RULES OF CONDCUT UT AND STANDARDS OF RESPONSIBILITY FOR APOINTED - - PDF document

RULES OF CONDCUT UT AND STANDARDS OF RESPONSIBILITY FOR APOINTED REPRESENTATIVES

DISABILITY LAW CENTER NOVEMBER 2018

What Rules May Apply ly

■ Social Security Act and Regulations – Representation of Parties (affirmative duties and prohibited actions) ■ Civil Monetary Penalties (CMPs) against individuals or entities for violations of the Social Security Act ■ Penalties for Fraud – Section 1632 Social Security Act ■ Sanctions under the Federal Rules of Evidence (e.g. Rule 11) ■ MA Rules of Professional Conduct (S.J.C. Rule 3:07) ■ Licensing Requirements for Non Attorney Representatives

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SSA Rules on Represe sentation

• n of Partie

ies 20 CFR Subpart R

■ Who may be a representative and what their qualifications must be – amended in 2018; ■ How you appoint a representative; ■ The payment of fees to a representative; ■ SSA rules that representatives must follow – amended in 2018; ■ Penalties for representatives and enforcement –amended in 2018.

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Represe sentation

• n Rules – Scope

■ Cover Represen esentation

• nal Services

es performed in connection with any claim before SSA (initial or reconsideration) and any decision or action by an ALJ or the AC. 20 CFR § 404.1703 ■ Represen esentative - an attorney who meets the requirements of § 404.1705(a), or a person other than an attorney who meets the requirements of § 404.1705(b), and appointed by a claimant. ■ Eligible non-a

• attorn
• rney means a non-attorney representative who SSA

determines is qualified to receive direct payment of their fee under § 404.1717(a).

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SSA Changed ged Rules of Repres esen entation

• n-

Effec ective August 1, 1, 2018 (83 FR 30849 49)

■ Initially proposed in 2016 - NPRM 81 FR 54520 (August 16, 2016) ■ Purpose: to clarify that certain actions are prohibited, provide “additional means to address representative actions that do not serve the best interests of claimants.” Address concerns about the “integrity of the programs.”

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Who May Be a Represe sentative - Attorney 20 CFR 404.1705(a)

■ An attorney in good standing who has the right to practice law before a court of a State, Territory, District, or island possession of the U.S., or before the Supreme Court or a lower Federal court; ■ Is not disqualified or suspended from acting as a representative in dealings with SSA; ■ Is not prohibited by any law from acting as a representative.

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WHO MAY BE A REPRESENTATIVE – Any person

• n 20 CFR 404.1705(b)

■ Capable of giving valuable help in connection with the claim; ■ Not disqualified or suspended from acting as a representative before SSA ■ Not prohibited by any law from acting as a representative ■ Is “generally known to have good character and reputation.”

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New Disqualifyi lifying Condit itio ion For Non Atty Represe sentatives

■ Persons who have a final conviction of a felony or any crime involving moral turpitude, dishonesty, false statements, misrepresentation, deceit, or theft. Does not apply to convictions that have been

• verturned or “other similar situations.”

■ Regulations do not bar individuals with misdemeanor convictions, UNLESS the misdemeanor involved moral turpitude, dishonesty, false statements, misrepresentation, deceit of theft. ■ Those who may not serve as representatives may “still assist their family members with claims in an unofficial capacity.” 83 FR 30850

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Appoint intme ment of Represe sentativ ive (no change ges) s) 20 CFR 404.1707

■ Claimant must sign a written notice identifying representative. ■ Identified representative signs the notice, agreeing to be the representative, if the person is not an attorney. An attorney does not have to sign a notice of appointment. ■ The notice is filed at the FO if initially claim or reconsideration request was filed; with an administrative law judge if a hearing was requested;

• r with the Appeals Council if a review of the administrative law

judge's decision was requested.

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Author

• rit

ity of a represe sentativ ive (no change ges) s) 20 CFR 404.1710

■ Obtain information about a claim to the same extent that the claimant is able to do; ■ Submit evidence; ■ Make statements about facts and law; and ■ Make any request or give any notice about the proceedings before SSA. ■ A representative may NOT sign an application on behalf of a claimant for rights or benefits under title II of the Act unless authorized to do so under § 404.612.

