editorial changes throughout the subsection.

Subsection B: we moved two examples of non-violations previously provided in subsections E.1 and E.4 of GN 03970.010 into this subsection, as new subsections B.1 and B.2, respectively. We expanded these examples to illustrate the types of conduct that may be in violation of our rules. We deleted the example previously provided in GN 03970.010.E.2, because GN03920.051.B.1 and C.6 fully address the issue in that example. We also deleted the example previously provided in GN 03970.010.E.3, and incorporated our policy behind that example into the NOTE under the new subsection A.1. We also moved five examples of fee violations previously provided in subsections F.2, F.3, F.5, F.6, and F.7. of GN 03970.010 into this subsection, as new subsections B.4 through B.8. We deleted the example previously provided in GN 03970.010.F.4, as the scenario it described has already been sufficiently covered by the example in the new Subsection B.7.. We re-titled the examples to better capture the fact patterns and made editorial changes throughout the subsection. In particular, we deleted all fictional names from our examples and presented the parties in their specific roles with respect to the claim before us (e.g., claimants and representatives).

Subsection C: we moved three examples of non-fee violations previously provided in subsections F.1, F.8, and F.9 of GN 03970.010 into this subsection, as new subsections C.1, C.2, and C.4, respectively. We added seven new examples to this subsection, on the failure to use Appointed Representative Services (ARS) system (as C.3), delay proceedings without good cause (C.5), withdraw in a manner that disrupts the processing of the case (C.6), failure to provide evidence as soon as practicable (C.7), misrepresentation of facts (C.8), failure to properly disclose opinion evidence (C.9), and failure to oversee individuals assisting on the claims when the representative has managerial or supervisory authority over these individuals (C.10). The additional examples reflect the additional affirmative duties and requirements for a representative under 20 CFR 404.1740(b), 416.1540(b), SSR 17-4p, 81 FR 90987, and EM-16027. We re-titled some examples to better capture the fact patterns and made editorial changes throughout the subsection. In particular, we deleted all fictional names from our examples and presented the parties in their specific roles with respect to the claim before us.

Subsection D: we moved the two examples previously in subsection G of GN 03970.010 into this new subsection and re-titled the subsection “Examples of violations subject to possible criminal prosecution.” We added a new example on when the prohibited conduct of knowingly charging or collecting unauthorized fees may subject a representative to possible criminal penalties (D.3). We re-titled the example in D.1. to better capture the fact patterns and made editorial changes throughout the subsection. In particular, we deleted all fictional names from our examples and presented the parties in their specific roles with respect to the claim before us.

GN 03970.010 Rules of Conduct and Standards of Responsibility for Representatives

CITATIONS:

Social Security Act: Sections 206, 1631(d), 208, 1106, and 1107

A. Introduction to the Rules of Conduct and Standards of Responsibility for Representatives

To ensure that claimants receive competent services from their representatives and to protect the integrity of our administrative process, we formulated the Rules of Conduct and Standards of Responsibility for Representatives (20 CFR 404.1740 and 416.1540 , last updated on July 2, 2018). These rules establish affirmative duties and describe prohibited actions for appointed representatives. If a representative violates these rules and standards, we may suspend or disqualify that representative from practicing before us.

The Rules of Conduct and Standards of Responsibility for Representatives are applicable at all stages of the administrative decision-making process.

B. Affirmative duties for a representative

A representative must:

  1. 1. 

    Submit all known evidence timely and in its entirety

    A representative must act with reasonable promptness to help obtain and submit, as soon as practicable, the information or evidence that the claimant must submit under our regulations. See DI 22501.002 for information on responsibilities for case development.

    • A claimant must inform us about or submit all known evidence that relates to whether or not the claimant is blind or disabled, as required in 20 CFR 404.1512 and 416.912.

    • At the administrative hearing level, a representative must help the claimant inform us about or submit any written evidence no later than five business days before the date of the scheduled hearing. If the claimant and representative do not satisfy this requirement, the administrative law judge may decline to consider or obtain the evidence unless the claimant or the representative meets one of the circumstances in 20 CFR 404.935(b) or 416.1435(b).

    • Although a claimant must inform us about or submit any written evidence no later than five business days before the date of the scheduled hearing to be considered timely, a representative should not wait until five days before the date of the scheduled hearing to submit evidence that was available to submit at an earlier date, see Social Security Ruling 17-4p.

    • When a representative, on behalf of the claimant, submits evidence received from another source, he or she must submit that evidence in its entirety, unless he or she previously submitted the same evidence to us or we instruct the representative otherwise. For definitions of duplicate evidence and nonessential evidence, refer to DI 20503.001 and DI 20503.003.

