[Federal Register Volume 62, Number 2 (Friday, January 3, 1997)]
[Proposed Rules]
[Pages 352-361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-38]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulations Nos. 4 and 16]
RIN 0960-AD73
Federal Old-Age, Survivors, and Disability Insurance and
Supplemental Security Income for the Aged, Blind, and Disabled;
Standards of Conduct for Claimant Representatives
AGENCY: Social Security Administration.
ACTION: Proposed rules.
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SUMMARY: These proposed rules would revise our regulations governing
representation of claimants seeking Social Security or supplemental
security income (SSI) benefits under title II or XVI of the Social
Security Act (the Act). They would establish standards of conduct and
responsibility for persons serving as representatives and further
define our expectations regarding their obligations to those they
represent and to us. They would include statutorily and
administratively imposed requirements and prohibitions.
DATES: To be sure that your comments are considered, we must receive
them no later than March 4, 1997.
ADDRESSES: Comments should be submitted in writing to the Commissioner
of Social Security, P.O. Box 1585, Baltimore, MD 21235, sent by telefax
to (410) 966-2830, sent by E-mail to regulations@ssa.gov'', or
delivered to the Division of Regulations and Rulings, Social Security
Administration, 3-B-1 Operations Building, 6401 Security Boulevard,
Baltimore, MD 21235, between 8:00 a.m. and 4:30 p.m. on regular
business days. Comments received may be inspected during these hours by
making arrangements with the contact person shown below.
FOR FURTHER INFORMATION CONTACT: Richard M. Bresnick, Legal Assistant,
Division of Regulations and Rulings, Social Security Administration,
6401 Security Boulevard, Baltimore, MD 21235, (410) 965-1758.
SUPPLEMENTARY INFORMATION
Purpose and Scope
Existing regulations governing representatives' conduct
(Secs. 404.1740, et seq. and 416.1540, et seq.) under titles II and XVI
primarily reiterate various statutory provisions set forth in the Act.
Sections 404.1745 and 416.1545 also provide that a representative may
be suspended or disqualified if he or she has violated those rules,
been convicted of a violation of section 206 of the Act or ``otherwise
refused to comply with our rules and regulations on representing
claimants in dealings with us.'' This is consistent with section
206(a)(1) of the Act, which provides that the Commissioner of Social
Security (the Commissioner) may ``suspend or prohibit from further
practice before him any such person, agent, or attorney who refuses to
comply with the Commissioner's rules and regulations * * *.'' Since
their inception, the regulations have reflected the Commissioner's
(formerly the Secretary of Health and Human Services' (the
Secretary's)) broad authority over matters involving representatives'
activities in their dealings with us.
These proposed rules specifically provide enforceable standards
governing aspects of practice, performance and conduct for all persons
who act as claimants' representatives. The proposed rules also
recognize potential changes in the procedures used by the
[[Page 353]]
Social Security Administration (SSA) to process claims, the increased
participation of compensated representatives in the adjudicative
process, the special circumstances presented by SSA's nonadversarial
hearings, and statutory amendments, such as the anti-fraud provisions
of the Social Security Independence and Program Improvements Act of
1994, Public Law (Pub. L.) 103-296. The existing regulations pertaining
to representatives' conduct have been largely unchanged since their
promulgation in 1980, and do not adequately address actual and
potential problems resulting from the participation of representatives
in the claims process.
Although we realize that most representatives do a conscientious
job in assisting their clients, our experience has convinced us that
there are sufficient instances of questionable conduct to warrant
promulgation of additional regulatory authority. The existing
regulations do not address a representative's willful or negligent
delay, refusal to cooperate, failure to adequately prepare and present
the claimant's case and other deficiencies. The proposed rules correct
these omissions and are necessary to protect the claimant and the
process from those individuals who are incapable of providing, or
unwilling to provide, meaningful assistance in expeditiously resolving
pending claims.
Although there are disparities in the levels of skill, experience,
education and professional status among those who serve as
representatives, we believe all such individuals must be bound by the
same set of rules. In determining appropriate standards, we considered
the requirements and intent of the Act and its implementing
regulations, administrative law principles applicable to adjudication
and the American Bar Association's (ABA) Model Rules of Professional
Conduct and Model Code of Professional Responsibility.
There are comparable rules in part 410, subpart F (Secs. 410.684,
et seq.) governing representative conduct under the Black Lung benefits
program. We are not revising those rules, however. Executive Order
12866, Regulatory Planning and Review, issued by the President on
October 4, 1993 (58 FR 51735), provides that ``Federal agencies should
promulgate only such regulations as are required by law, are necessary
to interpret the law, or are made necessary by compelling public need *
* *.'' Because we have found no problems with representative conduct in
claims involving Black Lung benefits comparable to those that have led
to these proposed rules for titles II and XVI, there is no compelling
need to revise the Black Lung rules.
We expect that the proposed rules will further clarify our
expectations regarding the obligations of representatives to provide
competent representation of their clients, in accordance with
procedural and evidentiary requirements of the claims process.
Moreover, the proposed regulations, when published, will constitute
official notice concerning our requirements and prohibitions.
To address the concerns of claimants and others with a stake or
interest in the issue of claimant representation in drafting the
proposed rules, we obtained information from various sources. We
conducted focus groups with claimants and beneficiaries as part of our
disability process redesign initiative. We also used information
gathered in investigating nearly 600 complaints of representative
misconduct made by claimants from 1988 to date.
Communication With Claimants
Participants in the public dialogue conducted in conjunction with
our disability process redesign initiative frequently complained about
the lack of timely or effective assistance on the part of claimants'
representatives. They felt that some representatives delayed submitting
evidence until the case reached the hearing level in order to increase
the amount of past-due benefits and thereby increase the amount of
their fees. Others did not believe that all representatives provided
adequate assistance in the preparation or presentation of the case. In
the latter category, there were recurring complaints that the claimant
did not see or have any contact with the representative until shortly
before the hearing when the representative, allegedly for the first
time, would review the file. These claimants did not believe that the
representative was adequately prepared to present their case, or had
provided any assistance in ensuring that the record was complete. Some
individuals complained that their representatives' failure to obtain
medical documentation for inclusion in the record, despite being
informed that the evidence was available and material, forced them
personally to obtain the required documentation. The dissatisfaction
with the quality and effectiveness of representatives' services was
strong enough to prompt the Disability Process Redesign Team to include
within its recommendations provisions aimed at correcting shortcomings
in the representatives' performance.
