Representation of Parties; Recognition, Disqualification, and Reinstatement of Representative, 19361-19366 [05-7353]
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Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Proposed Rules
enough to prevent you as an adult from
doing any gainful activity. If you are a
child seeking SSI payments based on
disability, the listings describe
impairments that we consider severe
enough to result in marked and severe
functional limitations. Although the
listings are contained only in appendix
1 to subpart P of part 404 of our
regulations, we incorporate them by
reference in the SSI program in
§ 416.925 of our regulations, and apply
them to claims under both title II and
title XVI of the Act.
Dated: March 21, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
[FR Doc. 05–7358 Filed 4–12–05; 8:45 am]
How Do We Use the Listings?
The listings are in two parts. There
are listings for adults (part A) and for
children (part B). If you are a person age
18 or over, we apply the listings in part
A when we assess your claim, and we
never use the listings in part B.
If you are a person under age 18, we
first use the criteria in part B of the
listings. If the listings in part B do not
apply, and the specific disease
process(es) has a similar effect on adults
and children, we then use the criteria in
part A. (See §§ 404.1525 and 416.925.)
If your impairment(s) does not meet
any listing, we will also consider
whether it medically equals any listing;
that is, whether it is as medically severe.
(See §§ 404.1526 and 416.926.)
Representation of Parties;
Recognition, Disqualification, and
Reinstatement of Representative
What If You Do Not Have an
Impairment(s) That Meets or Medically
Equals a Listing?
We use the listings only to decide that
you are disabled or that you are still
disabled. We will never deny your claim
or decide that you no longer qualify for
benefits because your impairment(s)
does not meet or medically equal a
listing. If you have a severe
impairment(s) that does not meet or
medically equal any listing, we may still
find you disabled based on other rules
in the ‘‘sequential evaluation process’’
described above. Likewise, we will not
decide that your disability has ended
only because your impairment(s) does
not meet or medically equal a listing.
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
requirements, Supplemental Security
Income (SSI).
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BILLING CODE 4191–02–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulation Nos. 4 and 16]
RIN 0960–AG15
Social Security Administration.
Proposed rules.
AGENCY:
ACTION:
SUMMARY: We propose to revise our
regulations to identify additional bases
upon which we may bring charges to
disqualify an individual from acting as
a representative before the Social
Security Administration (SSA), and to
set forth the conditions under which we
will reinstate an individual whom we
have disqualified as a representative
because the individual collected or
received, and retains, a fee in excess of
the amount we authorized. These
proposed rules revise our regulations on
the representation of parties to
implement section 205 of the Social
Security Protection Act of 2004 (SSPA)
and to make additional changes in these
regulations that relate to the changes
required by this legislation. The rules
also propose three technical changes in
our regulations on the representation of
parties.
DATES: To be sure that we consider your
comments, we must receive them by
June 13, 2005.
ADDRESSES: You may give us your
comments by: using our Internet site
facility (i.e., Social Security Online) at
https://policy.ssa.gov/pnpublic.nsf/
LawsRegs or the Federal eRulemaking
Portal at https://www.regulations.gov; email to regulations@ssa.gov; telefax to
(410) 966–2830; or letter to the
Commissioner of Social Security, P.O.
Box 17703, Baltimore, Maryland 21235–
7703. You may also deliver them to the
Office of Regulations, Social Security
Administration, 100 Altmeyer Building,
6401 Security Boulevard, Baltimore,
Maryland 21235–6401, between 8 a.m.
and 4:30 p.m. on regular business days.
Comments are posted on our Internet
site at https://policy.ssa.gov/
pnpublic.nsf/LawsRegs, or you may
inspect them on regular business days
by making arrangements with the
contact person shown in this preamble.
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Electronic Version
The electronic file of this document is
available on the date of publication in
the Federal Register at https://
www.gpoaccess.gov/fr/. It is
also available on the Internet site for
SSA (i.e., Social Security Online) at
https://policy.ssa.gov/pnpublic.nsf/
LawsRegs.
FOR FURTHER INFORMATION CONTACT:
Richard Bresnick, Social Insurance
Specialist, Office of Regulations, Social
Security Administration, 100 Altmeyer
Building, 6401 Security Boulevard,
Baltimore, MD 21235–6401, (410) 965–
1758 or TTY (410) 966–5609. For
information on eligibility or filing for
benefits, call our national toll-free
number, 1–800–772–1213 or TTY 1–
800–325–0778, or visit our Internet site,
Social Security Online, at https://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Who Is Permitted to Represent
Claimants Before SSA?
Section 206(a)(1) of the Social
Security Act (the Act) provides that
attorneys and non-attorneys may
represent claimants before SSA. Prior to
enactment of the SSPA, Public Law
108–203, on March 2, 2004, section
206(a)(1) specified that ‘‘[a]n attorney in
good standing who is admitted to
practice before the highest court of the
State, Territory, District, or insular
possession of his residence or before the
Supreme Court of the United States or
the inferior Federal courts’ is entitled to
represent claimants before SSA. Section
206(a)(1) also authorized SSA to
prescribe rules and regulations
governing recognition of individuals
other than attorneys.
Section 205 of the SSPA amended
section 206(a)(1) of the Act with respect
to the recognition and disqualification
of certain attorneys as claimants’
representatives. As amended, section
206(a)(1) provides that the
Commissioner of Social Security (the
Commissioner), after due notice and
opportunity for hearing, may refuse to
recognize as a representative, and may
disqualify a representative already
recognized, any attorney who has been
disbarred or suspended from any court
or bar to which he or she was previously
admitted to practice or who has been
disqualified from participating in or
appearing before any Federal program or
agency. Section 206(a)(1) as amended
further provides that the Commissioner
may also, after due notice and
opportunity for hearing, refuse to
recognize, and may disqualify, as a nonattorney representative, any attorney
who has been disbarred or suspended
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from any court or bar to which he or she
was previously admitted to practice.
Section 205 of the SSPA also
amended section 206(a)(1) of the Act
with respect to reinstatement of certain
individuals (whether or not they are
attorneys) who have been disqualified
or suspended from appearing before
SSA. Under the Act as amended, a
representative who has been
disqualified or suspended from
appearing before SSA as a result of
collecting or receiving a fee in excess of
the amount authorized shall be barred
from appearing before SSA as a
representative until full restitution is
made to the claimant and, thereafter,
may be considered for reinstatement
only under such rules as the
Commissioner may prescribe.
Proposed Changes
As amended, section 206(a)(1) of the
Act identifies certain specific bases
upon which, after notice and
opportunity for hearing, we may refuse
to recognize an attorney as a
representative or disqualify an attorney
whom we have already recognized as a
representative. We propose to
implement these statutory provisions by
revising our regulations at 20 CFR
404.1745 and 416.1545, which describe
the circumstances in which we may file
charges seeking to suspend or disqualify
an individual from acting in a
representational capacity before us.
Specifically, we propose to revise these
sections to expand the stated bases upon
which we may file such charges to
include those in which we have
evidence that a representative has been,
by reason of misconduct—
• Disbarred or suspended from any
court or bar to which he or she was
previously admitted to practice, or
• Disqualified from participating in or
appearing before any Federal program or
agency.
Sections 404.1745 and 416.1545 as a
whole pertain to our bringing of charges
that may seek either to suspend or to
disqualify a representative. As we
explain below in connection with
changes we are proposing in our
regulations dealing with the decisions
hearing officers make on charges
brought against representatives (20 CFR
404.1770 and 416.1570),
disqualification will be the sole sanction
available if the charges against a
representative are sustained because the
representative has been, by reasons of
misconduct, disbarred or suspended
from any court or bar to which he or she
was previously admitted to practice or
disqualified from participating in or
appearing before any Federal program or
agency.
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Sections 404.1745 and 416.1545, as
they currently exist and as they are
proposed for revision, apply with
respect to both attorney and nonattorney representatives. Under the
proposed regulations, we will have
authority to bring charges to disqualify
a non-attorney representative if we have
evidence that the representative has
been, by reason of misconduct—
• Disbarred or suspended from any
court or bar to which he or she was
previously admitted to practice, or
• Disqualified from participating in or
appearing before any Federal program or
agency.