    NOTE 1: For more information on our policy and the claimant's responsibilities to obtain and submit evidence, refer to DI 22505.000 for Development of Medical Evidence of Record (MER) and DI 22501.002 for Responsibilities for Case Development of Disability Claims. Representatives may submit evidence through our Electronic Records Express (ERE) portal.

    NOTE 2: Privileged communications between a claimant and a representative are not evidence, and the claimant and representative do not need to submit privileged communications to us. We consider the following to be privileged communications and apply them equally to a representative, regardless of whether the representative is an attorney:

    • "Attorney-Client Privilege." The "attorney-client privilege" generally protects confidential oral or written communications between the claimant and his or her appointed representative related to providing or obtaining advice about the claimant's claim(s), unless the claimant or the appointed representative voluntarily discloses the communication to us and waives the privilege.

    • "Attorney Work Product." The "attorney work product" doctrine generally protects an appointed representative’s analyses, theories, mental impressions, and notes about the claim(s).

    However, neither the "attorney-client privilege" nor the "attorney work product" doctrine allows the claimant or the appointed representative to withhold factual information, medical opinions, or medical and nonmedical evidence that we may consider in determining whether a claimant is entitled to benefits (see 20 CFR 404.1513(b) and 416.913(b); see also DI 24503.001).

  2. 2. 

    Comply with our requests for information or evidence

    A representative must assist the claimant in complying, as soon as practicable, with our requests for information or evidence. In disability and blindness claims, a representative must help the claimant acquire and provide, or authorize us to obtain, evidence about the claimant's:

    • Medical source(s);

    • Age;

    • Education and training;

    • Work experience;

    • Daily activities both before and after the alleged onset date;

    • Efforts to work; and

    • Any other factors showing how the claimant's impairment(s) affects his or her ability to work.

    NOTE: A representative's action or inaction need not be intentional to violate the first two affirmative duties. However, when deciding whether to refer a representative's conduct to the Office of the General Counsel (OGC) under GN 03970.017, consider whether:

    • The representative’s non-submission of required evidence is an isolated incident;

    • The representative provides a reasonable explanation for not submitting the required evidence (e.g., a good-faith belief that it was unrelated to the pending claim); or

    • The circumstances suggest that the representative intentionally concealed, deleted, or altered evidence.

    We will refer all representatives who have repeatedly engaged in behavior that violates these affirmative duties, or all occurrences where the evidence suggests that a representative has intentionally violated these duties, to OGC.

  3. 3. 

    Conduct his or her dealings in a manner that furthers the efficient, fair, and orderly conduct of the administrative decision-making process

    This affirmative duty includes, but is not limited to, the following:

    a. Provide competent representation to a claimant

    This affirmative duty requires that a representative know the significant issue(s) in a claim, have reasonable and adequate familiarity with the evidence in the case, and have a working knowledge of the applicable provisions of the Social Security Act (Act), the regulations, the Social Security Rulings, and any other applicable provisions of the law.

    b. Act with reasonable diligence and promptness

    This affirmative duty requires that a representative provide prompt and responsive answers to our requests for information pertinent to the processing of a claim or an appeal.

    c. Provide availability for a hearing when we request it

    This affirmative duty requires that a representative respond to our request for available dates and times prior to scheduling a hearing by providing the number of potential dates and times we request in the manner we specify.

    d. Withdraw representation in a non-disruptive manner

    This affirmative duty requires that a representative ensure that his or her withdrawal will not disrupt the processing or adjudication of a claim and will allow the claimant adequate time to find new representation, if desired. We will make determinations on whether a representative has withdrawn in a disruptive manner on a case-by-case basis. Although we will not prevent a representative from withdrawing, if we determine the representative has withdrawn in a disruptive manner, we may refer the representative to OGC to consider pursuing sanctions.

    A representative should not withdraw after we set the time and place for the hearing except when extraordinary circumstances are present. Extraordinary circumstances include, but are not limited to, medical emergency of the representative or an immediate relative, a natural disaster, or the loss of a family member.

    If another representative replaces the representative who is seeking to withdraw and there is no detrimental impact on the hearing process (e.g., delay of the hearing), we will not consider the withdrawal to be disruptive.

    e. Maintain prompt and timely communication with the claimant

    This affirmative duty requires that a representative, among other things, keep the claimant reasonably informed of all matters concerning representation, consult with the claimant on an ongoing basis, and promptly respond to the claimant’s reasonable requests for information. When making determinations about this affirmative duty, we will consider the difficulty the representative may have in locating the claimant (e.g., because the claimant is homeless) and the representative’s efforts to fulfill this duty.