The comments received from focus groups and at public meetings are
consistent with written complaints we receive about representatives who
do not participate or cooperate in the processing of claims. We have
seen instances where a representative demands that all communications
with the claimant be made through his or her office and refuses, at
lower levels of adjudication, to produce available medical evidence or
make his or her client available for a consultative examination. Some
representatives, as a matter of practice, do not submit available
evidence until the day of the hearing even though in some cases the
matter might have been favorably decided some time before on the basis
of new medical reports. In addition to delaying payment unnecessarily
in some cases, this practice can further delay disposition of a claim
when the administrative law judge or expert witnesses do not have an
opportunity to review and consider the new evidence prior to the
hearing.
Consultation With the Representative Community
In February 1995 we requested comments on a draft proposal from 33
separate groups and organizations comprising the attorney and non-
attorney representative community. These groups included professional
organizations, interest groups, think tanks, the Legal Services
Corporation, and various private representative organizations.
We received 92 individual responses. Many were supportive,
especially regarding the need to provide standards for non-attorney
representatives. Many, however, were opposed to more regulation of
their professional conduct. We carefully considered all of the
individual views and concerns in formulating these proposed rules. A
summary of the major views and concerns and our responses follows.
1. A common complaint was that the proposed standards used terms
that were too vague and ambiguous, such as ``timely,'' ``diligence,''
``as soon as possible'' and ``matters at issue.'' To be responsive to
these concerns and further clarify our requirements, we have modified
the language that was most often identified as ambiguous.
For example, the earlier language in what are now proposed
Secs. 404.1740(b)(1) and (2) and 416.1540(b)(1) and (2) called for
representatives to diligently develop the record and submit evidence as
soon as possible. In these proposed rules, we ask representatives to
submit evidence ``as soon as practicable, but no later than
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the due date designated by the Agency, except for good cause shown.''
We believe this standard is more specific, and gives representatives
some discretion in the submission of information and evidence. Also, in
place of the phrase ``matters at issue'' in what are now proposed
Secs. 404.1740(b)(2)(ii) and 416.1540(b)(2)(ii), we say ``pertaining to
specifically identified issues.'' In proposed Secs. 404.1740(b)(3)(i)
and 416.1540(b)(3)(i), we narrowed the ``matters at issue'' to those
matters ``establishing entitlement or eligibility to the claimed right
or benefit.''
Some individuals found the entire substance of the proposed
standards to be ambiguous, although one believed they were drawn too
narrowly and should be expanded. Several argued that the proposals did
not provide adequate notice to representatives of the exact types of
conduct we would find to violate these regulations.
It is our position that the proposed rules define with specificity
the types of conduct subject to regulation. Similar to other codes of
conduct (e.g., the ABA Model Rules), the proposed regulations do not
list every act or omission which might constitute a violation. Such a
listing would be virtually impossible given the limitless factual
situations involved in claims processing. Rather, we intend to deal
with each complaint on a case-by-case basis to determine whether under
the attending circumstances, a representative engaged in actionable
misconduct. In making this determination we will apply an objective
test, that is, whether a reasonable person, in light of all the
circumstances, would consider the act or omission violative of the rule
in question.
This has been our practice in the past. In all but the most
egregious instances of potential misconduct, we give representatives
notice of the alleged wrongdoing and an opportunity to respond before
formal charges are ever proposed. Once it is determined that a formal
complaint is warranted, the Deputy Commissioner for Programs, Policy,
Evaluation and Communications (or other official the Commissioner may
designate) reviews the proposal independently from the investigative
component and makes a decision whether to file a complaint.
We believe that the internal checks and balances within our
operating procedures provide adequate safeguards against abuse of
discretion or arbitrary action. Even after a complaint is served, a
representative is entitled to file an answer and petition for
withdrawal of the complaint. Thereafter, the accused party has a right
to a full evidentiary hearing, and a right to request review of the
resulting decision. In view of these elaborate safeguards, administered
at each step by independent decision makers, it is unlikely that an
honest mistake or a reasonable misunderstanding on the part of a
representative would result in sanctions.
2. A majority of responding attorneys complained that, since their
conduct already is governed by their individual State bar codes of
conduct and ethical rules, a separate SSA code of conduct is redundant.
Several individuals expressed the opinion that SSA simply can refer an
attorney to his or her State bar disciplinary authority when we suspect
misconduct. Another recognized that State bar rules are not applicable
to representatives who are not attorneys, but opined that there are not
enough non-attorney representatives to warrant standards of conduct for
non-attorneys.
Bar rules differ in language and format among the 50 States, the
District of Columbia and the U.S. territories. As the administrator of
a national program, however, SSA should not be expected or required to
apply local rules, or local interpretations of the rules, to problems
which extend beyond the boundaries of local jurisdictions. Furthermore,
if we applied local rules or local interpretations rather than a
national standard, it is conceivable that attorneys in one area could
be subject to discipline for conduct that another jurisdiction would
not find actionable. We do not believe it benefits the attorneys, the
claimants or SSA to have this type of inconsistency in effecting the
Commissioner's statutory obligation to regulate the conduct of
representatives.
Moreover, attorneys often represent claimants in jurisdictions
other than those in which they are licensed to practice law. In those
instances, it would be unclear which jurisdiction's rules would apply,
which could lead to inconsistent application of the rules among
attorneys practicing in the same geographical area.
Also, under existing laws, referral of suspected attorney
misconduct to a State bar disciplinary authority could possibly
constitute a violation of the provisions of section 1106 of the Act
and, under certain circumstances, the Privacy Act (5 U.S.C. 552a) on
maintaining the confidentiality of personal information that we
maintain in our files.
A major concern is the fact that currently there is no external
authority enforcing standards or rules of conduct for representatives
who are not attorneys. Contrary to one individual's opinion, individual
non-attorney representatives and representative organizations represent
a substantial number of claimants. Within the last 7 years, suspension/
disqualification actions against non-attorneys comprised approximately
36 percent of SSA's representative disciplinary actions. Therefore, it
is essential to provide rules that will govern the conduct of non-
attorneys who practice before us. Moreover, it is only fair and
equitable to hold all representatives who practice before us to the
same standards.
3. A majority of responding individuals objected to the earlier
wording of what now are proposed Secs. 404.1740(b)(1) and
416.1540(b)(1), which required representatives to ``[e]xercise
diligence in developing the record on behalf of his or her client by
obtaining and submitting, as soon as possible, all information and
evidence intended for inclusion in the record.''