As amended by the SSPA, section
206(a)(1) of the Act specifically provides
that, after providing due notice and an
opportunity for hearing, SSA ‘‘may
refuse to recognize, and may disqualify,
as a non-attorney representative any
attorney who has been disbarred or
suspended from any court or bar to
which he or she was previously
admitted to practice.’’ Thus, the Act
provides that disbarment or suspension
by a court or bar may be a basis for
disqualifying an individual from
representational functions before SSA
irrespective of whether the individual
seeks to represent individuals as an
attorney or non-attorney. Although it
provides that we may refuse to
recognize or disqualify an attorney who
has been disqualified from participating
in or appearing before a Federal
program or agency, the Act as amended
does not also state that we may refuse
to recognize a non-attorney (or former
attorney) who has been disqualified
from participating in or appearing
before any Federal program or agency.
We are proposing to make
disqualification from participating in or
appearing before any Federal program or
agency a basis for bringing charges to
disqualify a non-attorney in order to
make our rules, with respect to
recognition of non-attorneys, consistent
with our rules for attorneys. By making
this a basis for bringing charges against
non-attorneys as well as attorneys, we
can ensure that the additional
protections provided by the SSPA are
available for all claimants, regardless of
whether their representatives are
attorneys or non-attorneys.
We are proposing this rule regarding
non-attorney representatives under the
general authority of the Commissioner,
as set forth in section 206(a)(1) of the
Act, to prescribe rules and regulations
‘‘governing the recognition’’ of nonattorney representatives and to require
such representatives to ‘‘show that they
are of good character and in good
repute’’ and capable of providing
claimants valuable services. Under the
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proposed rule, if we determine, after
providing due notice and opportunity
for a hearing, that a non-attorney
individual has been disqualified from
participating in or appearing before a
Federal program or agency for reasons of
misconduct, we will disqualify the
individual as having failed to show that
he or she is of good character and in
good repute and will thereafter, absent
reinstatement in accordance with the
provisions of 20 CFR 404.1799 and
416.1599, refuse to recognize the
individual as a representative. The
effect of this rule is to require a nonattorney whom we charge with having
been disqualified from participating in
or appearing before a Federal program
or agency for reasons of misconduct to
show, in accordance with our rules at 20
CFR 404.1750ff. and 416.1550ff. on
hearing and deciding charges against
representatives, that he or she has not
been disqualified from participating in
or appearing before a Federal program
or agency for reasons of misconduct and
is thus, in that respect, of good character
and in good repute.
This rule codifies a practice we
currently apply under Program
Operations Manual System section GN
03970.011, which sets forth a nonexclusive list of circumstances in which
we may bring charges (under
§§ 404.1745 and 416.1545) to suspend
or disqualify a non-attorney from
practice before us for lack of good
character and reputation. We believe we
should codify that disqualification by a
Federal program or agency may be a
basis for bringing charges against a nonattorney representative because the Act
as amended by the SSPA is silent on
that issue, even though it provides that
we may bring charges against a nonattorney for disbarment or suspension
by a court or bar. Our codification of
this particular basis for bringing charges
based on a lack of good character and
reputation does not limit our discretion
to bring charges against a non-attorney
representative, as we do at present,
whenever we believe that we have
evidence that a non-attorney fails to
meet the qualification requirement
concerning good character and
reputation included in the provisions of
§§ 404.1705 and 416.1505 on ‘‘Who may
be your representative.’’
Under §§ 404.1745 and 416.1545 as
proposed for revision, we have
discretion in determining whether to
bring charges when we have evidence
that an individual has been disbarred,
suspended or disqualified by a court,
bar, Federal program or Federal agency.
One factor we will consider in
determining whether to bring charges is
whether the individual has been
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reinstated by the court, bar, Federal
program or Federal agency that
disbarred, suspended or disqualified the
individual. Reinstatement will not
necessarily preclude the bringing of
charges. Further, we may also bring
charges if the disbarment, suspension or
disqualification by a court, bar, Federal
program or agency became final prior to
the enactment of section 205 of the
SSPA.
Under the Act as amended by the
SSPA, we have discretionary authority
to refuse to permit an individual to
function as a representative before us
because that individual has been
disbarred, suspended or disqualified by
a court, bar or Federal agency. To
implement that authority, we propose to
revise §§ 404.1770 and 416.1570 to
explain that in deciding whether to
impose that sanction we will consider
the reasons for the disbarment,
suspension, or disqualification action of
the court, bar or Federal agency and will
not disqualify the individual from
acting as a representative before SSA if
the court, bar, or Federal agency action
was taken for reasons unrelated to
misconduct (e.g., solely for
administrative reasons such as failure to
pay dues or failure to complete
continuing legal education
requirements). Sections 404.1770 and
416.1570 as proposed for revision also
explain that this exception to
disqualification will not apply if the
administrative action was taken by the
court, bar or Federal program or agency
in lieu of disciplinary proceedings (e.g.,
the acceptance of a voluntary
resignation pending disciplinary
action), and that although we will
consider the reasons for the disbarment,
suspension, or disqualification action in
determining whether to disqualify an
individual from appearing before us as
a representative, we will not re-examine
or revise the factual or legal conclusions
that led to the disbarment, suspension
or disqualification action.
As proposed for revision, §§ 404.1770
and 416.1570 will also explain what we
mean by the terms ‘‘disqualified,’’
‘‘Federal program,’’ and ‘‘Federal
agency’’ for the purposes of deciding
whether an individual has been
disqualified from participating in or
appearing before any Federal program or
agency. For that purpose, ‘‘disqualified’’
will refer to any action that prohibits an
individual from participating in or
appearing before the program or agency,
regardless of how long the prohibition
lasts or the specific terminology used.
The program or agency need not use the
term ‘‘disqualified’’ to describe the
action. For example, an agency may use
analogous terms such as ‘‘suspend,’’
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‘‘decertify,’’ ‘‘exclude,’’ ‘‘expel,’’ or
‘‘debar’’ to describe the individual’s
disqualification from participating in
the program or the agency. For the
purposes of deciding whether an
individual has been disqualified from
participating in or appearing before any
Federal program or agency, ‘‘Federal
program’’ will refer to any program
established by an Act of Congress or
administered by a Federal agency and
‘‘Federal agency’’ will refer to any
authority of the executive branch of the
Government of the United States.
As previously noted, we also propose
to revise §§ 404.1770 and 416.1570 to
provide that disqualification will be the
only sanction that may be applied if
charges against a representative
(attorney or non-attorney) are sustained
because the representative has been, by
reason of misconduct, disbarred or
suspended from any court or bar to
which he or she was previously
admitted to practice or disqualified from
participating in or appearing before any
Federal program or agency. The Act, as
amended by the SSPA, states only that
we may ‘‘refuse to recognize’’ and,
where recognition has already occurred,
‘‘disqualify’’ an individual who has
been disbarred, suspended or
disqualified by a court, bar or Federal
program or agency. Under our rules on
reinstatement, a suspended
representative is automatically
reinstated at the end of the period of
suspension (20 CFR 404.1797 and
416.1597). By contrast, under
§§ 404.1799 and 416.1599 of our rules,
if an individual has been disqualified,
reinstatement can occur only if the
individual asks the Appeals Council of
our Office of Hearings and Appeals for
permission to serve as a representative
again and the Appeals Council decides
that it is reasonable to expect that the
individual will, in the future, act in
accordance with the provisions of
section 206(a) of the Act and our rules
and regulations. We cannot ensure that
reinstatement is warranted on that basis
in cases in which the sanction imposed
by us is a suspension. Based on the
above, we believe that disqualification
is the only appropriate sanction where
charges are sustained because we find
that a representative has been, by reason
of misconduct, disbarred, suspended or
disqualified by a court, bar or Federal
program or agency.
We also propose to revise §§ 404.1770
and 416.1570 to state that, if the charges
against the representative are sustained
because the representative has collected
or received, and retains, a fee for
representational services in excess of
the amount authorized, disqualification
will be the only sanction available. This
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change is intended to ensure that such
a representative is barred from
appearing before SSA until full
restitution has been made, as required
by the Act as amended by the SSPA.
The proposed rule recognizes that
restitution is required only where the
representative has not already made full
restitution at the time at which we
sustain charges of collecting or receiving
an unauthorized fee. The representative
‘‘retains’’ an unauthorized fee that has
been collected or received if full
restitution has not been made for any
reason. If a representative makes full
restitution before the charges against the
representative have been sustained, we
are not precluded from finding that the
representative has charged, collected, or
retained a fee in violation of
§§ 404.1740(c)(2) and/or 416.1540(c)(2),
and suspending or disqualifying that
representative from practice.
