Rules of Conduct and Standards of Responsibility for Appointed Representatives, 30849-30860 [2018-13989]

Agencies

• Social Security Administration

[Federal Register Volume 83, Number 127 (Monday, July 2, 2018)]
[Rules and Regulations]
[Pages 30849-30860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13989]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2013-0044]
RIN 0960-AH63


Rules of Conduct and Standards of Responsibility for Appointed 
Representatives

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising our rules of conduct and standards of 
responsibility for representatives. We are also updating and clarifying 
the procedures we use when we bring charges against a representative 
for violating these rules and standards. These changes are necessary to 
better protect the integrity of our administrative process and to 
further clarify representatives' existing responsibilities in their 
conduct with us. The revisions should not be interpreted to suggest 
that any specific conduct was permissible under our rules prior to 
these changes; instead, we seek to ensure that our rules of conduct and 
standards of responsibility are clearer as a whole and directly address 
a broader range of inappropriate conduct.

DATES: These final rules will be effective August 1, 2018.

FOR FURTHER INFORMATION CONTACT: Sarah Taheri, Office of Appellate 
Operations, Social Security Administration, 5107 Leesburg Pike, Falls 
Church, VA 22041, (703) 605-7100. 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:

Background

    Although the vast majority of representatives conducting business 
before us on behalf of Social Security beneficiaries and claimants 
ethically and conscientiously assist their clients, we are concerned 
that some representatives are using our processes in a way that 
undermines the integrity of our programs and harms claimants. 
Accordingly, we are clarifying that certain actions are prohibited, and 
we are providing additional means to address representative actions 
that do not serve the best interests of claimants.
    On August 16, 2016,\1\ we published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register in which we proposed clarifications and 
revisions to our rules of conduct for representatives. To the extent 
that we adopt a proposed change as final without revision, and we 
already discussed at length the reason for and details of the proposal, 
we will not repeat that information here.
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    \1\ 81 FR 54520. https://www.federalregister.gov/documents/2016/08/16/2016-19384/revisions-to-rules-of-conduct-and-standards-of-responsibility-for-appointed-representatives.
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    In response to the NPRM, we received 154 timely submitted comments 
that addressed issues within the scope of our proposed rules. Based on 
those comments, we are modifying some of our proposed changes to 
address concerns that commenters raised. We have also made editorial 
changes consistent with plain language writing requirements. We made 
conforming changes in other sections not originally edited in the NPRM. 
Finally, we made changes to ensure correct paragraph punctuation in 
Sec. Sec.  404.1740 and 416.1540; a nomenclature change to reflect the 
organization of our agency in Sec. Sec.  404.1765(b)(1) and 
416.1565(b)(1); and updated a cross-reference in Sec. Sec.  404.1755 
and 416.1555 that refers to Sec. Sec.  404.1745 and 416.1545, sections 
reorganized and rewritten in the NPRM and codified in the final rule.

Public Comments and Discussion

    Comment: Some commenters suggested that our proposed rules would 
deter potential representatives from representing claimants in Social 
Security matters.
    Response: These rules reflect our interest in protecting claimants 
and ensuring the integrity of our administrative process, and they do 
not impose unreasonable standards of conduct. These additional rules of 
conduct should not deter competent, knowledgeable, and principled 
representatives.
    Comment: Some commenters objected to the provision in proposed 
Sec.  404.1705(b)(4) and 416.1505(b)(4), which includes ``persons 
convicted of a

[[Page 30850]]

felony (as defined by Sec.  404.1506(c)), or any crime involving moral 
turpitude, dishonesty, false statements, misrepresentation, deceit, or 
theft'' as examples of persons who lack ``good character and 
reputation.'' The commenters sometimes referred to this provision as 
involving a ``lifetime ban'' on representation. Commenters noted that a 
``lifetime ban'' fails to consider multiple situations, such as 
overturned convictions. Some commenters suggested that we place the ban 
only on representatives with prior felony convictions but exempt those 
with past misdemeanor convictions, because claimants may have family 
members with misdemeanor convictions who are otherwise well-qualified 
to be representatives. Commenters opined that there is nothing inherent 
about a felony conviction that would prohibit a person from providing 
competent representation. Finally, commenters suggested that this 
proposed regulation would decrease the pool of representatives, 
particularly for minorities, because, according to these commenters, 
some statistics show higher conviction rates in minority populations.
    Response: We have broad rulemaking authority to decide who can 
serve as a non-attorney representative. We believe we can achieve our 
goal of protecting claimants from potentially fraudulent 
representatives by limiting the prohibition to individuals convicted of 
certain offenses that are more severe in nature or involve behavior 
that reflects poorly on an individual's ability to represent claimants. 
There is no evidence that this approach will decrease the pool of 
available, high quality representatives for any particular population. 
Accordingly, we determined that individuals are not qualified to 
practice before us if they have a felony conviction (as defined in our 
rules) or a conviction involving moral turpitude, dishonesty, false 
statements, misrepresentation, deceit, or theft. These criminal 
convictions reflect crimes that, by their nature, are more serious 
based on their categorization as felonies, or involve behavior that 
reflects poorly on an individual's honesty and moral judgment and, 
therefore, also reflects poorly on the individual's ability to 
represent claimants. This disqualification would not apply to 
convictions that have been overturned or other similar situations, 
which we have clarified in the final rules. The regulation does not 
specifically bar individuals with misdemeanor convictions from serving 
as representatives, unless the misdemeanor involved moral turpitude, 
dishonesty, false statements, misrepresentation, deceit, or theft, 
which are the misdemeanors that we believe reflect a lack of honesty 
and moral judgment, characteristics that we consider necessary in 
representatives. Further, even if individuals are unable to serve as 
appointed representatives due to these rules, they may still assist 
their family members with claims in an unofficial capacity.
    Comment: Some commenters stated that claimants should be held 
harmless if they appoint a representative whom they later learn was not 
qualified (proposed Sec. Sec.  404.1705(b)(4) and 416.1505(b)(4)).
    Response: These rules do not suggest that we would impose any 
penalty on a claimant who appoints or attempts to appoint an 
unqualified representative. This regulatory section only identifies 
whom we will recognize as a representative.
    Comment: Some commenters stated that proposed Sec. Sec.  
404.1740(b)(3)(iii) and 416.1540(b)(3)(iii) should clarify that a list 
of potential dates and times that a representative will be available 
for a hearing is only required to be accurate at the time it is 
submitted. The comments explained that many representatives schedule 
hearings in multiple locations, and availability may change once they 
have other obligations scheduled.
    Response: We understand that schedules change, and we do not expect 
representatives to hold open their schedules for all of the dates and 
times that they identify. We did not change the proposed regulatory 
text.
    Comment: Commenters stated that the term ``scheduled'' is too vague 
(proposed Sec. Sec.  404.1740(b)(3)(iv) and 416.1540(b)(3)(iv)).
    Response: A hearing has been ``scheduled'' when a date and time 
have been set and we have notified all parties. We clarified the 
language in these sections.
    Comment: Some commenters asserted that restricting a 
representative's right to withdraw after a hearing is scheduled, except 
under ``extraordinary circumstances,'' is an overly broad restriction 
that inhibits a representative's right to withdraw in circumstances 
where the representative knows that the client no longer has a viable 
case. Many commenters also argued that forcing representatives to 
divulge their reasons for withdrawal to justify extraordinary 
circumstances may violate the attorney-client privilege, if the 
withdrawal is based on the representative's knowledge that a client may 
be engaging in fraud. Other commenters stated that if a claimant does 
not want to attend a hearing but will not release the representative, 
and the representative cannot withdraw, the administrative law judge 
(ALJ) will not be able to dismiss the case and will have to hold a 
hearing, which wastes administrative time and resources. Finally, 
commenters noted that hearings are sometimes already scheduled by the 
time representatives are hired. Because representatives cannot view 
claimants' files until they are appointed, representatives may have to 
withdraw after reviewing the file even though a hearing has already 
been scheduled.
    Response: The American Bar Association (ABA) Model Rules of 
Professional Conduct Rule (Model Rule) 1.16 includes requirements for 
withdrawal similar to this regulation. Some examples of ``extraordinary 
circumstances'' under which we may allow a withdrawal include (1) 
serious illness; (2) death or serious illness in the representative's 
immediate family; or (3) failure to locate a claimant despite active 
and diligent attempts to contact the claimant.
    We are not seeking privileged communications between an attorney 
and client. If the representative cannot describe why he or she must 
withdraw without revealing privileged or confidential communications 
(and if no exceptions to the attorney-client privilege exist, such as 
the crime-fraud exception), the representative should state this fact, 
not disclose the privileged or confidential communication, and allow 
the ALJ to evaluate the request under these circumstances.
    Comment: Commenters raised the issue of providing ``prompt and 
timely communication'' with claimants, stating that this is often 
difficult with homeless or indigent claimants (proposed Sec. Sec.  
404.1740(b)(3)(v) and 416.1540(b)(3)(v)). Some commenters suggested 
changing this language to ``keep the client reasonably informed of the 
status of the case'' in accordance with Model Rule 1.4. One commenter 
requested that we define ``incompetent representation'' and 
``reasonable and adequate representation.''
    Response: Representatives are responsible for maintaining timely 
contact with their clients. We expect representatives to have working 
contact information for all of their clients, but we recognize that it 
may be difficult to locate homeless or indigent clients in some 
circumstances. We have changed the language of Sec. Sec.  
404.1740(b)(3)(v) and 416.1540(b)(3)(v) to take into account the 
difficulty in locating certain claimants despite a representative's 
best