They argued that SSA was attempting to improperly delegate to
claimants and representatives its own duty to develop the record, which
could place representatives at the mercy of arbitrary or unreasonable
SSA requests for information. They also pointed out that the original
language did not allow for discretion in situations involving
uncooperative treating physicians and uncooperative or uneducated
claimants.
The claimant has a right to receive benefits under the Act only
after establishing that he or she satisfies the underlying statutory
and regulatory requirements.
Historically, SSA has assisted claimants in gathering evidence and
perfecting the claim. Current workloads and revised processing
procedures will require, however, that the claimant take a more active
role in establishing entitlement or eligibility. The representative, as
the designated agent of the claimant, will be called upon to respond to
our requests just as an unrepresented claimant will be required to
cooperate.
Our intention is for the representative to ensure that the
claimant's evidence is available for inclusion in the record when the
claim is ready for adjudication, unless there is a valid reason for the
delay. This is consistent with the ABA Model Rules, which state at Rule
3.2--Expediting Litigation, that ``[a] lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of the
client.'' The comment accompanying the rule states that ``[d]elay
should not be indulged merely for the convenience of the advocates,''
and ``[r]ealizing financial or other
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benefit from otherwise improper delay in litigation is not a legitimate
interest of the client.''
It is in the best interests of the claimant to have full
adjudication of the claim as early in the adjudicative process as
possible. Although there will be instances when evidence is not readily
available despite reasonable effort, we believe that in most cases the
information can be secured timely.
In our experience, some representatives do not submit evidence
promptly and fail to cooperate with our attempts to obtain necessary
information and evidence. Under our current rules at Secs. 404.1715(a)
and 416.1515(a), we are required to send the representative requests
for information and evidence. Since we may not contact a represented
claimant directly, the claimant often does not even know the claim is
being delayed by the representative. Although this practice is not
pervasive, when it does occur we are required to engage in unwarranted
and time-consuming efforts to develop the evidence. More importantly,
however, the claimant is harmed by delay in the disposition of the
claim.
We do not believe that our proposed rules unduly burden claimants
or representatives. The duties in question only require a good faith
effort to assist the claimant in timely submission of material
information and evidence that the claimant wants included in the
record.
Many individuals complained that compliance with what are now
proposed Secs. 404.1740(b)(2) and 416.1540(b)(2), which originally
asked representatives to ``[p]romptly comply, at every stage of the
administrative review process, with our requests for information and
evidence,'' might place them in violation of their own State bar rules
requiring zealous advocacy and protection of confidential client
information.
We recognize that State bar rules vary in their interpretation of
an attorney's duty to maintain the confidences and secrets of the
client. We believe that our proposed rules, as we have modified them in
response to individual representatives' concerns, will permit an
attorney to satisfy our requirements without risking unauthorized
disclosures of information.
Under the ABA Model Rules, an attorney may reveal information that
is ``impliedly authorized in order to carry out the representation.''
Moreover, Rule 1.6a provides that the attorney is not barred from
making disclosures if ``the client consents after consultation.'' We
believe that an attorney can act in accordance with State bar rules by
informing the client that SSA requires certain information and evidence
from claimants, and that as the claimant's representative, the attorney
must either comply with these requests or tell SSA that the claimant
declines to furnish the data. Taking these rules into consideration, we
have modified proposed Secs. 404.1740(b)(2) and 416.1540(b)(2) to
permit representatives to protect a client's confidentiality by
notifying SSA that ``the claimant does not consent to release of some
or all of the [requested] material.''
We do not believe, however, that deliberate and purposeful
withholding from us of information or evidence is justifiable under the
various State bar rules. In fact, such actions may be illegal and
subject to severe penalty. Section 206 of Public Law 103-296 adds a new
section 1129 to the Social Security Act, providing that: ``Any person *
* * who makes, or causes to be made, a statement or representation of a
material fact for use in determining [the right to benefits under title
II or title XVI] that the person knows or should know is false or
misleading or knows or should know omits a material fact * * * shall be
subject to, in addition to any other penalties that may be prescribed
by law, a civil money penalty of not more than $5,000 * * * .'' A
material fact is defined as ``one which the Commissioner of Social
Security may consider in evaluating whether an applicant is entitled to
benefits * * * .'' (See sections 1129(a) (1) and (2) of the Act.)
Further, section 205(u)(1)(A) of the Act, as added by section
206(d) of Public Law 103-296, provides that the Commissioner ``shall
immediately redetermine the entitlement of individuals to monthly
insurance benefits under * * * [title II] if there is reason to believe
that fraud or similar fault was involved in the application of the
individual for such benefits * * * .'' Section 1631(e)(6)(A)(i) of the
Act, which also was added by section 206(d) of Public Law 103-296, is a
comparable provision covering eligibility for title XVI benefits.
Similar fault is defined in sections 205(u)(2) and 1631(e)(6)(B) of the
Act as knowingly making ``an incorrect or incomplete statement that is
material to the determination'' or knowingly concealing ``information
that is material to the determination.'' Moreover, section 205(a) of
the Act provides that the Commissioner shall adopt ``reasonable and
proper rules and regulations to regulate and provide for the nature and
extent of the proofs and evidence and the method of taking and
furnishing the same in order to establish the right to benefits
hereunder.'' This section is made applicable to the title XVI program
by section 1631(d)(1) of the Act.
In our view, the provisions of proposed Secs. 404.1740(b)(2) and
416.1540(b)(2) require the representative to comply with our requests
made under statutory authority for full and accurate disclosure of
material facts to the same extent that the claimant is required to do
so. In assessing any allegation raised against a representative
regarding failure to comply with our request for information, we will
consider the reasonableness of the request, the relevance of the
information requested, and any factors that may interfere with the
procurement of requested information.
4. A few individuals questioned the need for any rules or standards
of conduct, expressing their opinion that representatives rarely engage
in misconduct sufficient to warrant formalized investigative and
disciplinary procedures. Several speculated that only representatives
who were not attorneys engaged in misconduct warranting SSA attention.
From August 1988 through August 1995, the Office of Hearings and
Appeals received approximately 566 referrals of representative
misconduct. Some of these referrals complained of questionable conduct
which warranted corrective action, but which was not covered by any
existing regulatory authority. Of the remaining referrals, we were able
to close many without formal disciplinary action. In approximately 160
claims, we closed the disciplinary referral upon the representative's
refund to a claimant or to SSA of monies collected without
authorization or as a result of Agency overpayments to representatives.
