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HALLEX I-1-302

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Fraud and Criminal Violations

Chapter: I-1-300

June 30, 1994

Current through March 1997

I-1-302 FRAUD

A. Violations Subject to Criminal Prosecution for Fraud

The following violations are subject to criminal prosecution for fraud:

1. Furnishing false information of identity in connection with the establishment and maintenance of Social Security records, or with the intent to gain information as to the date of birth, employment, wages, or benefits of any person;

2. Falsely representing oneself to be an employee of the United States;

3. Using a Social Security number obtained on the basis of false information or falsely using the Social Security number of another person, for the purpose of obtaining or increasing a payment under Social Security or any other federally funded program, or for any other purpose;

4. Altering, buying, selling, or counterfeiting a Social Security card;

5. Disclosing, using, or compelling the disclosure of the Social Security number of any person;

6. Making or causing to be made a false statement or representation of a material fact for use in determining rights to Social Security benefits, Medicare, Supplemental Security Income, or Black Lung benefits;

7. Making or causing to be made any false statement or representation of a material fact in any application for any payment or for a disability determination under the Social Security Act;

8. Making or causing to be made any false statement or representation as to:

- whether wages were paid or received, the amount of such wages, the period during which wages were paid or received, or the person to whom such wages were paid; or

- whether net earnings from self-employment were received, the amount of such earnings, the period during which such earnings were received, or the person who received them;

9. Concealing or failing to report any event affecting the initial or continued right to payment received or to be received by a person individually or on behalf of another;

10. Converting all or any part of a payment received on behalf of a beneficiary to a use other than for the use and benefit of that beneficiary.

A party may be subject to criminal prosecution even when the attempted fraud was unsuccessful and the government has not made payment as a result. The penalty upon conviction for violation of the criminal provisions of the Social Security Act may be a fine, imprisonment, or both.

 

 

HALLEX I-1-303

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Fraud and Criminal Violations

Chapter: I-1-300

June 30, 1994

Current through March 1997

I-1-303 CRIMINAL VIOLATIONS BY REPRESENTATIVES

An attorney or nonattorney representative of persons claiming benefits under the Social Security Act may be criminally charged if he or she commits one of the following offenses:

- In any manner willfully and knowingly deceives, misleads, or threatens any claimant or prospective claimant, or beneficiary;

- Charges or collects or makes any agreement to charge or collect, directly or indirectly, any fee in excess of the maximum fee authorized by the Secretary;

- Divulges, except when legally authorized, any information SSA furnishes or discloses about the claim or prospective claim of another person.

Refer to section I-1-140 for a discussion on administrative actions which may result in suspension or disqualification of a representative from practicing before the Social Security Administration.

 

 

HALLEX I-1-304

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Fraud and Criminal Violations

Chapter: I-1-300

June 30, 1994

Current through March 1997

I-1-304 HEARING OFFICE RESPONSIBILITIES

A. Referring the Suspected Violation

Personnel in any OHA office, including OHA Headquarters, may observe or discover possible criminal violations of the Social Security Act or other federal statutes. When this occurs, the office must refer the matter to the Special Counsel Staff (SCS) in OHA Headquarters.

1. The referring office should provide a description of the circumstances which constitute the basis for suspecting a violation. The referral should also include copies of all the existing substantiating documentation and evidence, including copies of pertinent portions of the files, statements of claimants, statements or admissions from the suspected offender, statements of witnesses, copies of any contracts or agreements between the parties, and other documentary evidence such as bills, receipts, cancelled checks or money orders.

2. The referring office should furnish a copy of the tape recording of the hearing if the testimony is deemed relevant to the suspected violation. If the referring office is unable to duplicate the tape recording, advise the SCS.