[[Page 30851]]

efforts. We did not provide any definition of ``incompetent 
representation'' or ``reasonable and adequate representation,'' because 
these terms do not appear in the rule.
    Comment: A number of commenters were concerned with proposed 
Sec. Sec.  404.1740(b)(5) and 416.1540(b)(5), which require a 
representative to disclose certain things in writing when the 
representative submits a medical or vocational opinion to us. The 
commenters specifically raised concerns about the disclosure of 
physician referrals and the disclosure requirement when the medical or 
vocational opinion was ``drafted, prepared, or issued'' by an employee 
of the representative or an individual contracting with the 
representative for services. Commenters also stated that the term 
``prepared'' is vague, and it is unclear whether disclosure would be 
required if a representative discusses the sequential evaluation 
process with a provider of an opinion or supplies a questionnaire for a 
provider to complete. Some commenters further maintained that requiring 
disclosure of physician referrals would violate the attorney-client 
privilege and that such referrals are irrelevant to the representation 
of the case. Commenters also requested that the regulation clarify that 
opinions are entitled to the same weight regardless of whether the 
representative requested them. Finally, commenters argued that 
requiring disclosure will ``chill'' referrals for those claimants who 
need them most.
    Response: When a representative submits a medical or vocational 
opinion to us, he or she has an affirmative duty to disclose to us in 
writing if the representative or one of the representative's employees 
or contractors participated in drafting, preparing, or issuing the 
opinion. For clarity, we consider providing guidance or providing a 
questionnaire, template or format to fall within the parameters of this 
rule when the guidance, questionnaire, template or format is used to 
draft a medical or vocational opinion submitted to us. In response to 
the concern that the term ``prepared'' is vague, unless the context 
indicates otherwise, we intend the ordinary meaning of words used in 
our regulations. We intend the word ``prepared'' here to have its 
ordinary meaning. Representatives also have an affirmative duty to 
disclose to us in writing if the representative referred or suggested 
that the claimant be examined, treated, or assisted by the individual 
who provided the opinion evidence. However, we are not seeking 
privileged or confidential communications concerning legal advice 
between an attorney and client, nor are we requiring disclosure of 
detailed communications. We are only requiring that representatives 
disclose the fact that they made a referral or participated in 
drafting, preparing, or issuing an opinion. See Fed. R. of Civ. P. 
26(b)(5)(A) (``When a party withholds information otherwise 
discoverable by claiming that the information is privileged or subject 
to protection as trial-preparation material, the party must . . . 
describe the nature of the documents, communications, or tangible 
things not produced or disclosed--and do so in a manner that, without 
revealing information itself privileged or protected, will enable other 
parties to assess the claim.'') We explain what we mean by the 
attorney-client and attorney work product privileges more fully in 
Sec. Sec.  404.1513(b)(2) and 416.913(b)(2) of our rules. We will 
interpret the affirmative duty in final Sec. Sec.  404.1740(b)(5) and 
416.1540(b)(5) in light of our interpretation of those privileges in 
Sec. Sec.  404.1513(b)(2) and 416.913(b)(2). In response to the request 
that the regulation clarify that opinions are entitled to the same 
weight regardless of whether the representative requested them, we have 
other regulations that govern how we evaluate medical opinion evidence. 
See 20 CFR 404.1520c, 404.1527, 416.920c, and 416.927.
    Comment: Some commenters stated that notifying us if a claimant is 
committing fraud (proposed Sec. Sec.  404.1740(b)(6) and 
416.1540(b)(6)) violates the attorney-client privilege and Model Rule 
1.6. Commenters also suggested a more direct adoption of the provisions 
of Model Rule 3.3, Candor Toward the Tribunal.
    Response: We do not believe that our final rule violates either the 
attorney-client privilege or Model Rule 1.6. Our final rule requires a 
representative to ``[d]isclose to us immediately if the representative 
discovers that his or her services are or were used by the claimant to 
commit fraud against us.'' Model Rule 1.6(b)(2) \2\ includes an 
exception to confidentiality ``to prevent the client from committing a 
crime or fraud that is reasonably certain to result in substantial 
injury to the financial interests or property of another and in 
furtherance of which the client has used or is using the lawyer's 
services.'' Furthermore, the crime-fraud exception to the attorney-
client privilege allows a lawyer to disclose otherwise privileged 
communications when they are in furtherance of a crime or fraudulent 
act. When a claimant uses a representative's services in furtherance of 
the claimant's fraud, there is a reasonable certainty that the fraud 
will cause substantial injury to the Social Security trust funds. Such 
fraud also undermines public confidence in our programs. Our proposed 
and final rules are fully consistent with the exception to 
confidentiality found in Model Rule 1.6(b)(2). The final rules also 
address the aim of Model Rule 3.3 to limit false or misleading 
statements, but within the unique context of the legal and procedural 
structure of the Social Security programs. Therefore, we are not 
changing the originally proposed language.
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    \2\ Rule 1.6, Confidentiality of information. (2013). In 
American Bar Association, Center for Professional Responsibility, 
Model Rules of Professional Conduct. Retrieved from https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html.
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    Comment: A few commenters asked us to clarify whether disbarment or 
disqualification will be an automatic bar to representation, or whether 
we will address each situation individually (proposed Sec. Sec.  
404.1740(b)(7)-(9) and 416.1540(b)(7)-(9)).
    Response: We will address any disclosure made pursuant to 
Sec. Sec.  404.1740(b)(7)-(9) and 416.1540(b)(7)-(9) on an individual 
basis.
    Comment: Some commenters stated that proposed Sec.  416.1540(b)(10) 
is too broad, because representatives often refer Supplemental Security 
Income (SSI) claimants to special needs trust attorneys, and the 
proposed language suggests that the representatives would be 
responsible for the conduct of the trust attorneys. Other commenters 
recommend that the regulation encompass only those people over whom 
representatives have supervisory authority.
    Response: In response to these comments, we have revised the 
language in final Sec. Sec.  404.1740(b)(10) and 416.1540(b)(10) to 
clarify that the affirmative duty applies ``when the representative has 
managerial or supervisory authority over these individuals or otherwise 
has responsibility to oversee their work.'' Further, because this 
requirement is an affirmative duty, we moved language from proposed 
Sec. Sec.  404.1740(c)(14) and 416.1540(c)(14) to Sec. Sec.  
404.1740(b)(10) and 416.1540(b)(10), which outlines the affirmative 
duty to take remedial action when: (i) The representative's employees, 
assistants, partners, contractors, or other individuals' conduct 
violates these rules of conduct