We propose to revise 20 CFR 404.1790
and 416.1590, which deal with
decisions made by the Appeals Council
where a party to the hearing requests
review of a hearing officer’s decision in
a sanction case, to conform these
sections to the changes proposed in
§§ 404.1770 and 416.1570 to limit the
sanction available to disqualification
where charges are sustained either
because the representative has been, by
reason of misconduct, disbarred or
suspended from any court or bar to
which he or she was previously
admitted to practice or disqualified from
participating in or appearing before any
Federal program or agency, or because
the representative has collected or
received, and retains, a fee in excess of
the amount authorized. As proposed for
revision, §§ 404.1790 and 416.1590 will
provide that the Appeals Council may
not modify a hearing officer’s decision
to impose a suspension, instead of a
disqualification, when disqualification
is the only sanction available under
§§ 404.1770 and 416.1570.
We also propose to revise our rules on
reinstatement in §§ 404.1799 and
416.1599 to provide that, if the
representative has been disqualified
because he or she was disbarred or
suspended from a court or bar, the
Appeals Council will grant
reinstatement to the individual as a
representative only if the individual not
only satisfies the Council with respect
to the required expectation of future
behavior, but also shows that he or she
has been admitted (or readmitted) to
and is in good standing with the court
or bar from which he or she had been
disbarred or suspended. This provision
ensures that an individual will not be
reinstated as a representative unless the
individual can satisfy the court or bar
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that disbarred or suspended the
individual that he or she is fit to act in
a representational capacity again.
We also propose to include in
§§ 404.1799 and 416.1599 a similar rule
for reinstatement of a representative
who has been disqualified because he or
she was disqualified from participating
in or appearing before any Federal
program or agency. This rule will
provide that such an individual must
not only satisfy the Appeals Council
with respect to the required expectation
of future behavior, but also show that he
or she is once again qualified to
participate in or appear before that
Federal program or agency.
We propose further to revise
§§ 404.1799 and 416.1599 to state that,
if a representative has been disqualified
as a result of collecting or receiving, and
retaining, a fee for representational
services in excess of the amount
authorized, full restitution of the excess
fee must be made before the person may
be considered for reinstatement. This
proposed change will implement the
provision of the SSPA requiring us to
bar from appearing before us, until full
restitution is made, a representative
who has been disqualified or suspended
from appearing before us as a result of
collecting or receiving a fee in excess of
the amount authorized.
Other Proposed Changes
We propose to make a technical
change to 20 CFR 404.1750(e)(2) and
416.1550(e)(2), which explain how a
representative must answer a notice
containing a statement of charges. Our
current rules direct that the answer be
filed with Special Counsel Staff in
SSA’s Office of Hearings and Appeals.
This component no longer exists. (See
68 FR 59231 and 68 FR 61240.) The
notice containing a statement of charges
provides specific instructions on how
and where to file an answer. Therefore,
we propose to revise this rule to reflect
that the representative must file the
answer with SSA, at the address
specified in the notice, within the 30day time period.
We also propose to make a technical
change to 20 CFR 404.1755 and
416.1555 to specify that the Deputy
Commissioner for Disability and Income
Security Programs, or his or her
designee is, as the official who decides
to initiate a representative sanction
proceeding, also the official who may
withdraw charges against a
representative. This change is needed
because questions have arisen about
who in the agency has authority to
withdraw charges.
Finally, we also propose to make a
technical change to 20 CFR 404.1765
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and 416.1565 to state that the Office of
the General Counsel will represent the
Deputy Commissioner for Disability and
Income Security Programs in all
representative sanction proceedings,
including those involving a request for
reinstatement by a suspended or
disqualified individual. This
amendment is necessary because the
former Special Counsel Staff previously
represented the Deputy Commissioner.
(See 56 FR 24129.)
Disability Insurance; 96.002, Social SecurityRetirement Insurance; 96.004, Social
Security-Survivors Insurance; 96.006,
Supplemental Security Income.)
Clarity of These Proposed Rules
Executive Order 12866, as amended
by Executive Order 13258, requires each
agency to write all rules in plain
language. In addition to your
substantive comments on these
proposed rules, we invite your
comments on how to make these rules
easier to understand. For example:
• Have we organized the material to
suit your needs?
• Are the requirements in the rules
clearly stated?
• Do the rules contain technical
language or jargon that isn’t clear?
• Would a different format (grouping
and order of sections, use of headings,
paragraphing) make the rules easier to
understand?
• Would more (but shorter) sections
be better?
• What else could we do to make the
rules easier to understand?
20 CFR Part 416
Executive Order 12866
We have consulted with the Office of
Management and Budget (OMB) and
determined that these rules meet the
requirements for a significant regulatory
action under Executive Order 12866, as
amended by Executive Order 13258.
Thus, they were subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed
regulations will not have a significant
economic impact on a substantial
number of small entities because they
affect only individuals. Therefore, a
regulatory flexibility analysis, as
provided in the Regulatory Flexibility
Act, as amended, is not required.
Paperwork Reduction Act
The proposed rules contain
information collection activities at 20
CFR 404.1750(e)(2) and 416.1550(e)(2).
However, the activities are exempt
under 44 U.S.C. 3518(c) from the
clearance requirements of 44 U.S.C.
3507 as amended by section 2 of Public
Law 104–13 (May 22, 1995), the
Paperwork Reduction Act of 1995.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social Security-
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20 CFR Part 404
Administrative practice and
procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability
Insurance, Reporting and recordkeeping
requirements, Social Security.
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Public assistance programs,
Reporting and recordkeeping
requirements, Supplemental Security
Income.
Dated: March 8, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
For the reasons set out in the
preamble, we propose to amend subpart
R of part 404 and subpart O of part 416
of chapter III of title 20 of the Code of
Federal Regulations as set forth below:
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950– )
Subpart R—[Amended]
1. The authority citation for subpart R
of part 404 continues to read as follows:
Regulatory Procedures
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List of Subjects
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. Amend § 404.1745 by removing the
word ‘‘or’’ at the end of paragraph (b),
changing the period to a semicolon at
the end of paragraph (c), and adding
new paragraphs (d) and (e) to read as
follows:
§ 404.1745 Violation of our requirements,
rules, or standards.
*
*
*
*
*
(d) Has been, by reason of
misconduct, disbarred or suspended
from any bar or court to which he or she
was previously admitted to practice (see
§ 404.1770(a)); or
(e) Has been, by reason of misconduct,
disqualified from participating in or
appearing before any Federal program or
agency (see § 404.1770(a)).
3. Amend § 404.1750 by revising
paragraph (e)(2) to read as follows:
§ 404.1750 Notice of charges against a
representative.
*
*
*
*
*
(e) * * *
(2) File the answer with the Social
Security Administration, at the address
E:\FR\FM\13APP1.SGM
13APP1
Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Proposed Rules
specified on the notice, within the 30day time period.
*
*
*
*
*
4. Amend § 404.1755 by revising the
first sentence to read as follows:
§ 404.1755 Withdrawing charges against a
representative.
The Deputy Commissioner for
Disability and Income Security
Programs (or other official the
Commissioner may designate), or his or
her designee, may withdraw charges
against a representative. * * *
5. Amend § 404.1765(l) by adding a
second sentence, to read as follows:
§ 404.1765
Hearing on charges.
*
*
*
*
*
(l) Representation. * * * The Deputy
Commissioner for Disability and Income
Security Programs (or other official the
Commissioner may designate), or his or
her designee, will be represented by one
or more attorneys from the Office of the
General Counsel.
*
*
*
*
*
6. Amend § 404.1770 by redesignating
existing paragraphs (a)(2) and (a)(3) as
(a)(3) and (a)(4), by adding new
paragraph (a)(2), and revising
redesignated paragraph (a)(3)(ii), to read
as follows:
§ 404.1770
Decision by hearing officer.