3. The referral should indicate whether there are other questionable cases involving the same individual.

B. Notification by U.S. Attorney of Suspected Violations

When a request for hearing is pending before an Administrative Law Judge (ALJ) and a U.S. Attorney or other law enforcement official requests that the matter be delayed because of a possible criminal violation, the ALJ should continue routine processing of the case and refer the request to the RCALJ for advice. The RCALJ must consult with the Regional Chief Counsel and advise the ALJ accordingly. Neither the ALJ nor the hearing office staff may undertake action on the suspected violation unless otherwise directed.

C. Actions at the Hearing

The ALJ must limit the hearing to the issues set forth in the notice of hearing and avoid initiating inquiries regarding suspected criminal violations which are not relevant to the merits of the case. This does not preclude the ALJ from resolving conflicts or discrepancies in the evidence, or from obtaining information essential to proper disposition of the claim.

NOTE: If during the course of the hearing the claimant or another witness offers testimony indicative of a violation of criminal law, do not attempt to obtain further information regarding the possible criminal conduct. For example, information regarding drug dealing which is unrelated to the pending claim, may be disclosed at the hearing. Unauthorized disclosure of information obtained during a hearing could constitute a violation of the Privacy Act or the Social Security Act. If the claimant or another witness offers testimony indicative of a violation of criminal law, the ALJ must consult with the RCALJ regarding possible actions, if any, warranted by the testimony. The RCALJ must consult with the Regional Chief Counsel and advise the ALJ accordingly.

D. The ALJ's Decision

The ALJ should limit the decision to the issues set forth in the notice of hearing and should not include any reference to suspected criminal violations. The ALJ should deal with false testimony or fraudulent documentation in terms of credibility, reliability and authenticity of the evidence rather than possible violations of the law, and issue a decision on the claim accordingly.

 

 

HALLEX I-1-401

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Information Disclosure

Chapter: I-1-400

June 30, 1994

Current through March 1997

I-1-401 DISCLOSURE OF INFORMATION

Citations: Social Security Act (Section 1106) > 5 U.S.C. 552 (Freedom of Information Act) > 5 U.S.C. 552a (Privacy Act) 20 CFR Part 401 (SSA--Disclosure of Official Records and Information) 20 CFR Part 422, Subpart E (SSA--Availability of Information and Records to the Public) 45 CFR Part 5 (DHHS--Availability of Information to the Public) 45 CFR Part 5b (DHHS--Privacy Act Regulations)

See also: > 42 U.S.C. 602 & 1320b-7 (Aid to Families with Dependent Children); > 42 U.S.C. 1202 (Aid to Blind); > 42 U.S.C. 1352 (Aid to Disabled); > 42 U.S.C. 615 and > 8 U.S.C. 1360 (Aliens); > 42 U.S.C. 653 & 663 (Parent Locator Service); > 42 U.S.C. 405 and 408(h) (Social Security Numbers); > 42 U.S.C. 6103 and 6109 (Tax Return Information); > 7 U.S.C. 2025 (Food Stamp Programs).

The Social Security Administration handles requests for disclosure of information in accordance with the Social Security Act, the Privacy Act (PA), the Freedom of Information Act (FOIA), and other applicable federal statutes.

Some laws require disclosure while others require us to withhold information. For example, section 1106 of the Social Security Act prohibits disclosure of any files, records, or information obtained by a DHHS employee in the course of his or her duties, or obtained by any person from a DHHS employee, except pursuant to regulations prescribed by the Secretary. Other provisions of the Social Security Act require disclosure of information for certain program purposes. These include disclosures to the DHHS Office of the Inspector General, the Parent Locator Service in the Office of Child Support Enforcement and to States for administration of Aid to Families with Dependent Children. Other federal laws require disclosure of certain information to other agencies, such as the Veterans Administration and the Immigration and Naturalization Service.

If no law specifically requires or prohibits the disclosure sought in a particular request for information, the Social Security Administration will handle the request in accordance with the Freedom of Information Act and the Privacy Act.

The basic purpose of the Freedom of Information Act is to open agency action to the light of public scrutiny by providing, upon request, information regarding an agency's performance of its statutory duties. The FOIA generally provides that any person has a right of access to federal agency records, except to the extent that such records are protected from disclosure by one of the statutory exemptions.