[[Page 30852]]

and standards of responsibility, and (ii) the representative has reason 
to believe a violation of these rules of conduct and standards of 
responsibility will occur. We revised the language of final Sec. Sec.  
404.1740(c)(14) and 415.1540(c)(14) to prohibit representatives from 
failing to oversee other individuals working on the claims on which the 
representative is appointed when the representative has managerial or 
supervisory authority over these individuals or otherwise has 
responsibility to oversee their work.
    Comment: Some commenters objected to proposed Sec. Sec.  
404.1740(c)(1) and 416.1540(c)(1), which prohibit ``misleading a 
claimant, or prospective claimant or beneficiary, about the 
representative's services and qualifications.'' Commenters asked 
whether it would be misleading if a claimant refers to a non-attorney 
representative as an attorney, and the representative does not correct 
them.
    Response: Not correcting a known misconception about the 
representative's status as a non-attorney is ``misleading a claimant,'' 
as contemplated under this prohibition.
    Comment: A few commenters objected to the language of proposed 
Sec.  404.1740(c)(7)(ii)(B), which prohibits ``[p]roviding misleading 
information or misrepresenting facts . . . where the representative has 
or should have reason to believe the information was misleading and the 
facts would constitute a misrepresentation.'' These commenters stated 
that many claimants are mentally ill, and it is difficult to ascertain 
whether a client is providing accurate facts. The commenters also 
objected to the term ``should,'' stating that it is overly vague. A few 
commenters believe the standard ``knowingly'' should be added. 
Commenters also stated that this regulation conflicted with our rule on 
the submission of evidence, which requires representatives to submit 
all available evidence.
    Response: Based on the comments, we have changed the ``has or 
should have reason to believe'' language of the proposed rule to 
``knows or should have known'' in the final rule. Whether or not a 
claimant is mentally ill, a representative will violate the standard in 
the final rule if he or she presents information that he or she knows 
to be false or circumstances demonstrate that the representative should 
have known it to be false. This rule does not conflict with our rule 
requiring representatives to submit all evidence, because a false 
document is not evidence as contemplated under Sec. Sec.  404.1513 and 
416.913. Further, ``should'' is not an overly broad standard and is a 
commonly used term in Federal laws and regulations. See, e.g., 42 
U.S.C. 1320a-8a(a)(1).
    Comment: A few commenters stated that proposed Sec. Sec.  
404.1740(c)(7)(ii)(C) and 416.1540(c)(7)(ii)(C) should clarify that 
representatives may contact SSA staff regarding matters such as case 
status, requests for critical case flags, Congressional inquiries, or 
when SSA staff ask the representative to contact them.
    Response: We did not make any changes in response to these 
comments. The proposed and final rules specifically states that 
representatives should not communicate with agency staff ``outside the 
normal course of business or other prescribed procedures in an attempt 
to inappropriately influence the processing or outcome of a claim(s).'' 
Matters such as case status inquiries, requests for critical case 
flags, and Congressional inquiries are not outside the normal course of 
business, nor would they be attempts to inappropriately influence the 
processing or outcome of a claim.
    Comment: Some commenters asked whether a representative would be 
guilty of misleading an ALJ if an ALJ finds that a claimant's 
statements are ``not fully credible.'' These commenters also recommend 
adding ``knowingly'' to proposed Sec. Sec.  404.1740(c)(3) and 
416.1540(c)(3). Other commenters stated that requiring representatives 
to disclose matters of which they do not have actual knowledge would 
``chill'' advocacy.
    Response: On March 16, 2016, we published Social Security Ruling 
(SSR) 16-3p, ``Titles II and XVI: Evaluation of Symptoms in Disability 
Claims'' in the Federal Register.\3\ In this SSR, we eliminated the use 
of the term ``credibility'' from our sub-regulatory policy, because our 
regulations do not use this term. In doing so, we clarified that 
subjective symptom evaluation is not an examination of an individual's 
character. Instead, we will more closely follow our regulatory language 
regarding symptom evaluation. With respect to the commenters' concerns, 
the regulations include a number of factors that must be considered 
when evaluating symptoms, but a representative will not be found to be 
misleading an ALJ based solely on the results of this evaluation. 
Acknowledging the concern about the standard we will use in evaluating 
this type of situation, we are changing the ``has or should have reason 
to believe'' language in the proposed rule to ``knows or should have 
known'' in the final rule. This provision addresses only situations 
where the representative knows or should have known that specific 
statements, evidence, assertions, or representations are false or 
misleading.
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    \3\ 81 FR 14166 (March 16, 2016). https://www.federalregister.gov/documents/2016/03/16/2016-05916/social-security-ruling-16-3p-titles-ii-and-xvi-evaluation-of-symptoms-in-disability-claims. Corrected at 81 FR 15776 (March 24, 2016). 
https://www.federalregister.gov/documents/2016/03/24/2016-06598/social-security-ruling-16-3p-titles-ii-and-xvi-evaluation-of-symptoms-in-disability-claims.
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    Comment: Commenters objected to the 14-day limit to respond to 
charges and proposed that the 30-day limit in the current rules should 
be maintained (proposed Sec. Sec.  404.1750 and 416.1550).
    Response: We did not adopt this suggestion, because we believe that 
14 days allows for a more timely resolution of misconduct matters. The 
14-day timeframe provides the representative with sufficient time to 
respond to charges, which typically consists only of affirming or 
denying various factual allegations. However, in response to the 
commenters' concerns that the proposed rule did not give 
representatives adequate time to respond to the charges, we added the 
term ``business'' to clarify that the time limit is 14 business days.
    Comment: One commenter suggested that representatives be suspended 
from representing clients until the sanction process is complete.
    Response: The Social Security Act requires that we give a 
representative notice and opportunity for a hearing before we suspend 
or disqualify him or her from practicing before us. We have long 
allowed representatives to continue to practice before us until there 
is a final decision on the case. We will continue to impose sanctions 
only after the administrative sanctions process is completed.
    Comment: Some commenters suggested that a representative should not 
have to show good cause for objecting to the manner of hearing 
(proposed Sec. Sec.  404.1765(d) and 416.1565(d)). One commenter stated 
that a hearing should always be in person unless a party can 
demonstrate that there is no genuine dispute as to any material fact.
    Response: The hearing officer is in the best position to decide how 
to conduct a particular hearing in the most effective and efficient 
manner. A ``good cause'' standard for objecting to the manner of the 
hearing ensures that any objection to this issue is well-founded.
    Comment: A few commenters stated that 14 days is insufficient time 
to request review of a hearing officer's decision (proposed Sec. Sec.  
404.1775 and 416.1575). The commenters requested that the rule clarify 
whether it refers to business or calendar days.