  4. 4. 

    Conduct business with us electronically at the times and in the manner we prescribe on matters for which the representative requests direct fee payment, as required by 20 CFR 404.1713 and 416.1513

    We require a representative to file certain appeals through our Disability Appeal (iAppeals) portal in matters for which the representative requests direct fee payment. See 77 FR 4653 and 77 FR 13968 (effective March 16, 2012). If a representative does not file the appeal electronically as he or she should have, we will still accept and process the paper appeal (e.g., SSA-561, HA-501, HA-520 or SSA-3441). However, we may refer the representative to OGC if he or she continually fails to comply with this affirmative duty and repeatedly submits paper appeals while requesting direct fee payment.

    We also require a representative to access and obtain a claim(s) file through the Appointed Representative Services (ARS) system in matters for which the representative requests direct fee payment. Except in the limited circumstances described below, we will not provide a compact disc (CD) copy of the electronic claim(s) file to an appointed representative who requests direct payment of fees. See 81 FR 22697 (effective August 16, 2016) and HALLEX I-5-1-22. This affirmative duty applies to claims with a certified electronic claim(s) file pending at the hearing and Appeals Council levels only.

    NOTE 1: The mandate to use ARS does not change a representative's right to review the information in the claim(s) file or his or her right to request a fee for his or her services. The mandate does not require a representative to use direct deposit, nor does it affect a claimant's right to request a CD copy of his or her claim(s) file.

    NOTE 2: When a claimant has appointed multiple representatives, only the principal representative is subject to the mandate. However, we will not provide a CD copy of the electronic claim(s) file to other appointed representatives who are associated with the principal representative requesting direct payment by using the same Employer Identification Number (EIN).

    A representative is not required to use ARS if:

    • His or her case is pending at the initial and reconsideration levels;

    • He or she is a non-principal representative who is not affiliated with the same EIN as the principal representative;

    • He or she is not seeking direct payment of fees;

    • He or she cannot register for ARS due to technological issues outside his or her control (e.g., there is no cell phone coverage available to receive text messages in the area where the representative's office is located); or

    • Our systems or other technology limitations preclude the representative's online access to the electronic claim file.

  5. 5. 

    Disclose required information about submitted medical or vocational opinions.

    This affirmative duty requires a representative to disclose the following information to us in writing at the time he or she submits a medical or vocational opinion to us or as soon as the representative is aware of the submission:

    • That the representative's employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or

    • That the representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing the opinion evidence.

  6. 6. 

    Disclose to us immediately if the representative discovers that his or her services are or were used by the claimant to commit fraud against us .

    This affirmative duty applies to all representatives at all times, even if the claimant has not yet appointed the representative, and even if the representative's services on a claim have ended. It addresses a representative's duty to notify us when the representative discovers that a claimant used or is using the representative's services to commit fraud against us (e.g., the representative learns that the claimant intentionally failed to disclose earnings, assets, or a full work history to us knowing that the failure to disclose could affect his or her eligibility for benefits).

  7. 7. 

    Disclose to us whether the representative is or has been disbarred or suspended from any bar or court to which he or she was previously admitted to practice.

    This affirmative duty includes instances in which a bar or court took administrative action to disbar or suspend the representative in lieu of disciplinary proceedings (e.g., acceptance of voluntary resignation pending disciplinary action). If the disbarment or suspension occurs after the appointment of the representative, the representative will immediately disclose the disbarment or suspension to us.

  8. 8. 

    Disclose to us whether the representative is or has been disqualified from participating in or appearing before any Federal program or agency.

    This affirmative duty includes instances in which a Federal program or agency took administrative action to disqualify the representative in lieu of disciplinary proceedings (e.g., acceptance of voluntary resignation pending disciplinary action). If the disqualification occurs after the appointment of the representative, the representative must immediately disclose the disqualification to us.

  9. 9. 

    Disclose to us whether the representative has been removed from practice or suspended by a professional licensing authority for reasons that reflect on the person's character, integrity, judgment, reliability, or fitness to serve as a fiduciary.

    This affirmative duty requires a representative to notify us promptly when a professional licensing authority removes him or her from practice or suspends him or her for reasons indicated above. By that, we mean that the representative must inform us in writing about his or her removal from practice or suspension (e.g., the representative submits an updated registration Form SSA-1699 or provides us with a copy of the suspension or disbarment notice). If the removal or suspension occurs after the appointment of the representative, the representative must immediately disclose his or her removal or suspension to us and we may disqualify this representative from appearing before us.