(a) * * *
(2) In deciding whether an individual
has been, by reason of misconduct,
disbarred or suspended by a court or
bar, or disqualified from participating in
or appearing before any Federal program
or agency, the hearing officer will
consider the reasons for the disbarment,
suspension, or disqualification action. If
the action was taken for solely
administrative reasons (e.g., failure to
pay dues or to complete continuing
legal education requirements), that will
not disqualify the individual from
acting as a representative before SSA.
However, this exception to
disqualification does not apply if the
administrative action was taken in lieu
of disciplinary proceedings (e.g.,
acceptance of a voluntary resignation
pending disciplinary action). Although
the hearing officer will consider
whether the disbarment, suspension, or
disqualification action is based on
misconduct when deciding whether an
individual should be disqualified from
acting as a representative before us, the
hearing officer will not re-examine or
revise the factual or legal conclusions
that led to the disbarment, suspension
or disqualification. For purposes of
determining whether an individual has
been, by reason of misconduct,
disqualified from participating in or
VerDate jul<14>2003
15:00 Apr 12, 2005
Jkt 205001
19365
appearing before any Federal program or
agency—
(i) Disqualified refers to any action
that prohibits an individual from
participating in or appearing before a
Federal program or agency, regardless of
how long the prohibition lasts or the
specific terminology used.
(ii) Federal program refers to any
program established by an Act of
Congress or administered by a Federal
agency.
(iii) Federal agency refers to any
authority of the executive branch of the
Government of the United States.
(3) * * *
(ii) Disqualify the representative from
acting as a representative in dealings
with us until he or she may be
reinstated under § 404.1799.
Disqualification is the sole sanction
available if the charges have been
sustained because the representative has
been disbarred or suspended from any
court or bar to which he or she was
previously admitted to practice or
disqualified from participating in or
appearing before any Federal program or
agency, or because the representative
has collected or received, and retains, a
fee for representational services in
excess of the amount authorized.
*
*
*
*
*
7. Amend § 404.1790 by revising
paragraph (b) to read as follows:
Appeals Council will grant a request for
reinstatement as a representative only if
the criterion in paragraph (d)(1) of this
section is met and the disqualified
person shows that he or she has been
admitted (or readmitted) to and is in
good standing with the court or bar from
which he or she had been disbarred or
suspended.
(3) If a person was disqualified
because he or she had been disqualified
from participating in or appearing
before a Federal program or agency, the
Appeals Council will grant the request
for reinstatement only if the criterion in
paragraph (d)(1) of this section is met
and the disqualified person shows that
he or she is now qualified to participate
in or appear before that Federal program
or agency.
(4) If the person was disqualified as a
result of collecting or receiving, and
retaining, a fee for representational
services in excess of the amount
authorized, the Appeals Council will
grant the request only if the criterion in
paragraph (d)(1) of this section is met
and the disqualified person shows that
full restitution has been made.
*
*
*
*
*
§ 404.1790
9. The authority citation for subpart O
of part 416 continues to read as follows:
Appeals Council’s decision.
*
*
*
*
*
(b) The Appeals Council, in changing
a hearing officer’s decision to suspend
a representative for a specified period,
shall in no event reduce the period of
suspension to less than 1 year. In
modifying a hearing officer’s decision to
disqualify a representative, the Appeals
Council shall in no event impose a
period of suspension of less than 1 year.
Further, the Appeals Council shall in no
event impose a suspension when
disqualification is the sole sanction
available in accordance with
§ 404.1770(a)(3)(ii).
*
*
*
*
*
8. Amend § 404.1799 by revising
paragraph (d) to read as follows:
§ 404.1799 Reinstatement after
suspension or disqualification—period of
suspension not expired.
*
*
*
*
*
(d)(1) The Appeals Council shall not
grant the request unless it is reasonably
satisfied that the person will in the
future act according to the provisions of
section 206(a) of the Act, and to our
rules and regulations.
(2) If a person was disqualified
because he or she had been disbarred or
suspended from a court or bar, the
PO 00000
Frm 00026
Fmt 4702
Sfmt 4702
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Subpart O—[Amended]
Authority: Secs. 702(a)(5) and 1631(d) of
the Social Security Act (42 U.S.C. 902(a)(5)
and 1383(d)).
10. Amend § 416.1545 by removing
the word ‘‘or’’ at the end of paragraph
(b), changing the period to a semicolon
at the end of paragraph (c), and adding
new paragraphs (d) and (e) to read as
follows:
§ 416.1545 Violation of our requirements,
rules, or standards.
*
*
*
*
*
(d) Has been, by reason of
misconduct, disbarred or suspended
from any bar or court to which he or she
was previously admitted to practice (see
§ 416.1570(a)); or
(e) Has been, by reason of misconduct,
disqualified from participating in or
appearing before any Federal program or
agency (see § 416.1570(a)).
11. Amend § 416.1550 by revising
paragraph (e)(2) to read as follows:
§ 416.1550 Notice of charges against a
representative.
*
*
*
*
*
(e) * * *
(2) File the answer with the Social
Security Administration, at the address
E:\FR\FM\13APP1.SGM
13APP1
19366
Federal Register / Vol. 70, No. 70 / Wednesday, April 13, 2005 / Proposed Rules
specified on the notice, within the 30day time period.
*
*
*
*
*
12. Amend § 416.1555 by revising the
first sentence to read as follows:
§ 416.1555 Withdrawing charges against a
representative.
The Deputy Commissioner for
Disability and Income Security
Programs (or other official the
Commissioner may designate), or his or
her designee, may withdraw charges
against a representative. * * *
13. Amend § 416.1565(l) by adding a
second sentence, to read as follows:
§ 416.1565
Hearing on charges.
*
*
*
*
*
(l) Representation. * * * The Deputy
Commissioner for Disability and Income
Security Programs (or other official the
Commissioner may designate), or his or
her designee, will be represented by one
or more attorneys from the Office of the
General Counsel.
*
*
*
*
*
14. Amend § 416.1570 by
redesignating existing paragraphs (a)(2)
and (a)(3) as (a)(3) and (a)(4), by adding
new paragraph (a)(2), and revising
redesignated paragraph (a)(3)(ii), to read
as follows:
§ 416.1570
Decision by hearing officer.
(a) * * *
(2) In deciding whether an individual
has been, by reason of misconduct,
disbarred or suspended by a court or
bar, or disqualified from participating in
or appearing before any Federal program
or agency, the hearing officer will
consider the reasons for the disbarment,
suspension, or disqualification action. If
the action was taken for solely
administrative reasons (e.g., failure to
pay dues or to complete continuing
legal education requirements), that will
not disqualify the individual from
acting as a representative before SSA.
However, this exception to
disqualification does not apply if the
administrative action was taken in lieu
of disciplinary proceedings (e.g.,
acceptance of a voluntary resignation
pending disciplinary action). Although
the hearing officer will consider
whether the disbarment, suspension, or
disqualification action is based on
misconduct when deciding whether an
individual should be disqualified from
acting as a representative before us, the
hearing officer will not re-examine or
revise the factual or legal conclusions
that led to the disbarment, suspension
or disqualification. For purposes of
determining whether an individual has
been, by reason of misconduct,
disqualified from participating in or
VerDate jul<14>2003
15:00 Apr 12, 2005
Jkt 205001
appearing before any Federal program or
agency—
(i) Disqualified refers to any action
that prohibits an individual from
participating in or appearing before a
Federal program or agency, regardless of
how long the prohibition lasts or the
specific terminology used.
(ii) Federal program refers to any
program established by an Act of
Congress or administered by a Federal
agency.
(iii) Federal agency refers to any
authority of the executive branch of the
Government of the United States.
(3) * * *
(ii) Disqualify the representative from
acting as a representative in dealings
with us until he or she may be
reinstated under § 416.1599.
Disqualification is the sole sanction
available if the charges have been
sustained because the representative has
been disbarred or suspended from any
court or bar to which he or she was
previously admitted to practice or
disqualified from participating in or
appearing before any Federal program or
agency, or because the representative
has collected or received, and retains, a
fee for representational services in
excess of the amount authorized.
*
*
*
*
*
15. Amend § 416.1590 by revising
paragraph (b) to read as follows:
§ 416.1590
*
*
*
*
(b) The Appeals Council, in changing
a hearing officer’s decision to suspend
a representative for a specified period,
shall in no event reduce the period of
suspension to less than 1 year. In
modifying a hearing officer’s decision to
disqualify a representative, the Appeals
Council shall in no event impose a
period of suspension of less than 1 year.