[[Page 30853]]

    Response: In response to these and other related comments, we 
adopted this suggestion and added the word ``business'' to clarify that 
the 14-day period means 14 business days.
    Comment: Some commenters stated that proposed Sec. Sec.  404.1785 
and 416.1585 shift the burden from the Appeals Council to 
representatives to obtain evidence. They stated that by changing the 
language from the Appeals Council ``shall require that the evidence be 
obtained'' to ``the Appeals Council will allow the party with the 
information to submit the additional evidence,'' the regulation 
relieves the Appeals Council of the responsibility for obtaining 
evidence and allows the Appeals Council to ignore evidence submitted by 
another party.
    Response: We changed the language in Sec. Sec.  404.1785 and 
416.1585 for clarity. In the adversarial proceedings to sanction 
representatives, the obligation to provide evidence to the Appeals 
Council is, and has always been, on the party with the information. 
Accordingly, we are not changing the language proposed in the NPRM.
    Comment: Some commenters asked that we clarify which decisions we 
will publish and when we will publish them (proposed Sec. Sec.  
404.1790(f) and 416.1590(f)). They also inquired as to whether the 
public will have access to the published decisions, and they expressed 
concern that the decisions might contain personally identifiable 
information.
    Response: On June 16, 2017, the Administrative Conference of the 
United States (ACUS) adopted Recommendation 2017-1, ``Adjudication 
Materials on Agency Websites.'' \4\ ACUS recommended that ``[a]gencies 
should consider providing access on their websites to decisions and 
supporting materials (e.g., pleadings, motions, briefs) issued and 
filed in adjudicative proceedings.'' ACUS also recommended that 
``[a]gencies that adjudicate large volumes of cases that do not vary 
considerably in terms of their factual contexts or the legal analyses 
employed in their dispositions should consider disclosing on their 
websites a representative sampling of actual cases and associated 
adjudication materials.'' We will work with ACUS with respect to this 
recommendation, and we will provide details in sub-regulatory guidance 
of how we will publish decisions after these final rules become 
effective. In response to the commenters' concerns about privacy, we 
take concerns regarding personally identifiable information seriously, 
and the final rule makes clear that we will remove or redact any 
personally identifiable information from the decisions.
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    \4\ Administrative Conference of the United States, 
Recommendation 2017-1, Adjudication Materials on Agency Websites, 82 
FR 31039 (July 5, 2017).
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    Comment: One commenter stated that proposed Sec.  404.1790 should 
use a ``preponderance of the evidence'' standard rather than the 
``substantial evidence standard.''
    Response: The Appeals Council is an appellate body that generally 
reviews decisions using the substantial evidence standard.\5\ 
Therefore, we are not changing this language.
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    \5\ 20 CFR 404.970(a)(3), 416.1470(a)(3).
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    Comment: Some commenters stated that the word ``may'' should be 
changed to ``will'' in proposed Sec. Sec.  404.1790(f) and 416.1590(f), 
which state, ``Prior to making a decision public, we may remove or 
redact information from the decision.''
    Response: We adopted this comment and changed ``may'' to ``will.'' 
We will redact any personally identifiable information from the 
decisions.
    Comment: One commenter stated that the 3-year ban on reinstatement 
after suspension is too harsh.
    Response: The 3-year prohibition is actually a 3-year wait to 
reapply for reinstatement and we believe it is appropriate, because our 
experience shows that when the Appeals Council denies a request for 
reinstatement, the representative typically has not taken appropriate 
action to remedy the violation or does not understand its severity. We 
are implementing this change to ensure more thoroughly supported 
requests for reinstatement.

Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that these final rules meet the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563 and are subject to OMB review.

Executive Order 13771

    This rule is not subject to the requirements of Executive Order 
13771 because it is administrative in nature and results in no more 
than de minimis costs.