  10. 10. 

    Ensure that all of the representative's employees, assistants, partners, contractors, or any person assisting the representative on claims for which the representative has been appointed, comply with our rules of conduct and standards of responsibility for representatives, when the representative has managerial or supervisory authority over these individuals or otherwise has responsibility to oversee their work .

    This affirmative duty requires a representative to take remedial action when:

    • The conduct of any of the representative's employees, assistants, partners, contractors, or other individuals who is assisting the representative with a claim has violated the rules of conduct and standards of responsibility; and

    • The representative has reason to believe a violation of the rules of conduct and standards of responsibility occurred or will occur.

C. Policy on prohibited actions for representatives

A representative must not:

  1. 1. 

    In any manner or by any means threaten, coerce, intimidate, deceive, or knowingly mislead a claimant, or prospective claimant or beneficiary, regarding benefits or other rights under the Act. This prohibition includes misleading a claimant, or prospective claimant or beneficiary, about the representative’s services and qualifications.

  2. 2. 

    Knowingly charge, collect, or retain, or arrange to charge, collect, or retain, from any source, directly or indirectly, any fee for representational services in violation of any applicable law or regulation. This includes accepting or soliciting any gift or other item of any value, other than what the law authorizes.

  3. 3. 

    Make, present, or participate in the making or the presentation of, false or misleading oral or written statements, evidence, assertions, or representations about a material fact or law concerning a matter within our jurisdiction, in matters where the representative knows or should have known that those statements, evidence, assertions, or representations are false or misleading.

  4. 4. 

    Through his or her own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see 20 CFR 404.911(b) and 416.1411(b)), the processing of a claim at any stage of the administrative decision-making process. Unreasonable delay is delay that is not justifiable, or delay that is preventable with reasonable care.

  5. 5. 

    Divulge, without the claimant's consent, except as authorized by regulations prescribed by us or as otherwise provided by Federal law, any information we furnish or disclose about a claim or prospective claim.

  6. 6. 

    Attempt to influence, directly or indirectly, the outcome of a decision, determination, or other administrative action by any means prohibited by law, or by offering or granting a loan, gift, entertainment, or anything of value to a presiding official, agency or DDS employee, or witness who is or may reasonably be expected to be involved in the administrative decision-making process, except as reimbursement for legitimately incurred expenses or lawful compensation for the services of an expert witness retained on a non-contingency basis to provide evidence.

  7. 7. 

    Engage in actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings, including but not limited to:

    • Repeated absences from, or persistent tardiness at, scheduled proceedings without good cause (see 20 CFR 404.911(b) and 416.1411(b)); or

    • Behavior that has the effect of improperly disrupting proceedings or obstructing the adjudicative process, including but not limited to:

      • Directing threatening or intimidating language, gestures, or actions at a presiding official, witness, contractor, or agency employee;

      • Providing misleading information or misrepresenting facts that affect how we process a claim, including, but not limited to, information relating to the claimant's work activity or the claimant's residence or mailing address in matters where the representative knows or should have known that the information was misleading and the facts would constitute a misrepresentation; and

      • Communicating with agency staff or adjudicators outside the normal course of business or other prescribed procedures in an attempt to influence the proceedings or outcome of a claim.

  8. 8. 

    Violate any section of the Act for which a criminal or civil monetary penalty is prescribed.

  9. 9. 

    Refuse to comply with any of our rules or regulations.

  10. 10. 

    Suggest, assist, or direct another person to violate our rules or regulations.

  11. 11. 

    Advise any claimant or beneficiary not to comply with any of our rules or regulations.

  12. 12. 

    Knowingly assist a person whom we suspended or disqualified to provide representational services in a proceeding under the Act, or to exercise the authority of a representative as described in 20 CFR 404.1710 and 416.1510.

  13. 13. 

    Fail to comply with our sanction(s) decision.

  14. 14. 

    Fail to oversee the representative’s employees, assistants, partners, contractors, or any other person assisting the representative on claims for which the representative has been appointed, when the representative has managerial or supervisory authority over these individuals, or otherwise has responsibility to oversee their work.

NOTE: In addition to suspension or disqualification by us, a representative who engages in conduct that violates any provision of the Act may also be subject to incarceration, fines, and civil monetary penalties.

