I. Purpose
This temporary instruction (TI) provides guidance to Office
of Hearings Operations (OHO) staff and Office of Analytics, Review,
and Oversight staff in the Office of Appellate Operations (OAO)
on implementing the new requirement that certain representatives
submit all evidence electronically using Electronic Records Express
(ERE), Appointed Representative Services (ARS), or iAppeals, as
announced in Federal Register Notice (FRN) 85
FR 62779. This FRN is effective on November 4, 2020.
II. Background
On April 18, 2016, we published a notice announcing the requirement
that for claims with certified electronic folders pending at the
hearing or Appeals Council levels, a representative must access
and obtain a claimant's folder through ARS in all matters for which
the representative requests direct fee payment (81
FR 22697). We implemented this requirement to improve administrative
efficiency by eliminating the need for staff to burn compact disc copies
for representatives, ensure that representatives provide the best
possible service to claimants by using the most up to date information
in the claims folder, and better manage our pending workloads.
While the majority of representatives already submit evidence
electronically, we continue to receive paper evidence. Submitting
evidence electronically promotes administrative efficiency, reduces
the amount of paper evidence that requires physical handling and
processing by our employees and contractors, and minimizes errors
that may occur through manual processing.
Increasing the use of the electronic submission of evidence
minimizes manual workloads in the administrative review process
and allows us to direct staff resources toward resolution of cases
pending, rather than toward processing paper evidence. Additionally,
the ability to process evidence and develop cases electronically
allows us to balance our workloads across the country by assigning
the work to a broader network of available staff and adjudicators.
III. Policy
20 CFR 404.1713 and 416.1513 require
representatives to conduct business with us electronically at the
times and in the manner we prescribe on matters for which the representative requests
direct fee payment. Therefore, as of November 4, 2020, the requirement
to submit all evidence electronically through ERE, ARS, or iAppeals
applies to all claims for Social Security disability insurance benefits
under title II of the Social Security Act (Act) and for supplemental
security income payments based on disability under title XVI of
the Act in the following situations:
•
the representative
requests direct fee payment on that claim,
•
the claim or case has an electronic folder, and
•
the claim is pending at OHO or the Appeals Council.
The requirement does not apply directly to claimants or representatives
who are not eligible for or do not request direct fee payment. While
these parties may continue to submit evidence through non-electronic
means such as mailing, faxing, or sending to a contract scanner,
all parties are strongly encouraged to use electronic means to submit
evidence.
The requirement that representatives requesting direct fee
payment submit evidence electronically, as described above, constitutes
an affirmative duty under 20 CFR 404.1740(b)(4) and 416.1540(b)(4),
and we may investigate and sanction a representative who does not comply
with the electronic submission requirement. We acknowledge that
there may be situations in which case characteristics, our systems,
or other limitations preclude representatives requesting direct
fee payment from submitting evidence electronically. We will consider these
situations on a case-by-case basis in light of the representative's
individual circumstances. We will not reject an appeal, delay a
claimant's hearing, or process a claim differently if the representative
does not comply with the requirement to submit evidence electronically.
IV. Procedures
The following actions are necessary only in cases where the
official claims folder is electronic, we receive evidence through
non-electronic methods (i.e., evidence is not uploaded through ERE,
ARS, or iAppeals), and the claimant has an appointed representative(s).
A. Evaluate Whether
Representative is Eligible for Direct Payment
First, OHO or OAO staff will assess whether the representative
is eligible for and is requesting direct payment of a fee in the
specific case for which we received the evidence. OHO or OAO staff
will query the Registration Appointment and Services for Representatives (RASR)
application to assess whether an attorney or Eligible for Direct
Payment Non-Attorney (EDPNA) is eligible for and has requested direct
payment of a fee. Only representatives who have registered with
the Social Security Administration can receive direct payment of
a fee (see Hearings, Appeals and Litigation Law (HALLEX) manual HA 01120.009).
Representatives who have not registered for direct payment will
not appear in RASR.
OHO or OAO staff will also check RASR to see if an eligible
representative specifically waives a fee or direct payment of a
fee in the case (see Program Operations Manual System GN 03920.020 and
HALLEX HA 01120.010 B). However, when RASR does not indicate if an eligible representative
is requesting direct payment in a particular matter, OHO or OAO
staff may contact the representative to determine whether the representative
is requesting direct payment of a fee. OHO or OAO staff should remind
the representative that if he or she is eligible for direct payment
of a fee and is not requesting it in a particular matter, he or
she must affirmatively waive the fee or direct payment of the fee
in a manner consistent with the requirements described in HALLEX HA 01120.010 B.
OHO or OAO staff will document the conversation in a “Report
of Contact” in RASR.
B. Representative Requests
Direct Fee Payment
If the representative is requesting direct fee payment, OHO
or OAO staff will contact the representative and remind him or her
of the obligation to submit all evidence electronically under 20
CFR 404.1713, 416.1513,
and 85
FR 62779. OHO or OAO staff will explain to the representative:
•
If the representative continues to submit evidence
through non-electronic means on matters for which this requirement
applies, we may consider a referral to the Office of the General
Counsel for consideration of possible sanctions in accordance with
HALLEX HA 01110.050.
OHO or OAO staff will document the contact on a “Report
of Contact” in RASR.
C. Representative Does
Not Request Direct Fee Payment
If the representative states that he or she is not requesting
direct payment of a fee, OHO or OAO staff will document the information
on a “Report of Contact” in RASR, noting that the representative
is not requesting direct payment of a fee, and no further action
is required. However, as noted above, an eligible representative
who is not requesting direct payment of a fee is required to affirmatively
waive direct payment (see HALLEX HA 01120.010 B).
D. Possible Non-Compliance
with Submission of Evidence Requirement
If the representative alleges to OHO or OAO staff that he
or she was unable to submit evidence electronically due to technological
or other limitations, OHO or OAO staff will ask the representative
to provide a written explanation within 10 business days describing
why he or she was unable to submit the evidence electronically.
OHO or OAO staff, in consultation with OHO or OAO management, will
evaluate the explanation provided in light of all the circumstances
in the case to determine whether the matter warrants a referral
to OGC in accordance with HALLEX HA 01110.050.
If OHO or OAO staff observes that the representative is continually
circumventing the requirements of the FRN (e.g., the representative
repeatedly directs claimants to submit evidence by non-electronic
means when this requirement is applicable to the representative), OHO
or OAO staff will take all steps required by HALLEX HA 01110.050.
V. Inquiries
OHO staff will direct all program-related and technical questions
to appropriate regional office support staff. Regional offices may
refer questions or unresolved issues to the appropriate headquarters
contact.
OAO staff will direct any program-related or technical questions
to the Executive Director's Office.