If the FOIA does not require disclosure because one of the exemptions applies, SSA has the discretion to disclose information to the public if both the Privacy Act and section 1106 of the Social Security Act permit disclosure.

 

 

HALLEX I-1-402

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Information Disclosure

Chapter: I-1-400

June 30, 1994

Current through March 1997

I-1-402 FREEDOM OF INFORMATION ACT

A. General

1. The FOIA requires us to disclose information in any agency record upon request from the public, unless one of several exemptions applies. It differs from the Privacy Act which pertains only to agency records about individuals which are maintained in a System of Records.

2. As defined by the regulation, a "record" means any handwritten, typed, or printed document, and documentary material in other forms.

3. The "public" does not include Federal agencies, courts, or the Congress, but does include State agencies, individuals, corporations, partnerships, foreign, state, or local governments, and most other entities.

4. FOIA requests can be made for any reason; the identity of the requester and his or her purpose for making the request have no bearing on the merits of the request. We must disclose the information requested unless one of the exemptions applies. When an exemption does apply, we may then consider whether disclosure will suit the purpose behind the FOIA, i.e., to keep citizens informed about what their government is doing.

5. Requests need not be received in writing and need not cite the FOIA to be handled under the FOIA regulations. When an oral request for information under the FOIA is received, the receiving office should prepare a "Memorandum for the File" to document the request.

6. We are required to provide only one copy of the requested material. Further, we only furnish copies of records we have in our possession or control. We are not required to create new records, or to organize or reorganize our files in order to accommodate a request.

B. Field Procedures

1. Information Field Personnel Must Disclose

An OHA field office should maintain and must allow inspection of the following materials:

- Compilation of the Social Security Laws

- Title 5, United States Code

- The Public Information Regulation of the Department of Health and Human Services (45 CFR Part 5)

- Social Security Administration regulations under the retirement, survivors, disability, supplemental security income programs, and Part B of title IV (Black Lung Benefits); i.e., title 20, Code of Federal Regulations Parts 401, 404, 410, 416, and 422

- Medicare program regulations issued by the Health Care Financing Administration, 42 CFR Parts 400-498

- Social Security Rulings

- Social Security Acquiescence Rulings

- Social Security Handbook

- HALLEX

Under the FOIA, SSA may charge a fee for search, review and duplication efforts expended to provide material in response to an FOIA request, as discussed in 45 CFR Part 5, Subpart D--Fees.

2. Information Field Personnel May Not Disclose

- Only the SSA Freedom of Information Officer has the authority to determine whether to disclose records under the FOIA other than the publications listed above. When a field office receives an FOIA request for documents or records other than these publications, the receiving office must acknowledge the request in writing and promptly forward the request, together with copies of the requested material, to:

Freedom of Information Officer

Social Security Administration

4100 Annex Building

6401 Security Boulevard

Baltimore, Maryland 21235

- If the requested material is partly or wholly unavailable, note this on the memorandum to the Freedom of Information Officer. The forwarding office should also include a record of the search time which was required to respond to the request and the grade(s) of the employee(s) who performed the search.

C. Headquarters Procedures

1. The Division of Litigation Analysis and Implementation (DLAI), FOIA/PA Staff, in the Office of Civil Actions handles all requests for records under the FOIA which are received by headquarters components.

2. The receiving component must acknowledge any such request in writing and promptly forward the request by route slip to the FOIA/PA Staff of DLAI, along with a copy of the requested material. If the requested material is partly or wholly unavailable, note this on the forwarding route slip.

3. Include a record of the search time which was required to respond to the request and the grade(s) of the employee(s) who performed the search.

4. When the FOIA/PA Staff does not have the jurisdiction to make the decision on disclosure, they will forward the request along with a copy of the requested information to the Freedom of Information Officer in Baltimore for a decision on disclosure.