D. Initiating Sanctions Process

When we have evidence that a representative has violated the rules governing dealings with us, we may begin proceedings to suspend or disqualify that individual from acting in a representational capacity before us. If you suspect that a representative has violated any of the rules described above, refer the individual to OGC under the procedures for referrals of suspected fee violations, possible fee violations, and non-fee violations, as described in GN 03970.017.

GN 03970.013 Definitions and Examples of Violations Subject to Suspension, Disqualification, or Criminal Prosecution

Citations:

Social Security Act: Sections 206, 1631(d), 208, 1106, and 1107;

Federal Regulations: 20 CFR 404.1512, 20 CFR 404.1713, 20 CFR 404.1740, 20 CFR 416.912, 20 CFR 416.1513, and 20 CFR 416.1540

A. Definitions of violations

1. Fee violations

A fee violation occurs when a representative knowingly charges, collects,retains, or arranges to charge, collect, or retain, from any source any fee for representational services in violation of applicable law or regulation. Refer to GN 03970.010C.2. The representative's actions may be direct or indirect, and the unauthorized fee collection may be total or partial.

NOTE: Some non-profit organizations have internal rules prohibiting individuals working on their behalf from requesting or receiving fees for their services. Because we recognize individuals and not organizations as representatives, we do not involve ourselves in the business process of these organizations. It is not a violation of our fee rules for an appointed representative, who a non-profit organization employs, to seek our authorization for, or direct payment of, an authorized fee under either the fee agreement or fee petition process.

For procedures for development and referrals of suspected fee violations, see GN 03970.017.

a. Total unauthorized fee collection

A total unauthorized fee collection occurs when a representative collects a fee directly from the claimant, any affected auxiliary beneficiary, or another individual (whether related or unrelated to the claimant or affected auxiliary beneficiaries) without our prior authorization.

NOTE: Payments to a representative by third-party entities are an exception to our general authorization requirement. For more information on fees that are not subject to our authorization, see 20 CFR 404.1720(e), 20 CFR 416.1520(e), and GN 03920.010.

b. Partial unauthorized fee collection

A partial unauthorized fee collection occurs when we authorize a fee based on a fee agreement or fee petition, but a representative collects an amount in excess of the fee we authorized. The amount over the authorized fee is a partial unauthorized fee collection.

NOTE: If we pay a representative in error and he or she does not return the excess fee on receipt or after notification of the error, the direct payment error may result in an unauthorized fee collection. This unauthorized fee collection could be “partial” or “total.”

2. Non-fee violations

A non-fee violation occurs when a representative fails to comply with an affirmative duty, or commits a prohibited action that is not a fee violation, as defined in GN 03970.010B and GN 03970.010C.

For procedures for development and referrals of suspected non-fee violations, see GN 03970.017.

B. Fee violations: Examples of possible violation scenarios related to our rules on charging, collecting, or retaining representative fees

1. Collecting an excess fee

A representative petitions for a fee of $1,950. Through error, we directly paid the full $1,950 amount to the representative, even though we only authorized $1,500 for the representative's fee. Once we realized the error, we immediately sent a notice to the representative requesting refund of the excess amount. If the representative does not return the excess amount after we notify him or her of it, the representative is knowingly retaining an amount in excess of the authorized fee in violation of our rules.

2. Collection a fee on behalf of an appointed representative through a Power of Attorney (POA)

A representative submits a POA to receive a fee on behalf of his former partner. The representative also submits a fee petition for his former partner's work along with the POA. While we do not accept or process a POA or fee petition from anyone other than the appointed representative (i.e., the former partner), the representative has not violated our rules by requesting authorization from us collect a fee on behalf of his former partner through a POA.

However, if the representative attempts to collect or actually collects his former partner's fee without our authorization, he may be in violation of our rules. For more information on petitioning for a fee, see GN 03930.020.

3. Collection a fee without our authorization

A representative enters into an agreement with a claimant allowing the representative to charge a fee equal to 25 percent of the claimant's retroactive (past-due) benefits (PDBs) if we allow the claim, or nothing if we deny the claim. The representative tells the claimant that she wants to avoid the "long delays" involved with our direct payment of her fee. The representative tells the claimant that if we award benefits to her, she should bring the first check from us to the representative's office to pay the representative's fee. We approve the claim on reconsideration, which results in the reopening of a prior denied claim and an award of retroactive benefits. The representative does not submit a fee agreement or fee petition to us and assures the claimant that we "routinely authorizes representative fees of 25 percent of retroactive benefits." The claimant pays the representative a fee consisting of 25 percent of the PDBs. The representative has engaged in prohibited conduct because she knowingly charged, collected, and retained a fee without our authorization.