Further, the Appeals Council shall in no
event impose a suspension when
disqualification is the sole sanction
available in accordance with
§ 416.1570(a)(3)(ii).
*
*
*
*
*
16. Amend § 416.1599 by revising
paragraph (d) to read as follows:
§ 416.1599 Reinstatement after
suspension or disqualification —period of
suspension not expired.
*
*
*
*
*
(d)(1) The Appeals Council shall not
grant the request unless it is reasonably
satisfied that the person will in the
future act according to the provisions of
section 206(a) of the Act, and to our
rules and regulations.
(2) If a person was disqualified
because he or she had been disbarred or
suspended from a court or bar, the
Frm 00027
[FR Doc. 05–7353 Filed 4–12–05; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF THE TREASURY
Appeals Council’s decision.
*
PO 00000
Appeals Council will grant a request for
reinstatement as a representative only if
the criterion in paragraph (d)(1) of this
section is met and the disqualified
person shows that he or she has been
admitted (or readmitted) to and is in
good standing with the court or bar from
which he or she had been disbarred or
suspended.
(3) If a person was disqualified
because he or she had been disqualified
from participating in or appearing
before a Federal program or agency, the
Appeals Council will grant the request
for reinstatement only if the criterion in
paragraph (d)(1) of this section is met
and the disqualified person shows that
he or she is now qualified to participate
in or appear before that Federal program
or agency.
(4) If the person was disqualified as a
result of collecting or receiving, and
retaining, a fee for representational
services in excess of the amount
authorized, the Appeals Council will
grant the request only if the criterion in
paragraph (d)(1) of this section is met
and the disqualified person shows that
full restitution has been made.
*
*
*
*
*
Fmt 4702
Sfmt 4702
31 CFR Part 29
RIN 1505–AB55
Federal Benefit Payments Under
Certain District of Columbia
Retirement Plans
Departmental Offices, Treasury.
Notice of proposed rulemaking.
AGENCY:
ACTION:
SUMMARY: The Department of the
Treasury proposes to amend its DC
Pensions rules promulgated pursuant to
the Balanced Budget Act of 1997, as
amended (the Act). The Act was
effective on October 1, 1997. The Act
assigns to the Secretary of the Treasury
responsibility for payment of benefits
based on service accrued as of June 30,
1997, under the retirement plans for
District of Columbia teachers and police
officers and firefighters, and payment of
benefits under the retirement plan for
District of Columbia judges regardless of
when service accrued. The amended
regulations will implement the
Secretary’s authority under the Act to
ensure the accuracy of payments made
to annuitants before the effective date of
the Act. The amended regulations will
also reflect changes made in the District
of Columbia Retirement Protection
E:\FR\FM\13APP1.SGM
13APP1
]]>Agencies
[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Proposed Rules]
[Pages 19361-19366]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7353]
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulation Nos. 4 and 16]
RIN 0960-AG15
Representation of Parties; Recognition, Disqualification, and
Reinstatement of Representative
AGENCY: Social Security Administration.
ACTION: Proposed rules.
-----------------------------------------------------------------------
SUMMARY: We propose to revise our regulations to identify additional
bases upon which we may bring charges to disqualify an individual from
acting as a representative before the Social Security Administration
(SSA), and to set forth the conditions under which we will reinstate an
individual whom we have disqualified as a representative because the
individual collected or received, and retains, a fee in excess of the
amount we authorized. These proposed rules revise our regulations on
the representation of parties to implement section 205 of the Social
Security Protection Act of 2004 (SSPA) and to make additional changes
in these regulations that relate to the changes required by this
legislation. The rules also propose three technical changes in our
regulations on the representation of parties.
DATES: To be sure that we consider your comments, we must receive them
by June 13, 2005.
ADDRESSES: You may give us your comments by: using our Internet site
facility (i.e., Social Security Online) at https://policy.ssa.gov/
pnpublic.nsf/LawsRegs or the Federal eRulemaking Portal at https://
www.regulations.gov; e-mail to regulations@ssa.gov; telefax to (410)
966-2830; or letter to the Commissioner of Social Security, P.O. Box
17703, Baltimore, Maryland 21235-7703. You may also deliver them to the
Office of Regulations, Social Security Administration, 100 Altmeyer
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401,
between 8 a.m. and 4:30 p.m. on regular business days. Comments are
posted on our Internet site at https://policy.ssa.gov/pnpublic.nsf/
LawsRegs, or you may inspect them on regular business days by making
arrangements with the contact person shown in this preamble.
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at https://www.gpoaccess.gov/fr/
index.html. It is also available on the Internet site for SSA (i.e.,
Social Security Online) at https://policy.ssa.gov/pnpublic.nsf/LawsRegs.
FOR FURTHER INFORMATION CONTACT: Richard Bresnick, Social Insurance
Specialist, Office of Regulations, Social Security Administration, 100
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410) 965-1758 or TTY (410) 966-5609. For information on eligibility or
filing for benefits, call our national toll-free number, 1-800-772-1213
or TTY 1-800-325-0778, or visit our Internet site, Social Security
Online, at https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Who Is Permitted to Represent Claimants Before SSA?
Section 206(a)(1) of the Social Security Act (the Act) provides
that attorneys and non-attorneys may represent claimants before SSA.
Prior to enactment of the SSPA, Public Law 108-203, on March 2, 2004,
section 206(a)(1) specified that ``[a]n attorney in good standing who
is admitted to practice before the highest court of the State,
Territory, District, or insular possession of his residence or before
the Supreme Court of the United States or the inferior Federal courts'
is entitled to represent claimants before SSA. Section 206(a)(1) also
authorized SSA to prescribe rules and regulations governing recognition
of individuals other than attorneys.
Section 205 of the SSPA amended section 206(a)(1) of the Act with
respect to the recognition and disqualification of certain attorneys as
claimants' representatives. As amended, section 206(a)(1) provides that
the Commissioner of Social Security (the Commissioner), after due
notice and opportunity for hearing, may refuse to recognize as a
representative, and may disqualify a representative already recognized,
any attorney who has been disbarred or suspended from any court or bar
to which he or she was previously admitted to practice or who has been
disqualified from participating in or appearing before any Federal
program or agency. Section 206(a)(1) as amended further provides that
the Commissioner may also, after due notice and opportunity for
hearing, refuse to recognize, and may disqualify, as a non-attorney
representative, any attorney who has been disbarred or suspended
[[Page 19362]]
from any court or bar to which he or she was previously admitted to
practice.
Section 205 of the SSPA also amended section 206(a)(1) of the Act
with respect to reinstatement of certain individuals (whether or not
they are attorneys) who have been disqualified or suspended from
appearing before SSA. Under the Act as amended, a representative who
has been disqualified or suspended from appearing before SSA as a
result of collecting or receiving a fee in excess of the amount
authorized shall be barred from appearing before SSA as a
representative until full restitution is made to the claimant and,
thereafter, may be considered for reinstatement only under such rules
as the Commissioner may prescribe.
Proposed Changes
As amended, section 206(a)(1) of the Act identifies certain
specific bases upon which, after notice and opportunity for hearing, we
may refuse to recognize an attorney as a representative or disqualify
an attorney whom we have already recognized as a representative. We
propose to implement these statutory provisions by revising our
regulations at 20 CFR 404.1745 and 416.1545, which describe the
circumstances in which we may file charges seeking to suspend or
disqualify an individual from acting in a representational capacity
before us. Specifically, we propose to revise these sections to expand
the stated bases upon which we may file such charges to include those
in which we have evidence that a representative has been, by reason of
misconduct--
Disbarred or suspended from any court or bar to which he
or she was previously admitted to practice, or
Disqualified from participating in or appearing before any
Federal program or agency.
Sections 404.1745 and 416.1545 as a whole pertain to our bringing
of charges that may seek either to suspend or to disqualify a
representative. As we explain below in connection with changes we are
proposing in our regulations dealing with the decisions hearing
officers make on charges brought against representatives (20 CFR
404.1770 and 416.1570), disqualification will be the sole sanction
available if the charges against a representative are sustained because
the representative has been, by reasons of misconduct, disbarred or
suspended from any court or bar to which he or she was previously
admitted to practice or disqualified from participating in or appearing
before any Federal program or agency.