 

 

HALLEX I-1-403

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 1: General Subjects

Subject: Information Disclosure

Chapter: I-1-400

April 26, 1995

Current through March 1997

I-1-403 PRIVACY ACT

A. General

1. The Privacy Act applies to all records or information about an individual, maintained by an agency in a System of Records, which is retrievable by the individual's name, Social Security number, or some other type of personal identifier assigned to that individual. The Privacy Act does not require access to records retrieved by some other method.

2. Subject to several exemptions, the Privacy Act grants an individual the right of access to his or her own records and prohibits disclosure of such records to others without the prior written request or consent of the individual.

3. The Privacy Act does not apply to all documents and records pertaining to individuals. It applies only to records maintained by an agency in a System of Records from which information is retrieved using the name of the individual or some other type of personal identifier. The FOIA, by comparison, requires an agency to consider any request which reasonably describes the records whether or not such information is maintained in a System of Records.

B. List of OHA's Systems of Records (With the Catalog Number of Each System):

- Attorney Fee File (09-60-0003)

- Working File of the Appeals Council (09-60-0004)

- Administrative Law Judge Working File on Claimant Cases (09-60-0005)

- Storage of Hearing Records: Tape Cassettes and Audiograph Discs (09-60-0006)

- Administrative Law Judge Docket of Claimant Cases (09-60-0008)

- Hearings and Appeals Case Control System (09-60-0009)

- Listing and Alphabetical Name File (Folder) of Vocational Experts and Medical Experts (09-60-0012)

- Records of Usage of Medical Experts and Vocational Experts (09-60-0013)

- Curricula Vitae and Professional Qualifications of Medical Experts and Resumes of Vocational Experts (09-60-0014)

- Hearing Office Master Docket of Claimant Cases (09-60-0184)

- Representative Disqualification/Suspension Information System (09-60-0219)

NOTE: In claims pending before OHA, OHA also responds to requests involving the Claims Folder System (09-60-0089) when OHA has the claim file.

C. Individual's Right to Access His or Her Records in a System of Records

Pursuant to the Privacy Act (see > 5 U.S.C. § 552a(d)(1)), SSA generally grants individuals the right of access to material about themselves maintained in a System of Records. This general principle is subject to exceptions including restrictions on access to:

- certain medical records (see I-1-403 G. 4.);

- investigatory information compiled for criminal law enforcement records that are maintained in a System of Records for which SSA has published a "notice of exemption from access" in the Federal Register; or

- records compiled in anticipation of a court action or formal administrative proceeding.

D. Processing an Individual's Request to Access Material in OHA's Systems of Records and the Claims Folder System

1. If access is requested for a program purpose (see 20 CFR § 422.440) and the request is a claimant's or claimant's representative's first request for access to material in an OHA System of Records or the Claims Folder System:

- the hearing office (HO) staff will process the request following the procedures in HALLEX I-1-403 G. and > I-2-135 C.; and

- the Office of Appellate Operations (OAO) staff will process the request following the procedures in HALLEX I-1-403 H. and > I-3-084 C.

2. If access is requested for a program purpose and OHA or SSA previously provided a free copy of the material to the claimant or claimant's representative, OHA will:

- compute the cost of the material, using 10 cents a page for copying paper records (see > 20 CFR § 401.125 and > 45 CFR § 5b.13) and the appropriate cost for providing a second copy of a cassette recording or transcript of the hearing (if requested); and

- waive the cost if the total cost does not exceed $50.

3. If access is requested for a non-program purpose, OHA staff will forward the request to:

Office of Hearings and Appeals

FOIA/PA Staff

5107 Leesburg Pike, Suite 702

Falls Church, VA 22041-3200


NOTE: Section 1106(c) of the Social Security Act provides that a requester will pay the full cost of SSA's supplying information for a non-program purpose.

E. Third Party Disclosure -- Request for Records About an Individual Identified in an OHA System of Records or the Claims Folder System -- Consent of the Individual Identified Is Required

1. All third party requests, i.e., requests not made by the individual identified in the System of Records, for information other than that listed in F. below must be accompanied by the identified individual's consent.