NOTE: We permit representatives to collect money from claimants prior to receiving authorization from us as long as the claimant willingly enters into the agreement and willingly deposits the money in the trust or escrow account, and the representative holds the money in a trust or escrow account and does not withdraw the money until after receiving our authorization. For more information on trust and escrow accounts, refer to GN 03920.025.

4. Failure to refund an unauthorized fee involving a duplicate fee payment by us

A representative receives a properly authorized direct payment of $1,800 from withheld past-due benefits for his services representing a disability claimant before us. Inadvertently, we certify duplicate payment of the fee to the U.S. Treasury. The representative receives a second check for $1,800 and deposits it into his account. After the field office (FO) or payment center (PC) sends a notice to the representative notifying him of the duplicate fee payment and requests a refund, the representative does not act on the notice and does not refund the duplicate payment. The representative has engaged in prohibited conduct because he has knowingly retained a fee in excess of the amount we authorized.

5. Charging and collecting an unauthorized fee based on a contract with a minimum fee

A representative enters into a signed fee contract with a claimant, stating that the "minimum" fee for his services is $1,000. The fee contract does not state that we must authorize this fee. After we approve the claim, the representative sends us a fee petition requesting $1,000 for his services. However, we only authorize a fee for $700, and the representative then seeks the additional $300 from the claimant, based on the fee contract. The representative has engaged in prohibited conduct because he charged a fee in excess of the amount we authorized, misled the claimant concerning the minimum fee, and failed to inform the claimant that we have to authorize any fee.

6. Indirect collection of a fee through third party payments and without our authorization

The claimant has a private insurance policy that pays her benefits when she is unable to work. The insurance company informs the claimant that the terms of the policy requires her to file for Title II Disability Insurance Benefits (DIB). The insurance company assures the claimant that it will provide her with a representative to assist her with her claim at no charge.

Later, we award the claimant DIB benefits. The representative, who contracted with the insurance company to represent the claimant, informs us that he is waiving his fee directly or indirectly from the claimant and any affected auxiliary beneficiaries. Following the terms of the policy, the claimant notifies the insurance company about the award. The insurance company then pays the representative a fee for his representation of the claimant before us and deducts the same amount from the claimant's insurance policy benefits. The representative engaged in prohibited conduct, because he knowingly violated our rules, which state that when a third party pays a representative's fee, the claimant and any affected auxiliary beneficiaries must be free of liability directly or indirectly, as described in GN 03970.010C and GN 03920.020; See also 20 CFR 404.1720(e) and 416.1520(e).

7. Arrangements to charge, collect, or retain a fee directly from a claimant's bank account

A non-attorney representative who is not eligible for direct payment by us, asks a claimant to agree to one of the following:

  • Allow the representative to sign checks against an account into which SSA directly deposits DIB or SSI payments;

  • Request his or her DIB or SSI payments be directly deposited into an account that requires the representative to co-sign checks with the claimant before the claimant can withdraw funds from that account; or

  • Enter into an agreement that allows the representative to make electronic withdrawals from an account into which SSA directly deposits the claimant's DIB or SSI payments without the need to obtain the claimant's express permission for each withdrawal.

All three options violate our rules. The representative is collecting or arranging to collect the fee from directly deposited benefits or payments without obtaining the claimant's express permission after the funds are in his or her account. Under our rules, the representative cannot have a financial interest in the bank account where we deposit the claimant's DIB or SSI payments. A representative must obtain authorization from a claimant to access a bank account after we pay DIB or SSI payments into the account and before each withdrawal.

If the representative collected a fee from the claimant without our prior authorization, then he has charged and collected an unauthorized fee and also violated our regulations under 20 CFR 404.1720, 404.1740(c)(2), 416.1520, and 416.1540(c)(2).

A representative who inappropriately gains control of the claimant's Social Security benefits may also be in violation of sections 207 and 1631(d)(1) of the Act that prohibit the transfer or assignment of the right of any person to any future payments (benefits) under our titles. For more information about assignment of benefits and permission requirements, refer to GN 02410.001D.2.

C. Non-fee violations: Examples of possible violation scenarios related to other rules of conduct and standards of responsibility

Although the following examples do not cover every situation, they illustrate how a representative may fail to meet his or her affirmative duties or may engage in prohibited conduct.

1. Failure to provide competent representation

At the hearing, the representative is uninformed about a relevant issue, the applicable laws and regulations, and/or the facts of the case. The representative is also unprepared to ask questions or argue the issue, and he cites irrelevant regulations and rules. The representative has violated his affirmative duty to provide the claimant with competent representation.