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Mandator

• ry Use of Electronic

ic Services 20 CFR 404.1713 and 404.1740(b)(4)

■ A representative must conduct business with SSA electronically at the times and in the manner SSA prescribes on matters for which the representative requests direct fee payment. (Requirement is added to the list of affirmative duties under § 404.1740(b)(4)).

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Not

• tice or Request

st to a Represe sentativ ive (no change ges) s) 20 CFR 404.1715

SSA shall send an appointed representative— ■ (1) Notice and a copy of any administrative action, determination, or decision; and ■ (2) Requests for information or evidence.

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Affirmativ ive Duties

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Duty to Obtain in and Provide Infor

• rma

mation

• n

■ Act with reasonable promptness to help obtain the information or evidence that the claimant must submit under the SSA regulations, and forward the information or evidence to SSA for consideration as soon as practicable (same language as before) ■ Assist the claimant in complying, as soon as practicable, with the SSA requests for information or evidence at any stage of the administrative decision making process in the claim (same language as before)

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Duty to Provide Evidence to Support an Appli licatio ion/App Appeal

■ Medical source(s); ■ Age, education/training, and work experience ■ Activities both before and after the date of the alleged disability; ■ The claimant's efforts to work and any other factors showing how the claimant’s impairments affects their ability to work (404.1560-404.1569a vocational factors) – added in 2018 final rule

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Duty of Competent Represe sentation ion

■ Provide competent representation to a claimant. Know of the significant issues in a claim, have reasonable and adequate knowledge of the applicable provisions of the Soc Sec Act, regulations, the SSRs, and any other applicable provisions of law. ■ Act with reasonable diligence and promptness in representing a claimant (prompt and responsive answers to the SSA requests for information).

16

Duty to Coordin inate Schedulin ling

■ When requested and in a manner SSA specifies, provide potential dates and times that the representative will be available for a hearing. ■ SSA comment: “We understand that schedules change, and we do not expect representatives to hold open their schedules for all of the dates and times they identify.” 83 FR 30850

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Limited ed Option

• ns for Ending Repres

resen entation

• n

20 CFR 404. 4.1740 40(b (b)(3 )(3)(i )(iv) v)

■ Only withdraw representation at a time and in a manner that does not disrupt the processing or adjudication of a claim and that provides the claimant adequate time to find new representation, if desired. ■ A repres resentat ative should ld NOT withdr draw after er SSA sets the time and place for the hearing UNLE LESS SS the repres resen entat ative can show

• w that a

withdra hdrawal al is necessar ary due to ex extra raor

• rdinary circumstances

es, as SSA determ ermines es, on a case-b e-by-c

• cas

ase basis. ■ A hearing is scheduled when SSA sets a date and time and notifies all

• parties. 83 FR 30850

18

What are “extraor

• rdinary circu

cums mstances ces” to justify fy withd hdrawal after a scheduled hearing?

■ Serious illness; ■ Death or serious illness in the representative’s immediate family; ■ Failure to locate a claimant despite active and diligent attempts to contact the claimant.

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Duty to Provide Reaso sons Before Ending Represe sentation

• n

■ SSA is “not seeking privileged communications between an attorney and client. If the representative cannot describe why they must withdraw without revealing privileged or confidential communications (and if no exceptions to the attorney-client privilege exists, such as crime-fraud exception), the representative should state this fact, not disclose the privileged or confidential communication, and allow the ALJ to evaluate the request under these circumstances.” 83 FR 30850

20

Duty to Maintain Commu mmunication

• n with

Claima mants 20 CFR 404.1740 40 (b) (3)(V )(V)

■ Prompt and timely communication with the claimant (reasonably informing the claimant of all matters concerning the representation, consulting with the claimant on an ongoing basis during the entire representation period, and promptly responding to a claimant’s reasonable requests for information). ■ SSA will consider “the difficulty the representative has in locating a particular claimant (e.g. because the claimant is homeless) and the representative’s efforts to keep the claimant informed.” ■ SSA expects representative to “have working contact information for all of their clients, but it recognizes that it may be difficult to locate a homeless or indigent clients in some circumstances.” 83 FR 30850

21

Duty of Disclos

• sure

re - Opinion

• ns from Medical

Sources es 20 CFR 404.1740 40 (5)

■ Disclose in writing, at the time a medical or vocational opinion is submitted to SSA or as soon as the representative is aware of the submission to SSA if: ■ The Rep’s employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational

• pinion

■ “For clarity, we consider providing guidance or providing a questionnaire, template or format to fall within the parameters of this rule when the guidance, questionnaire, template or format is used to draft a medical or vocational opinion submitted to us.” 83 FR 30851 ■ The term “prepared” has an ordinary meaning.