Regulatory Flexibility Act

    We certify that these final rules will not have a significant 
economic impact on a substantial number of small entities because they 
affect individuals only. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    These final rules contain information collection burdens in 
Sec. Sec.  404.1740(b)(5) through (9) and 416.1540(b)(5) through (b)(9) 
that require OMB clearance under the Paperwork Reduction Act of 1995 
(PRA). As the PRA requires, we submitted a clearance request to OMB for 
approval of these sections. We will publish the OMB number and 
expiration date upon approval.
    Further, these final rules contain information collection 
activities at 20 CFR 404.1750(c) and (e)(2), 404.1765(g)(1), 
404.1775(b), 404.1799(d)(2), 416.1550(c) and (e)(2), 416.1565(g)(1), 
416.1575(b), and 416.1599(d)(2). However, 44 U.S.C. 3518(c)(1)(B)(ii) 
exempts these activities from the OMB clearance requirements under the 
Paperwork Reduction Act of 1995.
    We published an NPRM on August 16, 2016 at 81 FR 54520. In that 
NPRM, we solicited comments under the PRA on the burden estimate; the 
need for the information; its practical utility; ways to enhance its 
quality, utility and clarity; and on ways to minimize the burden on 
respondents, including the use of automated collection techniques or 
other forms of information technology. We received no public comments 
relating to any of these issues. We will not collect the information 
referenced in these burden sections until we receive OMB approval.

(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; and 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 (SSI).

Nancy A. Berryhill,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we amend 20 CFR chapter 
III,

[[Page 30854]]

parts 404 and part 416, as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950- )

Subpart R--[Amended]

0
1. The authority citation for subpart R of part 404 continues to read 
as follows:

    Authority: Secs. 205(a), 206, 702(a)(5), and 1127 of the Social 
Security Act (42 U.S.C. 405(a), 406, 902(a)(5), and 1320a-6).


0
2. Revise Sec.  404.1705(b) to read as follows:


Sec.  404.1705  Who may be your representative.

* * * * *
    (b) You may appoint any person who is not an attorney to be your 
representative in dealings with us if the person--
    (1) Is capable of giving valuable help to you in connection with 
your claim;
    (2) Is not disqualified or suspended from acting as a 
representative in dealings with us;
    (3) Is not prohibited by any law from acting as a representative; 
and
    (4) Is generally known to have a good character and reputation. 
Persons lacking good character and reputation, include, but are not 
limited to, persons who have a final conviction of a felony (as defined 
by Sec.  404.1506(c)) or any crime involving moral turpitude, 
dishonesty, false statements, misrepresentation, deceit, or theft.
* * * * *

0
3. Amend Sec.  404.1740 as follows:
0
a. Revise paragraphs (b)(2)(vii) and (b)(3);
0
b. Add paragraphs (b)(5) through (10);
0
c. Revise paragraphs (c)(1) through (6) and (c)(7)(ii);
0
d. Remove paragraph (c)(7)(iii);
0
e. Revise paragraphs (c)(8) through (13); and
0
f. Add paragraph (c)(14).
    The revisions and additions read as follows:


Sec.  404.1740  Rules of conduct and standards of responsibility for 
representatives.

* * * * *
    (b) * * *
    (2) * * *
    (vii) Any other factors showing how the claimant's impairment(s) 
affects his or her ability to work. In Sec. Sec.  404.1560 through 
404.1569a, we discuss in more detail the evidence we need when we 
consider vocational factors.
    (3) Conduct his or her dealings in a manner that furthers the 
efficient, fair, and orderly conduct of the administrative decision-
making process, including duties to:
    (i) Provide competent representation to a claimant. Competent 
representation requires the knowledge, skill, thoroughness, and 
preparation reasonably necessary for the representation. A 
representative must know the significant issue(s) in a claim, have 
reasonable and adequate familiarity with the evidence in the case, and 
have a working knowledge of the applicable provisions of the Social 
Security Act, as amended, the regulations, the Social Security Rulings, 
and any other applicable provisions of law.
    (ii) Act with reasonable diligence and promptness in representing a 
claimant. This includes providing prompt and responsive answers to our 
requests for information pertinent to processing of the claim.
    (iii) When requested, provide us, in a manner we specify, potential 
dates and times that the representative will be available for a 
hearing. We will inform the representative how many potential dates and 
times we require to coordinate the hearing schedule.
    (iv) Only withdraw representation at a time and in a manner that 
does not disrupt the processing or adjudication of a claim and that 
provides the claimant adequate time to find new representation, if 
desired. A representative should not withdraw after we set the time and 
place for the hearing (see Sec.  404.936) unless the representative can 
show that a withdrawal is necessary due to extraordinary circumstances, 
as we determine on a case-by-case basis.
    (v) Maintain prompt and timely communication with the claimant, 
which includes, but is not limited to, reasonably informing the 
claimant of all matters concerning the representation, consulting with 
the claimant on an ongoing basis during the entire representational 
period, and promptly responding to a claimant's reasonable requests for 
information. When we evaluate whether a representative has maintained 
prompt and timely communication with the claimant, we will consider the 
difficulty the representative has in locating a particular claimant 
(e.g., because the claimant is homeless) and the representative's 
efforts to keep that claimant informed.
* * * * *
    (5) Disclose in writing, at the time a medical or vocational 
opinion is submitted to us or as soon as the representative is aware of 
the submission to us, if:
    (i) The representative's employee or any individual contracting 
with the representative drafted, prepared, or issued the medical or 
vocational opinion; or
    (ii) The representative referred or suggested that the claimant 
seek an examination from, treatment by, or the assistance of, the 
individual providing opinion evidence.
    (6) Disclose to us immediately if the representative discovers that 
his or her services are or were used by the claimant to commit fraud 
against us.
    (7) Disclose to us whether the representative is or has been 
disbarred or suspended from any bar or court to which he or she was 
previously admitted to practice, including instances in which a bar or 
court took administrative action to disbar or suspend the 
representative in lieu of disciplinary proceedings (e.g. acceptance of 
voluntary resignation pending disciplinary action). If the disbarment 
or suspension occurs after the appointment of the representative, the 
representative will immediately disclose the disbarment or suspension 
to us.
    (8) Disclose to us whether the representative is or has been 
disqualified from participating in or appearing before any Federal 
program or agency, including instances in which a Federal program or 
agency took administrative action to disqualify the representative in 
lieu of disciplinary proceedings (e.g. acceptance of voluntary 
resignation pending disciplinary action). If the disqualification 
occurs after the appointment of the representative, the representative 
will immediately disclose the disqualification to us.
    (9) Disclose to us whether the representative has been removed from 
practice or suspended by a professional licensing authority for reasons 
that reflect on the person's character, integrity, judgment, 
reliability, or fitness to serve as a fiduciary. If the removal or 
suspension occurs after the appointment of the representative, the 
representative will immediately disclose the removal or suspension to 
us.
    (10) Ensure that all of the representative's employees, assistants, 
partners, contractors, or any person assisting the representative on 
claims for which the representative has been appointed, comply with 
these rules of conduct and standards of responsibility for 
representatives, when the representative has managerial or supervisory 
authority over these individuals or otherwise has responsibility to 
oversee their work.