2. Failure to file requests for appeals electronically

Representatives who are eligible for and request direct payment are required to file certain appeals electronically, using our iAppeals portal.

A representative routinely submits paper appeal requests on medically denied initial claims and reconsideration claims, but requests direct payment of fees on all cases. The representative advised us that he does not like using the Disability Appeal (iAppeals) portal because it is unreliable and he prefers filling out information on paper. The representative has violated the affirmative duty to conduct business with us electronically by deliberately failing to file these appeals electronically.

A representative always asks her clients to submit a paper request for reconsideration or a hearing before she submits her Form SSA-1696, indicating she intends to seek direct fee payment. By routinely requesting the claimants to file these appeals in paper and then requesting direct payments, the representative is circumventing the affirmative duty to file certain appeals electronically and is violating our direct payment rules.

3. Failure to use the Appointed Representative Services (ARS) System

Representatives who are eligible for and request direct payment of fees are required to use the ARS system to access and obtain all information and evidence in claims with certified electronic folders pending at the hearing or the Appeals Council levels.

  • A representative has 150 disability claims pending at the DDS level and requests CD copies of all the claims files. Even if this representative requests direct payment on all of her cases, she is not in violation of our rules because she is not required to use the ARS system at the DDS level. However, after receiving several initial and reconsideration denial determinations, the representative requests hearings for her clients and again requests CD copies of all the files. Unless a limited exception applies (see GN 03970.010B.4, NOTE 2), the representative has now violated our mandate to use the ARS system to access the claim files.

  • Five claimants have Social Security claims pending at the Appeals Council level and have appointed the same representative. Each claimant separately writes us to request CD copies of their claim files. The claimants are not under the mandate to use ARS and we will provide them with the requested copies of their files. However, if claimants affiliated with a particular representative frequently request CD copies of their files, the representative may be in violation of our mandate to use the ARS system to access the claim files when the circumstances suggest that the representative is directing this activity to circumvent his or her obligation to use the ARS system.

4. Failure to inform us about or submit required evidence

A representative advises her client about his duty as a claimant to inform us about, or submit, all known evidence that relates to whether or not he is blind or disabled. The claimant gives his representative a stack of medical records that includes copies of several test results. The following day, the representative uploads the documents to the claimant's electronic file, but removes a recent test containing normal findings, as she believes this evidence would unfavorably affect her client's disability claim. The representative has violated our rules because she failed to submit all known evidence that pertains to whether the claimant is blind or disabled.

A representative advises his client to "not worry" about filling out the Form SSA-3368-BK (Disability Report - Adult) he received from us, stating that we oftentimes do not even look at that form. The representative violated our rules because he suggested non-compliance with our request for information or evidence.

5. Delay proceedings without good cause

A representative is chronically late in submitting required reports because her office is short staffed. She also routinely submits late filings and requests for good cause. The representative's late submissions has delayed the case processing for a number of her clients. The representative violated our rules by unreasonably delaying or causing to be delayed the processing of these claims because her lack of staffing is not good cause for missed deadlines under 20 CFR 404.911(b) and 416.1411(b).

6. Withdraw in a manner that disrupts the processing of the case

On the day before a scheduled hearing, a representative sends a letter to us and the claimant, stating that he is withdrawing as the claimant's representative in the case. In the letter, the representative provides no reason for his withdrawal. The next day, the claimant arrives for the hearing, but informs the administrative law judge (ALJ) that he does not feel comfortable continuing without a representative. The ALJ postpones the hearing to allow time for the claimant to obtain a new representative. The representative has violated our rules because he withdrew his representation after the hearing was scheduled and failed to identify extraordinary circumstances for the withdrawal, which disrupted our processing of the claimant's case.

7. Failure to provide evidence as soon as practicable

Soon after appointing her representative, a claimant provides the representative with relevant medical and work history evidence that she needs to submit to us. The representative makes no effort to provide the evidence to us and instead sits on the evidence for six months, finally providing it to us only two business days before the date of the claimant's hearing. The representative has violated our rules because he failed to provide us the required evidence "as soon as practicable." Moreover, as the representative did not inform us about or submit this evidence at least five business days before the date of the scheduled hearing, the ALJ may decline to consider this evidence, see Social Security Ruling 17-4p.