Sections 404.1745 and 416.1545, as they currently exist and as they
are proposed for revision, apply with respect to both attorney and non-
attorney representatives. Under the proposed regulations, we will have
authority to bring charges to disqualify a non-attorney representative
if we have evidence that the representative has been, by reason of
misconduct--
Disbarred or suspended from any court or bar to which he
or she was previously admitted to practice, or
Disqualified from participating in or appearing before any
Federal program or agency.
As amended by the SSPA, section 206(a)(1) of the Act specifically
provides that, after providing due notice and an opportunity for
hearing, SSA ``may refuse to recognize, and may disqualify, as a non-
attorney representative any attorney who has been disbarred or
suspended from any court or bar to which he or she was previously
admitted to practice.'' Thus, the Act provides that disbarment or
suspension by a court or bar may be a basis for disqualifying an
individual from representational functions before SSA irrespective of
whether the individual seeks to represent individuals as an attorney or
non-attorney. Although it provides that we may refuse to recognize or
disqualify an attorney who has been disqualified from participating in
or appearing before a Federal program or agency, the Act as amended
does not also state that we may refuse to recognize a non-attorney (or
former attorney) who has been disqualified from participating in or
appearing before any Federal program or agency. We are proposing to
make disqualification from participating in or appearing before any
Federal program or agency a basis for bringing charges to disqualify a
non-attorney in order to make our rules, with respect to recognition of
non-attorneys, consistent with our rules for attorneys. By making this
a basis for bringing charges against non-attorneys as well as
attorneys, we can ensure that the additional protections provided by
the SSPA are available for all claimants, regardless of whether their
representatives are attorneys or non-attorneys.
We are proposing this rule regarding non-attorney representatives
under the general authority of the Commissioner, as set forth in
section 206(a)(1) of the Act, to prescribe rules and regulations
``governing the recognition'' of non-attorney representatives and to
require such representatives to ``show that they are of good character
and in good repute'' and capable of providing claimants valuable
services. Under the proposed rule, if we determine, after providing due
notice and opportunity for a hearing, that a non-attorney individual
has been disqualified from participating in or appearing before a
Federal program or agency for reasons of misconduct, we will disqualify
the individual as having failed to show that he or she is of good
character and in good repute and will thereafter, absent reinstatement
in accordance with the provisions of 20 CFR 404.1799 and 416.1599,
refuse to recognize the individual as a representative. The effect of
this rule is to require a non-attorney whom we charge with having been
disqualified from participating in or appearing before a Federal
program or agency for reasons of misconduct to show, in accordance with
our rules at 20 CFR 404.1750ff. and 416.1550ff. on hearing and deciding
charges against representatives, that he or she has not been
disqualified from participating in or appearing before a Federal
program or agency for reasons of misconduct and is thus, in that
respect, of good character and in good repute.
This rule codifies a practice we currently apply under Program
Operations Manual System section GN 03970.011, which sets forth a non-
exclusive list of circumstances in which we may bring charges (under
Sec. Sec. 404.1745 and 416.1545) to suspend or disqualify a non-
attorney from practice before us for lack of good character and
reputation. We believe we should codify that disqualification by a
Federal program or agency may be a basis for bringing charges against a
non-attorney representative because the Act as amended by the SSPA is
silent on that issue, even though it provides that we may bring charges
against a non-attorney for disbarment or suspension by a court or bar.
Our codification of this particular basis for bringing charges based on
a lack of good character and reputation does not limit our discretion
to bring charges against a non-attorney representative, as we do at
present, whenever we believe that we have evidence that a non-attorney
fails to meet the qualification requirement concerning good character
and reputation included in the provisions of Sec. Sec. 404.1705 and
416.1505 on ``Who may be your representative.''
Under Sec. Sec. 404.1745 and 416.1545 as proposed for revision, we
have discretion in determining whether to bring charges when we have
evidence that an individual has been disbarred, suspended or
disqualified by a court, bar, Federal program or Federal agency. One
factor we will consider in determining whether to bring charges is
whether the individual has been
[[Page 19363]]
reinstated by the court, bar, Federal program or Federal agency that
disbarred, suspended or disqualified the individual. Reinstatement will
not necessarily preclude the bringing of charges. Further, we may also
bring charges if the disbarment, suspension or disqualification by a
court, bar, Federal program or agency became final prior to the
enactment of section 205 of the SSPA.
Under the Act as amended by the SSPA, we have discretionary
authority to refuse to permit an individual to function as a
representative before us because that individual has been disbarred,
suspended or disqualified by a court, bar or Federal agency. To
implement that authority, we propose to revise Sec. Sec. 404.1770 and
416.1570 to explain that in deciding whether to impose that sanction we
will consider the reasons for the disbarment, suspension, or
disqualification action of the court, bar or Federal agency and will
not disqualify the individual from acting as a representative before
SSA if the court, bar, or Federal agency action was taken for reasons
unrelated to misconduct (e.g., solely for administrative reasons such
as failure to pay dues or failure to complete continuing legal
education requirements). Sections 404.1770 and 416.1570 as proposed for
revision also explain that this exception to disqualification will not
apply if the administrative action was taken by the court, bar or
Federal program or agency in lieu of disciplinary proceedings (e.g.,
the acceptance of a voluntary resignation pending disciplinary action),
and that although we will consider the reasons for the disbarment,
suspension, or disqualification action in determining whether to
disqualify an individual from appearing before us as a representative,
we will not re-examine or revise the factual or legal conclusions that
led to the disbarment, suspension or disqualification action.
As proposed for revision, Sec. Sec. 404.1770 and 416.1570 will
also explain what we mean by the terms ``disqualified,'' ``Federal
program,'' and ``Federal agency'' for the purposes of deciding whether
an individual has been disqualified from participating in or appearing
before any Federal program or agency. For that purpose,
``disqualified'' will refer to any action that prohibits an individual
from participating in or appearing before the program or agency,
regardless of how long the prohibition lasts or the specific
terminology used. The program or agency need not use the term
``disqualified'' to describe the action. For example, an agency may use
analogous terms such as ``suspend,'' ``decertify,'' ``exclude,''
``expel,'' or ``debar'' to describe the individual's disqualification
from participating in the program or the agency. For the purposes of
deciding whether an individual has been disqualified from participating
in or appearing before any Federal program or agency, ``Federal
program'' will refer to any program established by an Act of Congress
or administered by a Federal agency and ``Federal agency'' will refer
to any authority of the executive branch of the Government of the
United States.
As previously noted, we also propose to revise Sec. Sec. 404.1770
and 416.1570 to provide that disqualification will be the only sanction
that may be applied if charges against a representative (attorney or
non-attorney) are sustained because the representative has been, by
reason of misconduct, disbarred or suspended from any court or bar to
which he or she was previously admitted to practice or disqualified
from participating in or appearing before any Federal program or
agency. The Act, as amended by the SSPA, states only that we may
``refuse to recognize'' and, where recognition has already occurred,
``disqualify'' an individual who has been disbarred, suspended or
disqualified by a court, bar or Federal program or agency. Under our
rules on reinstatement, a suspended representative is automatically
reinstated at the end of the period of suspension (20 CFR 404.1797 and
416.1597). By contrast, under Sec. Sec. 404.1799 and 416.1599 of our
rules, if an individual has been disqualified, reinstatement can occur
only if the individual asks the Appeals Council of our Office of
Hearings and Appeals for permission to serve as a representative again
and the Appeals Council decides that it is reasonable to expect that
the individual will, in the future, act in accordance with the
provisions of section 206(a) of the Act and our rules and regulations.
We cannot ensure that reinstatement is warranted on that basis in cases
in which the sanction imposed by us is a suspension. Based on the
above, we believe that disqualification is the only appropriate
sanction where charges are sustained because we find that a
representative has been, by reason of misconduct, disbarred, suspended
or disqualified by a court, bar or Federal program or agency.