2. The third party must identify the material requested and provide a signed and dated statement from the individual that:

- Identifies the requested records;

- Identifies the individual to whom SSA may disclose the records; and

- States that SSA has the identified individual's permission to disclose the records.

F. Third Party Disclosure -- Request for Records About an Individual Identified in an OHA System of Records or the Claims Folder System -- Consent of the Individual Identified Is Not Required

1. The consent of the individual identified in an OHA or SSA System of Records is not required if the third party disclosure is:

- to employees of the agency that maintains the record and they need the record in the performance of their duties;

- required by the FOIA;

- for a "routine use," i.e., a disclosure outside DHHS for a purpose compatible with the purpose for which the record was collected including disclosure to Members of Congress and their staffs on behalf of the individual identified;

- to either House of Congress or to any committee, subcommittee, or joint committee and the information is on a matter within that committee's jurisdiction;

- for law enforcement purposes (generally limited to crimes involving SSA programs, similar programs of other agencies, or violent crimes when the individual has been indicted or convicted);

- for health and safety reasons;

NOTE: The Privacy Act (> 5 U.S.C. 552a(b)(8) and SSA regulations 20 CFR § 401.320 provide that when disclosure for a health or safety reason is made to a third party, the disclosing individual must send a notice of the disclosure to the last known address of the individual whose record was disclosed.

- for statistical and research activities;

- to the General Accounting Office;

- to the courts, under certain circumstances; and

- to accommodate other specific recipients such as the Bureau of the Census or the National Archives and Records Administration.

2. If consent is not required and the request is not received in writing, the receiving office will prepare a "Memorandum for the File" to document the request.

G. Hearing Office and Regional Office (RO) Procedures

1. Specific HO procedures for providing access to material in an OHA System of Records or the Claims Folder System related to a program purpose are provided in HALLEX > I-2-135.

2. The HO or RO may provide the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant access to information contained in the claim file either by permitting on-site review or by providing copies of requested documents.

3. When providing access or allowing disclosure of claim file material, do not allow the claim file or any other file to leave the custody and control of SSA.

4. While a claim is pending before an Administrative Law Judge (ALJ), we may refuse direct access to medical records if disclosure would be inappropriate or injurious to the individual described in the records. In such cases, we may require an individual to designate a responsible person to review the records on behalf of the individual and inform the individual of the contents of the medical records.

5. A HO may disclose representative material from the ALJ Working File to a claimant; and a RO may disclose material from an Attorney Fee File to a claimant. Also, the HO or RO may disclose, or provide copies of, representative material without the consent of the claimant to an attorney or non-attorney representative under the following routine use:

"to the extent necessary to dispose of. . .[a] fee request."

6. If an HO or RO receives a request for information under the Privacy Act that raises a question concerning the propriety or legality of complying with the request, or which does not involve the claim file or the Attorney Fee File (for example, a request for material from the ALJ Working File), the HO or RO will acknowledge the request and send it to:

Office of Hearings and Appeals

FOIA/PA Staff

5107 Leesburg Pike, Suite 702

Falls Church, VA 22041-3200

Include with the referral copies of the requested information, identifying the source of the information. If the HO or RO does not have all of the requested information, the referral should identify what information is not available.


H. Office of Appellate Operations Procedures

1. Specific OAO procedures for providing access to material in an OHA System of Records or the Claims Folder System are provided in HALLEX > I-3-084.

2. When a claim is pending before the Appeals Council, the hearings and appeals analyst ("analyst") may respond to requests for records from a claim file when a request is made by the claimant or the claimant's representative. The analyst will place a copy of the response in the claim file to document SSA's action on the request.

NOTE: If a matter is before the Appeals Council on a request for review, the claimant will have access to his or her medical records which are part of the record for decision without having to designate a representative.

3. If the request is for information from the Attorney Fee File or if the claim is no longer pending before the Appeals Council, the analyst will forward the request to the FOIA/PA Staff, Suite 702, to process.