[[Page 30855]]

This includes a duty to take remedial action when:
    (i) The representative's employees, assistants, partners, 
contractors or other individuals' conduct violates these rules of 
conduct and standards of responsibility; and
    (ii) The representative has reason to believe a violation of these 
rules of conduct and standards of responsibility occurred or will 
occur.
    (c) * * *
    (1) In any manner or by any means threaten, coerce, intimidate, 
deceive or knowingly mislead a claimant, or prospective claimant or 
beneficiary, regarding benefits or other rights under the Act. This 
prohibition includes misleading a claimant, or prospective claimant or 
beneficiary, about the representative's services and qualifications.
    (2) Knowingly charge, collect or retain, or make any arrangement to 
charge, collect or retain, from any source, directly or indirectly, any 
fee for representational services in violation of applicable law or 
regulation. This prohibition includes soliciting any gift or any other 
item of value, other than what is authorized by law.
    (3) Make or present, or participate in the making or presentation 
of, false or misleading oral or written statements, evidence, 
assertions, or representations about a material fact or law concerning 
a matter within our jurisdiction, in matters where the representative 
knows or should have known that those statements, evidence, assertions, 
or representations are false or misleading.
    (4) Through his or her own actions or omissions, unreasonably delay 
or cause to be delayed, without good cause (see Sec.  404.911(b)), the 
processing of a claim at any stage of the administrative decision-
making process.
    (5) Divulge, without the claimant's consent, except as may be 
authorized by regulations prescribed by us or as otherwise provided by 
Federal law, any information we furnish or disclose about a claim or 
prospective claim.
    (6) Attempt to influence, directly or indirectly, the outcome of a 
decision, determination, or other administrative action by any means 
prohibited by law, or by offering or granting a loan, gift, 
entertainment, or anything of value to a presiding official, agency 
employee, or witness who is or may reasonably be expected to be 
involved in the administrative decision-making process, except as 
reimbursement for legitimately incurred expenses or lawful compensation 
for the services of an expert witness retained on a non-contingency 
basis to provide evidence.
    (7) * * *
    (ii) Behavior that has the effect of improperly disrupting 
proceedings or obstructing the adjudicative process, including but not 
limited to:
    (A) Directing threatening or intimidating language, gestures, or 
actions at a presiding official, witness, contractor, or agency 
employee;
    (B) Providing misleading information or misrepresenting facts that 
affect how we process a claim, including, but not limited to, 
information relating to the claimant's work activity or the claimant's 
place of residence or mailing address in matters where the 
representative knows or should have known that the information was 
misleading and the facts would constitute a misrepresentation; and
    (C) Communicating with agency staff or adjudicators outside the 
normal course of business or other prescribed procedures in an attempt 
to inappropriately influence the processing or outcome of a claim(s).
    (8) Violate any section of the Act for which a criminal or civil 
monetary penalty is prescribed.
    (9) Refuse to comply with any of our rules or regulations.
    (10) Suggest, assist, or direct another person to violate our rules 
or regulations.
    (11) Advise any claimant or beneficiary not to comply with any of 
our rules or regulations.
    (12) Knowingly assist a person whom we suspended or disqualified to 
provide representational services in a proceeding under title II of the 
Act, or to exercise the authority of a representative described in 
Sec.  404.1710.
    (13) Fail to comply with our sanction(s) decision.
    (14) Fail to oversee the representative's employees, assistants, 
partners, contractors, or any other person assisting the representative 
on claims for which the representative has been appointed when the 
representative has managerial or supervisory authority over these 
individuals or otherwise has responsibility to oversee their work.

0
4. Amend Sec.  404.1745 by revising paragraphs (d) and (e) and adding 
paragraph (f) to read as follows:


Sec.  404.1745  Violations 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));
    (e) Has been, by reason of misconduct, disqualified from 
participating in or appearing before any Federal program or agency (see 
Sec.  404.1770(a)); or
    (f) Who, as a non-attorney, has been removed from practice or 
suspended by a professional licensing authority for reasons that 
reflect on the person's character, integrity, judgment, reliability, or 
fitness to serve as a fiduciary.

0
5. Amend Sec.  404.1750 by revising paragraphs (c), (d), (e)(2), and 
(f) to read as follows:


Sec.  404.1750  Notice of charges against a representative.

* * * * *
    (c) We will advise the representative to file an answer, within 14 
business days from the date of the notice, or from the date the notice 
was delivered personally, stating why he or she should not be suspended 
or disqualified from acting as a representative in dealings with us.
    (d) The General Counsel or other delegated official may extend the 
14-day period specified in paragraph (c) of this section for good 
cause, in accordance with Sec.  404.911.
    (e) * * *
    (2) File the answer with the Social Security Administration, at the 
address specified on the notice, within the 14-day time period 
specified in paragraph (c) of this section.
    (f) If the representative does not file an answer within the 14-day 
time period specified in paragraph (c) of this section (or the period 
extended in accordance with paragraph (d) of this section), he or she 
does not have the right to present evidence, except as may be provided 
in Sec.  404.1765(g).

0
6. Revise Sec.  404.1755 to read as follows:


Sec.  404.1755   Withdrawing charges against a representative.

    The General Counsel or other delegated official may withdraw 
charges against a representative. We will withdraw charges if the 
representative files an answer, or we obtain evidence, that satisfies 
us that we should not suspend or disqualify the representative from 
acting as a representative. When we consider withdrawing charges 
brought under Sec.  404.1745(d) through (f) based on the 
representative's assertion that, before or after our filing of charges, 
the representative has been reinstated to practice by the court, bar, 
or Federal program or Federal agency that suspended, disbarred, or 
disqualified the representative, the General Counsel or other delegated 
official will determine whether such reinstatement occurred, whether it 
remains in effect, and whether he or she is reasonably satisfied that 
the representative will in the future act in accordance with the

[[Page 30856]]

provisions of section 206(a) of the Act and our rules and regulations. 
If the representative proves that reinstatement occurred and remains in 
effect and the General Counsel or other delegated official is so 
satisfied, the General Counsel or other delegated official will 
withdraw those charges. The action of the General Counsel or other 
delegated official regarding withdrawal of charges is solely that of 
the General Counsel or other delegated official and is not reviewable, 
or subject to consideration in decisions made under Sec. Sec.  404.1770 
and 404.1790. If we withdraw the charges, we will notify the 
representative by mail at the representative's last known address.