We also propose to revise Sec. Sec. 404.1770 and 416.1570 to state
that, if the charges against the representative are sustained because
the representative has collected or received, and retains, a fee for
representational services in excess of the amount authorized,
disqualification will be the only sanction available. This change is
intended to ensure that such a representative is barred from appearing
before SSA until full restitution has been made, as required by the Act
as amended by the SSPA. The proposed rule recognizes that restitution
is required only where the representative has not already made full
restitution at the time at which we sustain charges of collecting or
receiving an unauthorized fee. The representative ``retains'' an
unauthorized fee that has been collected or received if full
restitution has not been made for any reason. If a representative makes
full restitution before the charges against the representative have
been sustained, we are not precluded from finding that the
representative has charged, collected, or retained a fee in violation
of Sec. Sec. 404.1740(c)(2) and/or 416.1540(c)(2), and suspending or
disqualifying that representative from practice.
We propose to revise 20 CFR 404.1790 and 416.1590, which deal with
decisions made by the Appeals Council where a party to the hearing
requests review of a hearing officer's decision in a sanction case, to
conform these sections to the changes proposed in Sec. Sec. 404.1770
and 416.1570 to limit the sanction available to disqualification where
charges are sustained either because the representative has been, by
reason of misconduct, disbarred or suspended from any court or bar to
which he or she was previously admitted to practice or disqualified
from participating in or appearing before any Federal program or
agency, or because the representative has collected or received, and
retains, a fee in excess of the amount authorized. As proposed for
revision, Sec. Sec. 404.1790 and 416.1590 will provide that the
Appeals Council may not modify a hearing officer's decision to impose a
suspension, instead of a disqualification, when disqualification is the
only sanction available under Sec. Sec. 404.1770 and 416.1570.
We also propose to revise our rules on reinstatement in Sec. Sec.
404.1799 and 416.1599 to provide that, if the representative has been
disqualified because he or she was disbarred or suspended from a court
or bar, the Appeals Council will grant reinstatement to the individual
as a representative only if the individual not only satisfies the
Council with respect to the required expectation of future behavior,
but also shows that he or she has been admitted (or readmitted) to and
is in good standing with the court or bar from which he or she had been
disbarred or suspended. This provision ensures that an individual will
not be reinstated as a representative unless the individual can satisfy
the court or bar
[[Page 19364]]
that disbarred or suspended the individual that he or she is fit to act
in a representational capacity again.
We also propose to include in Sec. Sec. 404.1799 and 416.1599 a
similar rule for reinstatement of a representative who has been
disqualified because he or she was disqualified from participating in
or appearing before any Federal program or agency. This rule will
provide that such an individual must not only satisfy the Appeals
Council with respect to the required expectation of future behavior,
but also show that he or she is once again qualified to participate in
or appear before that Federal program or agency.
We propose further to revise Sec. Sec. 404.1799 and 416.1599 to
state that, if a representative has been disqualified as a result of
collecting or receiving, and retaining, a fee for representational
services in excess of the amount authorized, full restitution of the
excess fee must be made before the person may be considered for
reinstatement. This proposed change will implement the provision of the
SSPA requiring us to bar from appearing before us, until full
restitution is made, a representative who has been disqualified or
suspended from appearing before us as a result of collecting or
receiving a fee in excess of the amount authorized.
Other Proposed Changes
We propose to make a technical change to 20 CFR 404.1750(e)(2) and
416.1550(e)(2), which explain how a representative must answer a notice
containing a statement of charges. Our current rules direct that the
answer be filed with Special Counsel Staff in SSA's Office of Hearings
and Appeals. This component no longer exists. (See 68 FR 59231 and 68
FR 61240.) The notice containing a statement of charges provides
specific instructions on how and where to file an answer. Therefore, we
propose to revise this rule to reflect that the representative must
file the answer with SSA, at the address specified in the notice,
within the 30-day time period.
We also propose to make a technical change to 20 CFR 404.1755 and
416.1555 to specify that the Deputy Commissioner for Disability and
Income Security Programs, or his or her designee is, as the official
who decides to initiate a representative sanction proceeding, also the
official who may withdraw charges against a representative. This change
is needed because questions have arisen about who in the agency has
authority to withdraw charges.
Finally, we also propose to make a technical change to 20 CFR
404.1765 and 416.1565 to state that the Office of the General Counsel
will represent the Deputy Commissioner for Disability and Income
Security Programs in all representative sanction proceedings, including
those involving a request for reinstatement by a suspended or
disqualified individual. This amendment is necessary because the former
Special Counsel Staff previously represented the Deputy Commissioner.
(See 56 FR 24129.)
Clarity of These Proposed Rules
Executive Order 12866, as amended by Executive Order 13258,
requires each agency to write all rules in plain language. In addition
to your substantive comments on these proposed rules, we invite your
comments on how to make these rules easier to understand. For example:
Have we organized the material to suit your needs?
Are the requirements in the rules clearly stated?
Do the rules contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rules easier to understand?
Would more (but shorter) sections be better?
What else could we do to make the rules easier to
understand?
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules meet the requirements for a significant
regulatory action under Executive Order 12866, as amended by Executive
Order 13258. Thus, they were subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed regulations will not have a
significant economic impact on a substantial number of small entities
because they affect only individuals. Therefore, a regulatory
flexibility analysis, as provided in the Regulatory Flexibility Act, as
amended, is not required.
Paperwork Reduction Act
The proposed rules contain information collection activities at 20
CFR 404.1750(e)(2) and 416.1550(e)(2). However, the activities are
exempt under 44 U.S.C. 3518(c) from the clearance requirements of 44
U.S.C. 3507 as amended by section 2 of Public Law 104-13 (May 22,
1995), the Paperwork Reduction Act of 1995.
(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
requirements, Supplemental Security Income.
Dated: March 8, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend
subpart R of part 404 and subpart O of part 416 of chapter III of title
20 of the Code of Federal Regulations as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart R--[Amended]
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. Amend Sec. 404.1745 by removing the word ``or'' at the end of
paragraph (b), changing the period to a semicolon at the end of
paragraph (c), and adding new paragraphs (d) and (e) to read as
follows:
Sec. 404.1745 Violation of our requirements, rules, or standards.
* * * * *
(d) Has been, by reason of misconduct, disbarred or suspended from
any bar or court to which he or she was previously admitted to practice
(see Sec. 404.1770(a)); or
(e) Has been, by reason of misconduct, disqualified from
participating in or appearing before any Federal program or agency (see
Sec. 404.1770(a)).
3. Amend Sec. 404.1750 by revising paragraph (e)(2) to read as
follows:
Sec. 404.1750 Notice of charges against a representative.
* * * * *
(e) * * *
(2) File the answer with the Social Security Administration, at the
address
[[Page 19365]]
specified on the notice, within the 30-day time period.
* * * * *
4. Amend Sec. 404.1755 by revising the first sentence to read as
follows:
Sec. 404.1755 Withdrawing charges against a representative.
The Deputy Commissioner for Disability and Income Security Programs
(or other official the Commissioner may designate), or his or her
designee, may withdraw charges against a representative. * * *
5. Amend Sec. 404.1765(l) by adding a second sentence, to read as
follows:
Sec. 404.1765 Hearing on charges.
* * * * *
(l) Representation. * * * The Deputy Commissioner for Disability
and Income Security Programs (or other official the Commissioner may
designate), or his or her designee, will be represented by one or more
attorneys from the Office of the General Counsel.
* * * * *
6. Amend Sec. 404.1770 by redesignating existing paragraphs (a)(2)
and (a)(3) as (a)(3) and (a)(4), by adding new paragraph (a)(2), and
revising redesignated paragraph (a)(3)(ii), to read as follows:
Sec. 404.1770 Decision by hearing officer.
(a) * * *
(2) In deciding whether an individual has been, by reason of
misconduct, disbarred or suspended by a court or bar, or disqualified
from participating in or appearing before any Federal program or
agency, the hearing officer will consider the reasons for the
disbarment, suspension, or disqualification action. If the action was
taken for solely administrative reasons (e.g., failure to pay dues or
to complete continuing legal education requirements), that will not
disqualify the individual from acting as a representative before SSA.
However, this exception to disqualification does not apply if the
administrative action was taken in lieu of disciplinary proceedings
(e.g., acceptance of a voluntary resignation pending disciplinary
action). Although the hearing officer will consider whether the
disbarment, suspension, or disqualification action is based on
misconduct when deciding whether an individual should be disqualified
from acting as a representative before us, the hearing officer will not
re-examine or revise the factual or legal conclusions that led to the
disbarment, suspension or disqualification. For purposes of determining
whether an individual has been, by reason of misconduct, disqualified
from participating in or appearing before any Federal program or
agency--
(i) Disqualified refers to any action that prohibits an individual
from participating in or appearing before a Federal program or agency,
regardless of how long the prohibition lasts or the specific
terminology used.