8. Misrepresentation of facts

A disability applicant receives unreported cash payments for housecleaning work she routinely does for several families in her neighborhood. Her representative advises her not to report this work in her Social Security application because her work and earnings will negatively affect her claim for disability. The representative has violated our rules because he participated in the making or presentation of false evidence about the claimant's work and earnings.

The claimant owns a brand new automobile she won at a contest and stores the automobile at her aunt's house in a different state. The claimant knows that the asset will count as a resource and decides not to mention it on her SSI application. Her representative agrees with the claimant that this is a good idea, and the claimant continues to conceal this asset. The representative has violated our rules because he participated in the making or presentation of false or misleading statements about the claimant's resources.

9. Failure to properly disclose opinion evidence

A representative referred a claimant to a doctor for a medical examination. A few days later, the doctor sends the report of the examination to the representative. The representative submits the medical report to us the following day, but does not disclose in writing that she referred the claimant to the doctor. The representative has violated our rules by failing to inform us of the referral.

10. Failure to oversee individuals assisting on claims when the representative has managerial or supervisory authority over these individuals

A claimant's representative who is the managing partner at a law firm asks an associate attorney to represent the claimant at the administrative hearing. At the administrative hearing, the associate attorney submits an SSA-1696 and fails to disclose that her State Bar suspended her license based on attorney misconduct. The managing partner, who is the associate attorney's supervisor, is aware of the suspension and the false statement on the SSA-1696, but does not disclose either to us, as he believes the suspension did not affect the associate attorney's ability to provide competent representation at the hearing. The associate attorney violated our rules of conduct and standards of responsibility because she made a false statement to us and did not immediately disclose the suspension to us. The managing partner also violated our rules because he did not ensure the individual assisting him complied with our rules of conduct and standards of responsibility, and he did not take remedial action when he learned of the violations.

D. Examples of violations subject to criminal prosecution

Although the following examples are not all inclusive, they provide a sample of situations that may indicate that a representative has engaged in prohibited conduct. Some actions that violate the rules of conduct and standards of responsibility for representatives may also violate laws that have criminal penalties.

1. Knowingly make or participate in making a false statement or representation

A mother files for benefits on behalf of her two-year old son, alleging that a deceased Number Holder (NH) is the child's father. She is unable to establish the child's relationship to the NH or provide proof that the NH supported the child before his death, so we deny her claim at the initial level. The mother appoints a representative to appeal the unfavorable determination. The representative submits four affidavits of persons alleging to have first-hand knowledge of the NH’s paternity. We award the child survivor’s benefits, but later learn that the affiants only had casual acquaintance with the NH, had no knowledge of the paternity issue, and that the representative persuaded them to sign the affidavits in return for $50 each. The representative engaged in prohibited conduct by knowingly making false statements and presenting false evidence, subjecting him to suspension or disqualification from practicing before us and possible criminal penalties, including a fine and incarceration. See section 208 of Act.

A claimant calls the FO to state that a representative filed a claim on her behalf without her authorization. The representative had submitted an online first-party application on the claimant's behalf following a phone call in which the claimant only inquired about the possibility of filing for SSI. The representative impersonated the claimant and engaged in prohibited conduct that could subject him to suspension or disqualification and possible criminal penalties, including a fine and incarceration. See section 1106 of Act.

2. Unauthorized disclosure of beneficiary information

A representative shares an office with an independent insurance agent. The insurance agent proposes to pay the representative a “finder's fee” for the name, address, and monthly benefit amount of each of his clients to whom we award benefits. The agent sees these beneficiaries as prospective customers for the medical insurance plans he is selling that will supplement the coverage provided by State and Federal programs. The representative agrees to the proposal and, without obtaining consent from any beneficiary, he provides a list containing personal information of his clients. The representative engaged in prohibited conduct because he divulged information that he obtained from us, which contains personal information of our beneficiaries, without any beneficiary’s written consent. See GN 03970.010C. This conduct could subject the representative to suspension or disqualification from practicing before us, and possibly criminal penalties such as fine and incarceration, see section 1106 of Act.

3. Knowingly charging or collecting unauthorized fees

After we approve $3,000 in attorney fees for a successful Title II claim, a representative contacts her clients to collect the fee from the beneficiary directly. The representative demands $4,000 from the beneficiary, stating that the fee approved by us does not truly represent the time and effort she had put into this case. The representative engaged in prohibited conduct by charging (and potentially collecting and retaining) more fee than we authorized, subjecting her to possible suspension or disqualification from practicing before us and possible criminal penalties based on this conduct, see section 206 of Act.


GN 03970 TN 15 - Suspension or Disqualification of Representatives - 9/01/2020