0
7. Amend Sec.  404.1765 by revising paragraphs (b)(1), (c), (d)(1) and 
(3), and (g)(1) and (3) to read as follows:


Sec.  404.1765  Hearing on charges.

* * * * *
    (b) Hearing officer. (1) The Deputy Commissioner for the Office of 
Hearings Operations or other delegated official will assign an 
administrative law judge, designated to act as a hearing officer, to 
hold a hearing on the charges.
* * * * *
    (c) Time and place of hearing. The hearing officer will mail the 
parties a written notice of the hearing at their last known addresses, 
at least 14 calendar days before the date set for the hearing. The 
notice will inform the parties whether the appearance of the parties or 
any witnesses will be in person, by video teleconferencing, or by 
telephone. The notice will also include requirements and instructions 
for filing motions, requesting witnesses, and entering exhibits.
    (d) Change of time and place for hearing. (1) The hearing officer 
may change the time and place for the hearing, either on his or her own 
initiative, or at the request of the representative or the other party 
to the hearing. The hearing officer will not consider objections to the 
manner of appearance of parties or witnesses, unless the party shows 
good cause not to appear in the prescribed manner. To determine whether 
good cause exists for extending the deadline, we use the standards 
explained in Sec.  404.911.
* * * * *
    (3) Subject to the limitations in paragraph (g)(2) of this section, 
the hearing officer may reopen the hearing for the receipt of 
additional evidence at any time before mailing notice of the decision.
* * * * *
    (g) Conduct of the hearing. (1) The representative or the other 
party may file a motion for decision on the basis of the record prior 
to the hearing. The hearing officer will give the representative and 
the other party a reasonable amount of time to submit any evidence and 
to file briefs or other written statements as to fact and law prior to 
deciding the motion. If the hearing officer concludes that there is no 
genuine dispute as to any material fact and the movant is entitled to a 
decision as a matter of law, the hearing officer may grant the motion 
and issue a decision in accordance with the provisions of Sec.  
404.1770.
* * * * *
    (3) The hearing officer will make the hearing open to the 
representative, to the other party, and to any persons the hearing 
officer or the parties consider necessary or proper. The hearing 
officer will inquire fully into the matters being considered, hear the 
testimony of witnesses, and accept any documents that are material.
* * * * *

0
8. Revise Sec.  404.1775(b) to read as follows:


Sec.  404.1775   Requesting review of the hearing officer's decision.

* * * * *
    (b) Time and place of filing request for review. The party 
requesting review will file the request for review in writing with the 
Appeals Council within 14 business days from the date the hearing 
officer mailed the notice. The party requesting review will certify 
that a copy of the request for review and of any documents that are 
submitted have been mailed to the opposing party.

0
9. Revise Sec.  404.1780(a) to read as follows:


Sec.  404.1780  Appeals Council's review of hearing officer's decision.

    (a) Upon request, the Appeals Council will give the parties a 
reasonable time to file briefs or other written statements as to fact 
and law, and to request to appear before the Appeals Council to present 
oral argument. When oral argument is requested within the time 
designated by the Appeals Council, the Appeals Council will grant the 
request for oral argument and determine whether the parties will appear 
at the oral argument in person, by video teleconferencing, or by 
telephone. If oral argument is not requested within the time designated 
by the Appeals Council, the Appeals Council may deny the request.
* * * * *

0
10. Revise Sec.  404.1785 to read as follows:


Sec.  404.1785   Evidence permitted on review.

    (a) General. Generally, the Appeals Council will not consider 
evidence in addition to that introduced at the hearing. However, if the 
Appeals Council finds the evidence offered is material to an issue it 
is considering, it may consider that evidence, as described in 
paragraph (b) of this section.
    (b) Individual charged filed an answer. (1) When the Appeals 
Council finds that additional evidence material to the charges is 
available, and the individual charged filed an answer to the charges, 
the Appeals Council will allow the party with the information to submit 
the additional evidence.
    (2) Before the Appeals Council admits additional evidence into the 
record, it will mail a notice to the parties, informing them that 
evidence about certain issues was submitted. The Appeals Council will 
give each party a reasonable opportunity to comment on the evidence and 
to present other evidence that is material to an issue it is 
considering.
    (3) The Appeals Council will determine whether the additional 
evidence warrants a new review by a hearing officer or whether the 
Appeals Council will consider the additional evidence as part of its 
review of the case.
    (c) Individual charged did not file an answer. If the 
representative did not file an answer to the charges, the 
representative may not introduce evidence that was not considered at 
the hearing.

0
11. Amend Sec.  404.1790 by revising paragraph (a) and adding paragraph 
(f) to read as follows:


Sec.  404.1790   Appeals Council's decision.

    (a) The Appeals Council will base its decision upon the evidence in 
the hearing record and any other evidence it may permit on review. The 
Appeals Council will affirm the hearing officer's decision if the 
action, findings, and conclusions are supported by substantial 
evidence. If the hearing officer's decision is not supported by 
substantial evidence, the Appeals Council will either:
    (1) Reverse or modify the hearing officer's decision; or
    (2) Return the case to the hearing officer for further proceedings.
* * * * *
    (f) The Appeals Council may designate and publish certain final 
decisions as precedent for other actions brought under its 
representative conduct provisions. Prior to making a decision public, 
we will remove or

[[Page 30857]]

redact personally identifiable information from the decision.

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12. Amend Sec.  404.1799 by revising paragraphs (a), (d)(2), and (f) to 
read as follows:


Sec.  404.1799  Reinstatement after suspension or disqualification--
period of suspension not expired.

    (a) After more than one year has passed, a person who has been 
suspended or disqualified may ask the Appeals Council for permission to 
serve as a representative again. The Appeals Council will assign and 
process a request for reinstatement using the same general procedures 
described in Sec.  404.1776.
* * * * *
    (d) * * *
    (2) If a person was disqualified because he or she had been 
disbarred, suspended, or removed from practice for the reasons 
described in Sec.  404.1745(d) through (f), 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, bar, Federal 
program or agency, or other governmental or professional licensing 
authority from which he or she had been disbarred, suspended, or 
removed from practice.
* * * * *
    (f) If the Appeals Council decides not to grant the request, it 
will not consider another request before the end of 3 years from the 
date of the notice of the previous denial.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart O--[Amended]

0
13. The authority citation for subpart O of part 416 continues to read 
as follows:

    Authority: Secs. 702(a)(5), 1127, and 1631(d) of the Social 
Security Act (42 U.S.C. 902(a)(5), 1320a-6, and 1383(d)).