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Duty of Disclos

• sure

re - Referr errals to Medical Profes ession

• nals 20 CFR 404.1740

40 (5)

■ Disclose in writing, at the time a medical or vocational opinion is submitted to SSA or as soon as the representative is aware of the submission to SSA if: ■ The representative referred to suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence. ■ Only the fact that a representative has made a referral or participated in drafting, preparing, or issuing an opinion is

• required. 83 FR 30851

23

Duty to Disclo lose se Fraud – 20 CFR 404.1740(b)(6)

■ Immediate disclosure if the representative discovers that their services are or were used by the claimant to commit fraud against SSA. ■ Exception to the attorney-client privilege and Model Rule 1.6. ■ Comment: “When a claimant uses a representative’s services in furtherance of the claimant’s fraud, there is a reasonable certainty that the fraud will cause substantial injury to the Social Security trust

• funds. Such fraud also undermines public confidence in our

programs.” 83 FR 30851

24

Duty to Disclo lose se Suspensi sion

• n – 20 CFR

404.1740(b)(7); 1740(b)(8)

■ Disclose disbarment, suspension (any bar or court), administrative actions in lieu of disciplinary proceedings (e.g. voluntary resignation). ■ Disclose disqualification from participating in or appearing before any Federal program or agency, including admin actions (e.g. voluntary resignation pending disciplinary action). ■ Disclose removal from practice or suspension of a professional licenses for reasons that reflect on the person’s character, integrity, judgment, reliability, or fitness to serve as a fiduciary.

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Duty to Ensure Comp mpliance ce with Rep Rules by Staff, f, Assistants, Contract ctor

• rs 20 CFR

404.1740 40(b (b) (10)

■ Duty applies when representative has managerial or supervisory authority over individuals or otherwise has responsibility to oversee their work. ■ Duty extends to ensure compliance from employees, assistants, partners, contractors, or any person assisting the representative on claims for which the representative has been appointed. ■ Representative must take remedial actions when the violation occurred or will occur.

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PROHIBITED ACTIONS

27

No Coer

• ercive or Mislea

eadi ding Con

• ndu

duct 20 CFR 404. 4.1740 40 (c)

■ A representative must not “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, a prospective claimant or beneficiary, about the representative’s services and qualifications. Example: “not correcting a known misconception about the representative’s status as a non-attorney is misleading a claimant.” 83 FR 30852

28

No Unauthori

• rized

ed Fees es 20 CFR 404.1740 40 (c )(2)

■ A representative must NOT knowingly charge, collect or retain, or make any arrangement to charge, collect or retain, from any source, directly or indirectly, any fee for representational services in violation of applicable law or regulation. ■ This prohibition includes soliciting any gift, or any other item

• f value, other that what is authorized by law.

29

No Misleadin ing Submissions sions or Presentation

• ns 20 CFR 404.1740 (c)(3)

■ A representative must NOT make or present, or participate in the making or presentation of, false or misleading oral or written statements, evidence, assertions, or representations abou

• ut a materi

rial al fa fact or law concern erning a matter er withi hin the SSA juri risdi diction, in matters where the representative knows or should have known that those statements, evidence, assertions, or representations are false or misleading. ■ Whether or not a claimant is mentally ill, a representative will violate the standard of conduct if they present information that they know to be false or circumstances demonstrate that the representative should have known it to be false. False document is NOT evidence. 83 FR 30852

30

Duty Not

• t to Delay Administ

istrative Process ss 20 CFR 404.1740(c)(4)

■ Representative should not through their own actions

• r omissions, unreasonably delay or cause to be

delayed, without good cause (see § 404.911(b)), the processing of a claim at any stage of the administrative decision making process.