As of August 15, 1995, we have collected from these representatives a
total of $279,411.98, returning $176,096 of this amount to the
claimants who had been overcharged, and the remainder to SSA.
We also have filed approximately 136 formal complaints against
representatives. We were able to resolve many complaints before a
formal hearing. The remainder, however, have resulted in the suspension
or disqualification of 57 representatives. Approximately 64 percent of
the suspended or disqualified representatives were attorneys.
We believe these general statistics provide ample evidence of the
need to continue our investigative and disciplinary role. We expect the
proposed rules and standards to provide the representative community
with improved notice of the conduct we view as inappropriate, and
supply SSA with
[[Page 356]]
the tools to address representatives' conduct that falls below our
published standards.
5. Several individuals were confused about the addition of the word
``retain'' in what are now proposed Secs. 404.1740(c)(2) and
416.1540(c)(2), which state that a representative shall not
``[k]nowingly charge, collect or retain * * * any fee for
representational services in violation of applicable law or
regulation.'' They questioned whether this was a change in SSA's policy
permitting representatives to collect money toward payment of their
fees before any fee is authorized, as long as the collection is placed
in a trust or escrow account.
This is not a policy change. Social Security Ruling (SSR) 82-39
still permits representatives to solicit from claimants a deposit of
money into a trust or escrow account as a means of assuring payment of
the fees for services in connection with such representation, as long
as the claimant willingly enters into the trust or escrow agreement and
willingly deposits the money in the trust or escrow account; none of
the money in the account is paid over to the representative unless and
until SSA authorizes a fee, and then only in an amount up to, but not
exceeding, the authorized fee; and any funds in the account in excess
of the authorized fee are refunded promptly to the claimant.
We have added the word ``retain'' to cover those situations in
which the representative has charged or collected a fee and has
improperly retained the fee despite a claimant's or SSA's request for
refund. If a representative places the money charged and collected from
a claimant into a trust or escrow account, and complies with the
conditions set forth in SSR 82-39, we will not consider that money to
be an improperly retained fee.
6. A few individuals were concerned with what are now proposed
Secs. 404.1740(c)(3) and 416.1540(c)(3), which prohibit representatives
from knowingly making or participating in the making or presentation of
false oral or written statements, assertions or representations about a
material fact concerning a matter within our jurisdiction. They
suggested that it required them to be a guarantor of a claimant's
testimony, or to impeach their own client if they suspected that the
client was presenting false evidence or testimony.
This prohibition applies only to knowing presentations of false
statements. There already exist both criminal and civil penalties for
knowingly making or participating in the making of false
representations to a claimant or to SSA. (See 18 U.S.C. 1001 and
sections 208 and 1129 of the Act.) By incorporating this prohibition in
our rules of conduct, we place representatives on notice that, in
addition to the criminal and civil sanctions possible for this
misconduct, the making or presentation of such false statements also
may lead to their suspension or disqualification from representing
claimants in matters before us.
We do not place an affirmative duty on representatives to impeach
their clients or guarantee a client's honesty. Nonetheless, we do
expect representatives who practice before us not to knowingly prompt,
encourage or engage in false or misleading representations about
material facts in connection with the representation of a claimant.
7. Several individuals expressed concern about what are now
proposed Secs. 404.1740(c)(4) and 416.1540(c)(4), which prohibit
willfully or negligently delaying, or causing to be delayed, the
processing of a claim. They suggested that it was overly broad, and
could be interpreted to prohibit even such reasonable delays as
scheduling conflicts, illness, family emergency and claimants'
continuing treatment.
Black's Law Dictionary defines an act or omission as willfully done
``if done voluntarily and intentionally and with the specific intent to
do something the law forbids, or with the specific intent to fail to do
something the law requires to be done.'' It includes actions engaged in
with a bad motive or purpose, with indifference to the natural
consequences, or without justifiable excuse. A negligent action
involves the failure to exhibit the conduct or care a reasonable person
would exhibit under similar circumstances. It is characterized chiefly
by inadvertence, thoughtlessness and inattention.
Under our proposed standard prohibiting willful or negligent delay,
SSA does not intend to penalize reasonable or justifiable delays, or
delays that may occur even when reasonable care is taken in claim
preparation. In determining whether a representative has violated this
rule we will look to the gravity of the act or omission, the
consequences for the claimant, whether the behavior reflects a pattern
or practice, and other factual circumstances particular to the matter.
8. The draft proposal had language prohibiting representatives from
engaging in disruptive, defiant or confrontational behavior or repeated
challenges to the presiding official's authority, which clearly exceed
the bounds of zealous advocacy. Many individuals found this provision
to be vague and an interference with their duty to provide zealous
advocacy.
In response to these concerns, we modified the language in proposed
Secs. 404.1740(c)(7)(ii) and 416.1540(c)(7)(ii) to prohibit ``[w]illful
behavior which has the effect of improperly disrupting proceedings or
obstructing the adjudicative process.'' We envision actionable conduct
under this provision to include grossly undignified or discourteous
behavior and inflammatory language directed at the presiding official
which prejudice the orderly presentation and reception of evidence.
This rule is not intended to inhibit zealous advocacy or vigorous
dissent, but to prevent conduct or language which significantly exceeds
the bounds of civility, and disrupts a proceeding. In determining
whether a representative has violated this provision, we will look at
the totality of the circumstances, including the egregiousness of the
conduct, its impact on the claimant or the Agency, possible provocation
and whether the behavior reflects a pattern or practice.
9. The draft proposal included a prohibition against soliciting or
accepting from SSA direct payment of fees from past-due benefits, in
violation of law or regulation, for services performed by a person
other than an attorney. Many individuals misunderstood the intent of
this provision, believing that it meant either that non-attorney
representatives could not be paid for their representational services,
or that attorneys could not receive direct payment from SSA for persons
other than attorneys who provided representational services under their
direct supervision.
Because of the confusion involving this provision, and the fact
that SSA currently is considering separate regulations to address
direct payment of fees in more detail, this provision is not included
in these proposed rules.
10. The draft proposal contained a prohibition against making off-
the-record communications relevant to the merits of an adjudication to
anyone involved in the administrative review process. Many individuals
found this provision to be vague and undefined. They were concerned
that it prohibited communications to SSA in claims that had extenuating
circumstances, such as claimants who were terminally ill or suicidal.