(ii) Federal program refers to any program established by an Act of
Congress or administered by a Federal agency.
(iii) Federal agency refers to any authority of the executive
branch of the Government of the United States.
(3) * * *
(ii) Disqualify the representative from acting as a representative
in dealings with us until he or she may be reinstated under Sec.
404.1799. Disqualification is the sole sanction available if the
charges have been sustained because the representative has been
disbarred or suspended from any court or bar to which he or she was
previously admitted to practice or disqualified from participating in
or appearing before any Federal program or agency, or because the
representative has collected or received, and retains, a fee for
representational services in excess of the amount authorized.
* * * * *
7. Amend Sec. 404.1790 by revising paragraph (b) to read as
follows:
Sec. 404.1790 Appeals Council's decision.
* * * * *
(b) The Appeals Council, in changing a hearing officer's decision
to suspend a representative for a specified period, shall in no event
reduce the period of suspension to less than 1 year. In modifying a
hearing officer's decision to disqualify a representative, the Appeals
Council shall in no event impose a period of suspension of less than 1
year. Further, the Appeals Council shall in no event impose a
suspension when disqualification is the sole sanction available in
accordance with Sec. 404.1770(a)(3)(ii).
* * * * *
8. Amend Sec. 404.1799 by revising paragraph (d) to read as
follows:
Sec. 404.1799 Reinstatement after suspension or disqualification--
period of suspension not expired.
* * * * *
(d)(1) The Appeals Council shall not grant the request unless it is
reasonably satisfied that the person will in the future act according
to the provisions of section 206(a) of the Act, and to our rules and
regulations.
(2) If a person was disqualified because he or she had been
disbarred or suspended from a court or bar, the Appeals Council will
grant a request for reinstatement as a representative only if the
criterion in paragraph (d)(1) of this section is met and the
disqualified person shows that he or she has been admitted (or
readmitted) to and is in good standing with the court or bar from which
he or she had been disbarred or suspended.
(3) If a person was disqualified because he or she had been
disqualified from participating in or appearing before a Federal
program or agency, the Appeals Council will grant the request for
reinstatement only if the criterion in paragraph (d)(1) of this section
is met and the disqualified person shows that he or she is now
qualified to participate in or appear before that Federal program or
agency.
(4) If the person was disqualified as a result of collecting or
receiving, and retaining, a fee for representational services in excess
of the amount authorized, the Appeals Council will grant the request
only if the criterion in paragraph (d)(1) of this section is met and
the disqualified person shows that full restitution has been made.
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart O--[Amended]
9. 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)).
10. Amend Sec. 416.1545 by removing the word ``or'' at the end of
paragraph (b), changing the period to a semicolon at the end of
paragraph (c), and adding new paragraphs (d) and (e) to read as
follows:
Sec. 416.1545 Violation of our requirements, rules, or standards.
* * * * *
(d) Has been, by reason of misconduct, disbarred or suspended from
any bar or court to which he or she was previously admitted to practice
(see Sec. 416.1570(a)); or
(e) Has been, by reason of misconduct, disqualified from
participating in or appearing before any Federal program or agency (see
Sec. 416.1570(a)).
11. Amend Sec. 416.1550 by revising paragraph (e)(2) to read as
follows:
Sec. 416.1550 Notice of charges against a representative.
* * * * *
(e) * * *
(2) File the answer with the Social Security Administration, at the
address
[[Page 19366]]
specified on the notice, within the 30-day time period.
* * * * *
12. Amend Sec. 416.1555 by revising the first sentence to read as
follows:
Sec. 416.1555 Withdrawing charges against a representative.
The Deputy Commissioner for Disability and Income Security Programs
(or other official the Commissioner may designate), or his or her
designee, may withdraw charges against a representative. * * *
13. Amend Sec. 416.1565(l) by adding a second sentence, to read as
follows:
Sec. 416.1565 Hearing on charges.
* * * * *
(l) Representation. * * * The Deputy Commissioner for Disability
and Income Security Programs (or other official the Commissioner may
designate), or his or her designee, will be represented by one or more
attorneys from the Office of the General Counsel.
* * * * *
14. Amend Sec. 416.1570 by redesignating existing paragraphs
(a)(2) and (a)(3) as (a)(3) and (a)(4), by adding new paragraph (a)(2),
and revising redesignated paragraph (a)(3)(ii), to read as follows:
Sec. 416.1570 Decision by hearing officer.
(a) * * *
(2) In deciding whether an individual has been, by reason of
misconduct, disbarred or suspended by a court or bar, or disqualified
from participating in or appearing before any Federal program or
agency, the hearing officer will consider the reasons for the
disbarment, suspension, or disqualification action. If the action was
taken for solely administrative reasons (e.g., failure to pay dues or
to complete continuing legal education requirements), that will not
disqualify the individual from acting as a representative before SSA.
However, this exception to disqualification does not apply if the
administrative action was taken in lieu of disciplinary proceedings
(e.g., acceptance of a voluntary resignation pending disciplinary
action). Although the hearing officer will consider whether the
disbarment, suspension, or disqualification action is based on
misconduct when deciding whether an individual should be disqualified
from acting as a representative before us, the hearing officer will not
re-examine or revise the factual or legal conclusions that led to the
disbarment, suspension or disqualification. For purposes of determining
whether an individual has been, by reason of misconduct, disqualified
from participating in or appearing before any Federal program or
agency--
(i) Disqualified refers to any action that prohibits an individual
from participating in or appearing before a Federal program or agency,
regardless of how long the prohibition lasts or the specific
terminology used.
(ii) Federal program refers to any program established by an Act of
Congress or administered by a Federal agency.
(iii) Federal agency refers to any authority of the executive
branch of the Government of the United States.
(3) * * *
(ii) Disqualify the representative from acting as a representative
in dealings with us until he or she may be reinstated under Sec.
416.1599. Disqualification is the sole sanction available if the
charges have been sustained because the representative has been
disbarred or suspended from any court or bar to which he or she was
previously admitted to practice or disqualified from participating in
or appearing before any Federal program or agency, or because the
representative has collected or received, and retains, a fee for
representational services in excess of the amount authorized.
* * * * *
15. Amend Sec. 416.1590 by revising paragraph (b) to read as
follows:
Sec. 416.1590 Appeals Council's decision.
* * * * *
(b) The Appeals Council, in changing a hearing officer's decision
to suspend a representative for a specified period, shall in no event
reduce the period of suspension to less than 1 year. In modifying a
hearing officer's decision to disqualify a representative, the Appeals
Council shall in no event impose a period of suspension of less than 1
year. Further, the Appeals Council shall in no event impose a
suspension when disqualification is the sole sanction available in
accordance with Sec. 416.1570(a)(3)(ii).
* * * * *
16. Amend Sec. 416.1599 by revising paragraph (d) to read as
follows:
Sec. 416.1599 Reinstatement after suspension or disqualification --
period of suspension not expired.
* * * * *
(d)(1) The Appeals Council shall not grant the request unless it is
reasonably satisfied that the person will in the future act according
to the provisions of section 206(a) of the Act, and to our rules and
regulations.
(2) If a person was disqualified because he or she had been
disbarred or suspended from a court or bar, the Appeals Council will
grant a request for reinstatement as a representative only if the
criterion in paragraph (d)(1) of this section is met and the
disqualified person shows that he or she has been admitted (or
readmitted) to and is in good standing with the court or bar from which
he or she had been disbarred or suspended.
(3) If a person was disqualified because he or she had been
disqualified from participating in or appearing before a Federal
program or agency, the Appeals Council will grant the request for
reinstatement only if the criterion in paragraph (d)(1) of this section
is met and the disqualified person shows that he or she is now
qualified to participate in or appear before that Federal program or
agency.
(4) If the person was disqualified as a result of collecting or
receiving, and retaining, a fee for representational services in excess
of the amount authorized, the Appeals Council will grant the request
only if the criterion in paragraph (d)(1) of this section is met and
the disqualified person shows that full restitution has been made.
* * * * *
[FR Doc. 05-7353 Filed 4-12-05; 8:45 am]
BILLING CODE 4191-02-P