4. Send requests for information under the Privacy Act that do not involve the claim file or the Attorney Fee File, or requests from individuals other than the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant to the FOIA/PA Staff, Suite 702. Include copies of the requested material, if available. Examples of requests for information not involving the claim file or the Attorney Fee File include the following:

- requests for material from the ALJ Working File; and

- requests for working papers of the Appeals Council.

I. Procedures for Other Headquarters Components

1. Any Headquarters component in possession of a claim file may respond to program-related requests for information from the claim file when made by the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant. Place a copy of the response in the claim file to document SSA's action on the request.

2. Send requests for information under the Privacy Act that do not involve the claim file, or requests from individuals other than the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant to the FOIA/PA Staff, Suite 702. Include copies of the requested material, if available.

 

 

HALLEX I-1-404

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Information Disclosure

Chapter: I-1-400

June 30, 1994

Current through March 1997

I-1-404 PROCESSING REQUESTS FOR COPIES OF HALLEX (ADDED 09/92)

In the past, OHA has received requests from private individuals for copies of HALLEX both in hard copy and electronic format. OHA has obtained assistance in filling these requests by using the services of the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, Virginia 22161. NTIS is a U.S. Government agency under the Department of Commerce, which deals specifically with all aspects of information and information products.

As part of its service, NTIS can distribute HALLEX material to the public without involvement by OHA. OHA has provided HALLEX material to NTIS in both hard copy and electronic format and provides updates of the material on an ongoing basis. The public can obtain HALLEX material directly from NTIS on a "one time only" basis or may subscribe to a standing order which includes the current HALLEX and any future updates. Through NTIS, the public can obtain all HALLEX material or subscribe to specific portions; e.g., Volume I only, or Division 1, or Divisions 2 and 5, etc. NTIS has advertised its services to the public through announcements and other media releases.

Most requests from the public for copies of HALLEX will be made directly to NTIS. However, if a Headquarters or field component receives a request from the public for HALLEX material, the following procedures apply.

A. Headquarters Procedures

1. HALLEX, > I-1-402 C. provides that the Division of Litigation Analysis and Implementation (DLAI), FOIA/PA Staff, in the Office of Civil Actions (OCA) handles all requests for records under the FOIA which Headquarters components receive. In addition, the FOIA/PA Staff also handles all requests for HALLEX material.

2. When a Headquarters component receives a request for HALLEX either in hard copy or electronic format, the receiving component should refer the request to OCA/DLAI, FOIA/PA Staff (Suite 702).

3. The FOIA/PA Staff will acknowledge the request, advise the requester of the availability of specific material through NTIS, and provide information on how to place an order with NTIS for the desired material and the cost of the material.

4. The FOIA/PA Staff may release HALLEX material directly to the requester if the request is limited to specific sections or specific pages within a Division (Volume I) or Part (Volume II).

5. It is essential to forward to OCA/DLAI, FOIA/PA Staff all requests for HALLEX material. Individual Headquarters components must not respond directly or release HALLEX material to the public.

B. Hearing Office Procedures

1. HALLEX, > I-1-402 B. provides that field offices should maintain and must allow inspection of HALLEX. When a hearing office (HO) receives a request for HALLEX material, it should advise the requester that the material is available for inspection at the HO.

2. If a hard copy is requested, ask the requester to identify the portion(s) of HALLEX material desired. If the request is limited; e.g., for a few sections or pages within a Division (Volume I) or Part (Volume II), the HO will photocopy and release the requested material directly to the requester.

3. If the request is for the complete HALLEX, or for an entire Division or Part, the HO should forward the request to:

Office of Hearings and Appeals, SSA

Division of Litigation Analysis and Implementation

FOIA/PA Staff

Suite 702

Falls Church, Virginia 22041-3200

4. If an HO receives a request for HALLEX in electronic format, the HO should forward the request to DLAI, FOIA/PA Staff at the above address. The FOIA/PA Staff will take appropriate action.


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