In their opinion, it would unduly formalize nonadversarial proceedings,
would foster inefficiency by requiring increased documentation of SSA
contacts, and would be in conflict
[[Page 357]]
with SSA's goal of expediting claims processing.
We agreed that the provision was confusing and possibly
counterproductive, so it is not included in these proposed rules.
11. The draft proposal also contained a prohibition against
engaging in dilatory tactics or neglectful actions which are
prejudicial to the fair or orderly conduct of oral proceedings. Some
individuals pointed out that it was vague and duplicated an existing
provision. We agreed, and this provision is not included in these
proposed rules.
Explanation of Revisions
These proposed regulations would revise Secs. 404.1740, 404.1745,
404.1750, 404.1765, 404.1770, 404.1799, 416.1540, 416.1545, 416.1550,
416.1565, and 416.1599.
Proposed Secs. 404.1740(b) and 416.1540(b) describe affirmative
duties, which are certain obligations that a representative must
actively perform in his or her representation of claimants in matters
before us. We expect these affirmative duties to promote efficiency and
timeliness in assisting the claimant to meet the burden of proving
eligibility for benefits.
Proposed Secs. 404.1740(b)(1) and 416.1540(b)(1) require the
representative to exercise diligence in obtaining and submitting that
evidence which the claimant wants the decision maker to consider in
ruling on a claim.
Proposed Secs. 404.1740(b)(2)(i) and 416.1540(b)(2)(i) require that
the representative provide, upon request, information regarding the
claimant's medical treatment, vocational factors or other specifically
identified matters, or provide notification that the claimant does not
consent to release the information.
Proposed Secs. 404.1740(b)(2)(ii) and 416.1540(b)(2)(ii) require
that the representative provide, upon request, evidence material to
identified issues which the representative or claimant already has or
may readily obtain. This rule requires furnishing evidence already in
the possession of the representative or claimant, or obtaining copies
of existing evidence not already of record. The provision also mandates
that the representative and claimant furnish all the pertinent evidence
requested, even if it is ostensibly unfavorable to the claimant, or
provide notification by the representative that the claimant does not
consent to its release.
Proposed Secs. 404.1740(b)(3) and 416.1540(b)(3) are intended to
establish minimum requirements governing the competency and behavior of
representatives in their dealings with us. They seek to ensure that the
representative does not become a hindrance, either through ignorance or
willful obstruction, in our attempts to provide a fair and expeditious
disposition of the claim for benefits.
We have weighed the possibility of testing or other formal
certification procedures for non-attorney representatives, but rejected
the idea as infeasible at this time. Nonetheless, in order to identify
those persons who do not possess the requisite qualifications, we are
considering possible revisions to Secs. 404.1705 and 416.1505 to define
in greater detail the minimum requirements to serve as a
representative.
Any individual who provides services as a representative for a fee
shall be expected to demonstrate, in the performance of those services,
sufficient knowledge of the claims process to be of assistance to the
claimant. Ignorance of substantive provisions of law or procedural
requirements shall not be considered a mitigating factor for acts or
omissions which impede or disrupt the efficient and orderly disposition
of a claim.
Proposed Secs. 404.1740(b)(3)(i) and 416.1540(b)(3)(i) essentially
state that the representative must understand what the claimant must
prove in order to qualify for benefits, and know how to obtain and
submit evidence regarding the claim.
Proposed Secs. 404.1740(b)(3)(ii) and 416.1540(b)(3)(ii) require
the representative to promptly answer our requests and communications
pertaining to the pending claim. It is not permissible for the
representative to ignore official communications.
Proposed Secs. 404.1740(b)(3)(iii) and 416.1540(b)(3)(iii) require
cooperation in developing the record, which may typically include
transactions requiring the participation of the claimant, such as
consenting to a treating source's release of medical records,
scheduling consultative examinations and scheduling conferences or
hearing dates.
Proposed Secs. 404.1740(c) and 416.1540(c) describe prohibited
actions, which are certain acts or activities that a representative
must avoid. In part, the prohibited actions incorporate various
statutory provisions set forth in the Act and other legislation.
Proposed Secs. 404.1740(c)(1) and 416.1540(c)(1) are based on the
prohibitions set forth in section 206(a)(5) of the Act and are self-
explanatory. A representative's honest mistake would not be construed
as knowingly misleading a claimant. In determining whether a
representative knowingly misled a claimant, we will consider whether
the action involved matters that the representative should have known
were untrue.
Proposed Secs. 404.1740(c)(2) and 416.1540(c)(2) are based on the
provisions of sections 206 (a) and (b) of the Act and apply to all fee
collections. With regard to section 206(a)(4) of the Act, we will
assume in the absence of evidence to the contrary that work performed
by support staff in a law office is performed under the supervision of
an attorney, thereby permitting the attorney to validly claim direct
payment from past-due benefits for those services in a title II claim.
This assumption will not apply, however, when a person other than an
attorney appears alone at a hearing to provide representation on behalf
of a claimant.
In those cases, the person shall be considered the representative
and will be required to file a fee petition or fee agreement for his or
her services, and will not be entitled to receive direct payment from
past-due benefits for the representation at the hearing.
Proposed Secs. 404.1740(c)(3) and 416.1540(c)(3) are based
generally on the criminal prohibitions in 18 U.S.C. 1001 and the
provisions governing civil monetary penalties and assessments set forth
in section 1129 of the Act and are self-explanatory.
Proposed Secs. 404.1740(c)(4) and 416.1540(c)(4) are directed
against practices where willful or negligent acts or omissions have the
effect of delaying the disposition of a claim for benefits.
Proposed Secs. 404.1740(c)(5) and 416.1540(c)(5) are based on the
provisions of section 1106 of the Act, which prohibit disclosure by any
person of information obtained by the Agency in conjunction with a
claim, except as may be authorized by regulations prescribed by us.
Proposed Secs. 404.1740(c)(6) and 416.1540(c)(6) prohibit a
representative from offering or giving anything of value to persons
involved in the adjudication except as remuneration to a witness for
legitimate expenses or for services rendered. The intent is to prevent
the fact or the appearance of attempting to influence the disposition
of a claim by bestowing gifts or favors on individuals in a position to
materially affect the outcome.
Proposed Secs. 404.1740(c)(7) and 416.1540(c)(7) are directed at
conduct undertaken during the course of oral proceedings which is
disruptive and detrimental to due process and the administration of
justice.