31

Confid identia ialit lity 20 CFR 1740(c)(5)

■ A representative must NOT divulge, without the claimant's consent, except as may be authorized by regulations prescribed by SSA or as otherwise provided by Federal law, any information SSA provides or discloses about a claim or prospective claim.

32

Influence on the Proceedings ings 20 CFR 1740(c)(6)

■ A representative must NOT attempt to influence, directly or indirectly, the outcome of a decision by any means prohibited by law, or by

• ffering or granting a loan, gift, entertainment, or anything of value to

a presiding official, agency employee, or witness who is or may reasonably be expected to be involved in the admin decision-making process, except as reimbursement for legitimately incurred expenses

• r lawful compensation for the services of an expert witness retained
• n a non-contingency basis to provide evidence. “Matters such as

case status inquiries, requests for critical case flags, and Congressional inquiries are not outside the normal course of business, nor would they be attempts to inappropriately influence the processing or outcome of a claim.” 83 FR 30852

33

No Delays ys Witho hout Good Cause

■ Sanctions may be imposed for repeated absences from or persistent tardiness at scheduled proceedings without good cause (20 CFR 404.911(b))

34

No Threatening ing or Intim imid idatin ing Language ge/Actio ions

■ Sanctions may be imposed for directing threatening or intimidating language, gestures, or actions at a presiding official, witness, contractor, or agency employee.

35

No Misleadin ing Informatio ion (may be in conjunctio ion with CMP)

■ Sanctions may be imposed for providing misleading information or misrepresenting facts that affect claim’s processing, including, but not limited to, information relating to the claimant's work activity or the claimant's place of 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.

36

No Communicatio ion with SSA Outsid ide Normal Course se of Busin iness ss

■ Sanctions may be imposed for communicating with agency staff or adjudicators outside the normal course of business or other prescribed procedures in an attempt to inappropriately influence the processing or outcome of a claim(s).

37

Duty to Comply with SSA Regulat lation ions and Civil Monetary Penalty Rules

Sanctions may be imposed if a representative ■ Violates any section of the Act for which a criminal or civil monetary penalty is prescribed. ■ Refuses to comply with any of the SSA rules or regulations. ■ Suggests, assists, or directs another person to violate the SSA rules or regulations. ■ Advises any claimant or beneficiary not to comply with any of the SSA rules or regulations.

38

Duty to Comply with SSA Decision ions on Disqualif lific icatio ion or Suspensio sion

Sanctions may be imposed if a representative ■ knowingly assists a person whom SSA suspended or disqualified to provide representational services in a proceeding under title II of the Act, or to exercise the authority of a representative described in 20 CFR § 404.1710; ■ Fails to comply with SSA sanction(s) decision.

39

Duty to Ensure Compli liance - Supervise isees, s, Partners, s, Contractors

■ Sanctions may be imposed if a representative fails 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.

40

Civil and Monetary Penalties es - Section

• ns

11291 or 1140 402 of the Social Securi rity Act

■ CMPs are imposed against individuals, organizations, or

• ther entities which knowingly

ly misle lead ad SSA and/or /or made fa false statem emen ents ts to obtai tain or ret etai ain SSA benefi efits ts. ■ Section 1140 violation – use of words, letters, symbols, or emblems in a manner that falsely conveys SSA’s approval, authorization, or endorsement. ■ OIG enforces CMP rules.

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Departme mental Appeals Board (HHS) S)

■ General Info, filing appeal online - https://www.hhs.gov/about/agencies/dab/index.html ■ Board’s Decisions by Year - https://www.hhs.gov/about/agencies/dab/decisions/board- decisions/board-decisions-by-year/index.html ■ ALJs’ Decisions by Year - https://www.hhs.gov/about/agencies/dab/decisions/alj-decisions/alj- decisions-by-year/index.html

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Where to Find Additio ional Informa mation ion

■ SSA Online Info for Representatives https://www.ssa.gov/representation/ ■ SSA Best Practices for Representatives - https://www.ssa.gov/appeals/best_practices.html ■ Enrolli

• lling for eFolder

lder Access: Inform

• rmat

ation

• n for Represen

entat atives es ■ HALLE LEX Chapter er I-1-1

• 1. Repres

esen entat ation

• n of Claiman

ants ■ POMS Section

• n GN 03910.0

.000 Repres esen entat ation

• n of Claiman

ants

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