Proposed Secs. 404.1740(c)(7)(i) and 416.1540(c)(7)(i) prohibit
repeated instances of unexcused absences or
[[Page 358]]
tardiness because such conduct adversely affects claimants, diminishes
the ability of the Agency to operate efficiently and harms other
applicants by disrupting hearing schedules and work flow.
Proposed Secs. 404.1740(c)(7)(ii) and 416.1540(c)(7)(ii) address
deliberate acts which have the effect of disrupting the proceedings or
diverting the attention of the participants from the purpose of the
hearing to matters irrelevant to the merits of the case.
Proposed Secs. 404.1740(c)(7)(iii) and 416.1540(c)(7)(iii) are
based in part on the provisions of section 206(a)(5) of the Act, 18
U.S.C. 111 and 28 CFR 64.2(x). They prohibit threatening or
intimidating the participants in an oral proceeding or the employees
assigned to our offices. Actual or implied threats of violence will not
be tolerated.
Proposed Secs. 404.1745 and 416.1545 explain that we may begin
proceedings to suspend or disqualify a person who does not meet our
qualifications for a representative or who violates our rules and
standards governing representatives in their dealings with us.
Proposed Secs. 404.1750 (a) and (d), 404.1765 (a) and (e), 404.1799
(c) and (e), 416.1550 (a) and (d), 416.1565 (a) and (e), and 416.1599
(c) and (e) are being modified to reflect current Agency official
titles and organizational changes.
Proposed Secs. 404.1765(g)(3) and 416.1565(g)(3) are being revised
to remove the first word ``not'' from each paragraph. This corrects
errors made when the regulations on representation of parties were
reorganized, renumbered and republished on August 5, 1980 (45 FR
52078). When the original regulation was published as Sec. 404.983(f)
on April 26, 1969 (34 FR 6973, 6974), it provided that ``[i]f the
individual has filed an answer and if the hearing officer believes that
there is relevant and material evidence available which has not been
presented at the hearing, the hearing officer may at any time prior to
the mailing of notice of the decision, or submittal of a recommended
decision, reopen the hearing for the receipt of such evidence.'' This
is consistent with the preceding language in Sec. 404.983(f), which
states that if a representative ``has filed no answer he shall have no
right to present evidence * * * .''
In the 1980 final rule, the former Sec. 404.983(f) was renumbered
as Sec. 404.1765(f), with a parallel SSI provision at Sec. 416.1565(f).
Paragraph (f)(2) addressed representatives who do not answer charges
and paragraph (f)(3) addressed those who do. Paragraph (f)(3) (45 FR
52078, 52093, 52108) contained a misprint, however, which read, ``If
the representative did not file an answer to the charges * * * .''
Thus, paragraphs (f)(2) and (f)(3) were inconsistent and conflicting.
Subsequently, in 1991, paragraph (f) of Secs. 404.1765 and 416.1565 was
redesignated as paragraph (g) (56 FR 24129, 24131, 24132).
The 1980 misprint substantively changed the meaning of current
paragraph (g)(3). As specifically explained in the preamble to those
rules, however, SSA never intended to make any substantive changes in
those regulations. The regulations were rewritten for the purpose of
reorganizing and restating them more clearly in simpler language. The
misprint has created confusion in the representative disciplinary
process. Consequently, we are taking this opportunity to correct the
error to reflect the original intent of the regulations.
We also are correcting another minor misprint in the current
Sec. 404.1765(g)(3) by making ``decisions'' singular for correctness
and consistency with Sec. 416.1565(g)(3).
Finally, in proposed Sec. 404.1770, paragraphs (a)(3) and (b)(3)
are being amended to correct a publication error that occurred after
paragraph (a)(3) was revised in 1991. As correctly published in final
rules on May 29, 1991 (56 FR 24129, 24132), paragraph (a)(3) was
revised to show that the hearing officer shall mail a copy of the
decision to the parties at their last known addresses. When codified in
the 1992 volume of the Code of Federal Regulations, however, the
revised language of paragraph (a)(3) was erroneously placed in
paragraph (b)(3), superseding that existing language addressing the
effect of a final decision imposing a suspension upon a representative.
With this correction, we will accurately reflect the language and
purpose of paragraphs (a)(3) and (b)(3) and bring Sec. 404.1770 into
conformity with its equivalent Sec. 416.1570.
Electronic Versions
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in WordPerfect and will remain on the FBB during the
comment period.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were not subject to OMB review.
Regulatory Flexibility Act
We certify that the proposed rules, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
The provisions of the proposed rules that involve entities were
developed to allow them to provide representational services without
generating any supplemental reporting requirements. The proposed rules
will not result in any increased legal accounting or consulting costs
to small businesses or small organizations, will not adversely affect
competition in the marketplace, or create barriers to entry on the part
of small entities. In fact, these rules may facilitate such entry into
the representation sphere. The regulations will provide uniform
standards applicable to all entities who engage in the business and
tend to disqualify the unscrupulous and the incompetent practitioners,
thereby expanding demand for others willing and able to perform the
service. Therefore, a regulatory flexibility analysis as provided in
Public Law 96-354, the Regulatory Flexibility Act, is not required.
Paperwork Reduction Act
These regulations impose no reporting/recordkeeping requirements
necessitating clearance by OMB.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security-Disability Insurance; 96.002, Social Security-Retirement
Insurance; 96.004, Social Security-Survivors Insurance; 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping,
Supplemental Security Income (SSI) requirements.
Dated: December 23, 1996.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set forth in the preamble, part 404, subpart R,
chapter III of title 20 of the Code of Federal
[[Page 359]]
Regulations is proposed to be amended as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
1. The authority citation for subpart R of part 404 continues to
read as follows:
Authority: Secs. 205(a), 206, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 406, and 902(a)(5)).
2. Section 404.1740 is revised to read as follows:
Sec. 404.1740 Rules of conduct and standards of responsibility for
representatives.
(a) Purpose and scope. (1) All attorneys or other persons acting on
behalf of a party seeking a statutory right or benefit shall, in their
dealings with us, faithfully execute their duties as agents and
fiduciaries of a party. A representative shall provide competent
assistance to the claimant and recognize the authority of the Agency to
lawfully administer the process. The following provisions in this
section set forth certain affirmative duties and prohibited actions
which shall govern the relationship between the representative and the
Agency, including matters involving our administrative procedures and
fee collections.
(2) Moreover, all representatives shall be forthright in their
dealings with us and with the claimant and shall comport themselves
with due regard for the nonadversarial nature of the proceedings by
complying with our rules and standards, which are intended to ensure
orderly and fair presentation of evidence and argument.
(b) Affirmative duties. A representative shall:
(1) Promptly obtain all information and evidence which the claimant
wants to submit in support of the claim and forward the same for
consideration as soon as practicable, but no later than the due date
designated by the Agency, except for good cause shown;
(2) Comply with our requests for information or evidence at any
stage of the administrative review process as soon as practicable, but
no later than the due date designated by the Agency, except for good
cause shown. This includes the obligation to:
(i) Provide, upon request, identification of all known medical
sources, updated information regarding medical treatment, new or
corrected information regarding work activity, other specifically
identified information pertaining to the claimed right or benefit, or
notification by the representative after consultation with the claimant
that the claimant does not consent to the release of some or all of the
material; and
(ii) Provide, upon request, all evidence and documentation
pertaining to specifically identified issues which the representative
or the claimant either has within his or her possession or may readily
obtain, or notification by the representative after consultation with
the claimant that the claimant does not consent to the release of some
or all of the material;
(3) Conduct his or her dealings in a manner which does not obstruct
the efficient, fair or orderly conduct of the administrative review
process, including duties to:
(i) Be cognizant of the matters at issue in establishing
entitlement or eligibility to the claimed right or benefit, and
knowledgeable of our evidentiary and procedural requirements in order
to provide competent assistance to the party he or she represents;
(ii) Provide timely and responsive answers to requests from the
Agency for information pertinent to processing of the claim; and
(iii) Cooperate with our attempts to obtain information and
documentation, or complete processing requirements for a claimed right
or benefit.
(c) Prohibited actions. A representative shall not:
(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;
(2) 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;
(3) Knowingly make or present, or participate in the making or
presentation of, false oral or written statements, assertions or
representations about a material fact concerning a matter within our
jurisdiction;
(4) Willfully or negligently delay, or cause to be delayed, by any
act or omission, without good cause, the processing of a claim at any
stage of the administrative review process;
(5) Divulge, except as may be authorized by regulations prescribed
by us, any information we furnish or disclose about a claim or
prospective claim of another person;
(6) Attempt to influence, directly or indirectly, the outcome of a
decision, determination or other administrative action by offering 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 administrative review 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; or
(7) Engage in actions or behavior prejudicial to the fair and
orderly conduct of oral proceedings, including but not limited to:
(i) Repeated instances of unauthorized absences, or persistent
tardiness at scheduled proceedings;
(ii) Willful behavior which has the effect of improperly disrupting
proceedings or obstructing the adjudicative process; and
(iii) Threatening or intimidating language, gestures or actions
directed at a presiding official, witness or Agency employee.
3. Section 404.1745 is revised to read as follows:
Sec. 404.1745 Violations of our requirements, rules, or standards.
When we have evidence that a representative fails to meet our
qualification requirements or 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. We may
file charges seeking such sanctions when we have evidence that a
representative:
(a) Does not meet the qualifying requirements described in
Sec. 404.1705;
(b) Has violated the affirmative duties or engaged in the
prohibited actions set forth in Sec. 404.1740; or
(c) Has been convicted of a violation under section 206 of the Act.
4. Section 404.1750 is amended by revising paragraphs (a) and (d)
to read as follows:
Sec. 404.1750 Notice of charges against a representative.
(a) The Deputy Commissioner for Programs, Policy, Evaluation and
Communications (or other official the Commissioner may designate), or
his or her designee, will prepare a notice containing a statement of
charges that constitutes the basis for the proceeding against the
representative.
* * * * *
(d) The Deputy Commissioner for Programs, Policy, Evaluation and
Communications (or other official the Commissioner may designate), or
his or her designee, may extend the 30-day period for good cause.
* * * * *
5. Section 404.1765 is amended by revising paragraph (a), the
second
[[Page 360]]
sentence of paragraph (e), and paragraph (g)(3) to read as follows:
Sec. 404.1765 Hearing on charges.
(a) Scheduling the hearing. If the Deputy Commissioner for
Programs, Policy, Evaluation and Communications (or other official the
Commissioner may designate), or his or her designee, does not take
action to withdraw the charges within 15 days after the date on which
the representative filed an answer, we will hold a hearing and make a
decision on the charges.
* * * * *
(e) Parties. * * * The Deputy Commissioner for Programs, Policy,
Evaluation and Communications (or other official the Commissioner may
designate), or his or her designee, shall also be a party to the
hearing.
* * * * *
(g) * * *
(3) If the representative did file an answer to the charges, and if
the hearing officer believes that there is material evidence available
that was not presented at the hearing, the hearing officer may at any
time before mailing notice of the hearing decision reopen the hearing
to accept the additional evidence.
* * * * *
6. Section 404.1770 is amended by revising the first sentence of
paragraph (a)(3) and by revising paragraph (b)(3) to read as follows:
Sec. 404.1770 Decision by hearing officer.
(a) * * *
(3) The hearing officer shall mail a copy of the decision to the
parties at their last known addresses. * * *
(b) * * *
(3) If the final decision is that a person is suspended for a
specified period of time from being a representative in dealings with
us, he or she will not be permitted to represent anyone in dealings
with us during the period of suspension unless authorized to do so
under the provisions of Sec. 404.1799.
7. Section 404.1799 is amended by revising the first sentence of
paragraph (c) and the second sentence of paragraph (e) to read as
follows:
Sec. 404.1799 Reinstatement after suspension or disqualification--
period of suspension not expired.
* * * * *
(c) The Appeals Council shall allow the Deputy Commissioner for
Programs, Policy, Evaluation and Communications (or other official the
Commissioner may designate), or his or her designee, upon notification
of receipt of the request, 30 days in which to present a written report
of any experiences with the suspended or disqualified person subsequent
to that person's suspension or disqualification. * * *
* * * * *
(e) * * * It shall also mail a copy to the Deputy Commissioner for
Programs, Policy, Evaluation and Communications (or other official the
Commissioner may designate), or his or her designee.
* * * * *
For the reasons set forth in the preamble, part 416, subpart O,
chapter III of title 20 of the Code of Federal Regulations is proposed
to be amended as set forth below.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
8. The authority citation for subpart O of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5) and 1631(d) of the Social Security
Act (42 U.S.C. 902(a)(5) and 1383(d)).
9. Section 416.1540 is revised to read as follows:
Sec. 416.1540 Rules of conduct and standards of responsibility for
representatives.
(a) Purpose and scope. (1) All attorneys or other persons acting on
behalf of a party seeking a statutory right or benefit shall, in their
dealings with us, faithfully execute their duties as agents and
fiduciaries of a party. A representative shall provide competent
assistance to the claimant and recognize the authority of the Agency to
lawfully administer the process. The following provisions in this
section set forth certain affirmative duties and prohibited actions
which shall govern the relationship between the representative and the
Agency, including matters involving our administrative procedures and
fee collections.
(2) Moreover, all representatives shall be forthright in their
dealings with us and with the claimant and shall comport themselves
with due regard for the nonadversarial nature of the proceedings by
complying with our rules and standards, which are intended to ensure
orderly and fair presentation of evidence and argument.
(b) Affirmative duties. A representative shall:
(1) Promptly obtain all information and evidence which the claimant
wants to submit in support of the claim and forward the same for
consideration as soon as practicable, but no later than the due date
designated by the Agency, except for good cause shown;
(2) Comply with our requests for information or evidence at any
stage of the administrative review process as soon as practicable, but
no later than the due date designated by the Agency, except for good
cause shown. This includes the obligation to:
(i) Provide, upon request, identification of all known medical
sources, updated information regarding medical treatment, new or
corrected information regarding work activity, other specifically
identified information pertaining to the claimed right or benefit, or
notification by the representative after consultation with the claimant
that the claimant does not consent to the release of some or all of the
material; and
(ii) Provide, upon request, all evidence and documentation
pertaining to specifically identified issues which the representative
or the claimant either has within his or her possession or may readily
obtain, or notification by the representative after consultation with
the claimant that the claimant does not consent to the release of some
or all of the material;
(3) Conduct his or her dealings in a manner which does not obstruct
the efficient, fair or orderly conduct of the administrative review
process, including duties to:
(i) Be cognizant of the matters at issue in establishing
entitlement or eligibility to the claimed right or benefit, and
knowledgeable of our evidentiary and procedural requirements in order
to provide competent assistance to the party he or she represents;
(ii) Provide timely and responsive answers to requests from the
Agency for information pertinent to processing of the claim; and
(iii) Cooperate with our attempts to obtain information and
documentation, or complete processing requirements for a claimed right
or benefit.
(c) Prohibited actions. A representative shall not:
(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;
(2) 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;
(3) Knowingly make or present, or participate in the making or
presentation of, false oral or written statements, assertions or
representations about a material fact concerning a matter within our
jurisdiction;
(4) Willfully or negligently delay, or cause to be delayed, by any
act or
[[Page 361]]
omission, without good cause, the processing of a claim at any stage of
the administrative review process;
(5) Divulge, except as may be authorized by regulations prescribed
by us, any information we furnish or disclose about a claim or
prospective claim of another person;
(6) Attempt to influence, directly or indirectly, the outcome of a
decision, determination or other administrative action by offering 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 administrative review 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; or
(7) Engage in actions or behavior prejudicial to the fair and
orderly conduct of oral proceedings, including but not limited to:
(i) Repeated instances of unauthorized absences, or persistent
tardiness at scheduled proceedings;
(ii) Willful behavior which has the effect of improperly disrupting
proceedings or obstructing the adjudicative process; and
(iii) Threatening or intimidating language, gestures or actions
directed at a presiding official, witness or Agency employee.
10. Section 416.1545 is revised to read as follows:
Sec. 416.1545 Violations of our requirements, rules, or standards.
When we have evidence that a representative fails to meet our
qualification requirements or 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. We may
file charges seeking such sanctions when we have evidence that a
representative:
(a) Does not meet the qualifying requirements described in
Sec. 416.1505;
(b) Has violated the affirmative duties or engaged in the
prohibited actions set forth in Sec. 416.1540; or
(c) Has been convicted of a violation under section 1631(d) of the
Act.
11. Section 416.1550 is amended by revising paragraphs (a) and (d)
to read as follows:
Sec. 416.1550 Notice of charges against a representative.
(a) The Deputy Commissioner for Programs, Policy, Evaluation and
Communications (or other official the Commissioner may designate), or
his or her designee, will prepare a notice containing a statement of
charges that constitutes the basis for the proceeding against the
representative.
* * * * *
(d) The Deputy Commissioner for Programs, Policy, Evaluation and
Communications (or other official the Commissioner may designate), or
his or her designee, may extend the 30-day period for good cause.
* * * * *
12. Section 416.1565 is amended by revising paragraph (a), the
second sentence of paragraph (e), and paragraph (g)(3) to read as
follows:
Sec. 416.1565 Hearing on charges.
(a) Scheduling the hearing. If the Deputy Commissioner for
Programs, Policy, Evaluation and Communications (or other official the
Commissioner may designate), or his or her designee, does not take
action to withdraw the charges within 15 days after the date on which
the representative filed an answer, we will hold a hearing and make a
decision on the charges.
* * * * *
(e) Parties. * * * The Deputy Commissioner for Programs, Policy,
Evaluation and Communi cations (or other official the Commissioner may
designate), or his or her designee, shall also be a party to the
hearing.
* * * * *
(g) * * *
(3) If the representative did file an answer to the charges, and if
the hearing officer believes that there is material evidence available
that was not presented at the hearing, the hearing officer may at any
time before mailing notice of the hearing decision reopen the hearing
to accept the additional evidence.
* * * * *
13. Section 416.1599 is amended by revising the first sentence of
paragraph (c) and the second sentence of paragraph (e) to read as
follows:
Sec. 416.1599 Reinstatement after suspension or disqualification--
period of suspension not expired.
* * * * *
(c) The Appeals Council shall allow the Deputy Commissioner for
Programs, Policy, Evaluation and Communications (or other official the
Commissioner may designate), or his or her designee, upon notification
of receipt of the request, 30 days in which to present a written report
of any experiences with the suspended or disqualified person subsequent
to that person's suspension or disqualification. * * *
* * * * *
(e) * * * It shall also mail a copy to the Deputy Commissioner for
Programs, Policy, Evaluation and Communications (or other official the
Commissioner may designate), or his or her designee.
* * * * *
[FR Doc. 97-38 Filed 1-2-97; 8:45 am]
BILLING CODE 4190-29-P