0
14. Revise Sec.  416.1505(b) to read as follows:


Sec.  416.1505   Who may be your representative.

* * * * *
    (b) You may appoint any person who is not an attorney to be your 
representative in dealings with us if the person--
    (1) Is capable of giving valuable help to you in connection with 
your claim;
    (2) Is not disqualified or suspended from acting as a 
representative in dealings with us;
    (3) Is not prohibited by any law from acting as a representative; 
and
    (4) Is generally known to have a good character and reputation. 
Persons lacking good character and reputation, include, but are not 
limited to, persons who have a final conviction of a felony (as defined 
by Sec.  404.1506(c) of this chapter), or any crime involving moral 
turpitude, dishonesty, false statement, misrepresentations, deceit, or 
theft.
* * * * *

0
15. Amend Sec.  416.1540 follows:
0
a. Revise paragraphs (b)(2)(vii) and (b)(3);
0
b. Add paragraphs (b)(5) through (10);
0
c. Revise paragraphs (c)(1) through (6) and (c)(7)(ii);
0
d. Remove paragraph (c)(7)(iii);
0
e. Revise paragraphs (c)(8) through (13); and
0
f. Add paragraph (c)(14).
    The revisions and additions read as follows:


Sec.  416.1540   Rules of conduct and standards of responsibility for 
representatives.

* * * * *
    (b) * * *
    (2) * * *
    (vii) Any other factors showing how the claimant's impairment(s) 
affects his or her ability to work. In Sec. Sec.  416.960 through 
416.969a, we discuss in more detail the evidence we need when we 
consider vocational factors.
    (3) Conduct his or her dealings in a manner that furthers the 
efficient, fair, and orderly conduct of the administrative decision-
making process, including duties to:
    (i) Provide competent representation to a claimant. Competent 
representation requires the knowledge, skill, thoroughness, and 
preparation reasonably necessary for the representation. A 
representative must know the significant issue(s) in a claim, have 
reasonable and adequate familiarity with the evidence in the case, and 
have a working knowledge of the applicable provisions of the Social 
Security Act, as amended, the regulations, the Social Security Rulings, 
and any other applicable provisions of law.
    (ii) Act with reasonable diligence and promptness in representing a 
claimant. This includes providing prompt and responsive answers to our 
requests for information pertinent to processing of the claim.
    (iii) When requested, provide us, in a manner we specify, potential 
dates and times that the representative will be available for a 
hearing. We will inform the representative how many potential dates and 
times we require to coordinate the hearing schedule.
    (iv) Only withdraw representation at a time and in a manner that 
does not disrupt the processing or adjudication of a claim and that 
provides the claimant adequate time to find new representation, if 
desired. A representative should not withdraw after we set the time and 
place for the hearing (see Sec.  416.1436) unless the representative 
can show that a withdrawal is necessary due to extraordinary 
circumstances, as we determine on a case-by-case basis.
    (v) Maintain prompt and timely communication with the claimant, 
which includes, but is not limited to, reasonably informing the 
claimant of all matters concerning the representation, consulting with 
the claimant on an ongoing basis during the entire representational 
period, and promptly responding to a claimant's reasonable requests for 
information. When we evaluate whether a representative has maintained 
prompt and timely communication with the claimant, we will consider the 
difficulty the representative has in locating a particular claimant 
(e.g., because the claimant is homeless) and the representative's 
efforts to keep that claimant informed.
* * * * *
    (5) Disclose in writing, at the time a medical or vocational 
opinion is submitted to us or as soon as the representative is aware of 
the submission to us, if:
    (i) The representative's employee or any individual contracting 
with the representative drafted, prepared, or issued the medical or 
vocational opinion; or
    (ii) The representative referred or suggested that the claimant 
seek an examination from, treatment by, or the assistance of, the 
individual providing opinion evidence.
    (6) Disclose to us immediately if the representative discovers that 
his or her services are or were used by the claimant to commit fraud 
against us.
    (7) Disclose to us whether the representative is or has been 
disbarred or suspended from any bar or court to which he or she was 
previously admitted to practice, including instances in which a bar or 
court took administrative action to disbar or suspend the 
representative in lieu of disciplinary proceedings (e.g. acceptance of 
voluntary resignation pending disciplinary action). If the disbarment 
or suspension occurs after the appointment of the representative, the 
representative will immediately disclose the disbarment or suspension 
to us.

[[Page 30858]]

    (8) Disclose to us whether the representative is or has been 
disqualified from participating in or appearing before any Federal 
program or agency, including instances in which a Federal program or 
agency took administrative action to disqualify the representative in 
lieu of disciplinary proceedings (e.g. acceptance of voluntary 
resignation pending disciplinary action). If the disqualification 
occurs after the appointment of the representative, the representative 
will immediately disclose the disqualification to us.
    (9) Disclose to us whether the representative has been removed from 
practice or suspended by a professional licensing authority for reasons 
that reflect on the person's character, integrity, judgment, 
reliability, or fitness to serve as a fiduciary. If the removal or 
suspension occurs after the appointment of the representative, the 
representative will immediately disclose the removal or suspension to 
us.
    (10) Ensure that all of the representative's employees, assistants, 
partners, contractors, or any person assisting the representative on 
claims for which the representative has been appointed, comply with 
these rules of conduct and standards of responsibility for 
representatives, when the representative has managerial or supervisory 
authority over these individuals or otherwise has responsibility to 
oversee their work. This includes a duty to take remedial action when:
    (i) The representative's employees, assistants, partners, 
contractors or other individuals' conduct violates these rules of 
conduct and standards of responsibility; and
    (ii) The representative has reason to believe a violation of these 
rules of conduct and standards of responsibility occurred or will 
occur.
    (c) * * *
    (1) In any manner or by any means threaten, coerce, intimidate, 
deceive or knowingly mislead a claimant, or prospective claimant or 
beneficiary, regarding benefits or other rights under the Act. This 
prohibition includes misleading a claimant, or prospective claimant or 
beneficiary, about the representative's services and qualifications.
    (2) Knowingly charge, collect or retain, or make any arrangement to 
charge, collect or retain, from any source, directly or indirectly, any 
fee for representational services in violation of applicable law or 
regulation. This prohibition includes soliciting any gift or any other 
item of value, other than what is authorized by law.
    (3) Make or present, or participate in the making or presentation 
of, false or misleading oral or written statements, evidence, 
assertions, or representations about a material fact or law concerning 
a matter within our jurisdiction, in matters where the representative 
knows or should have known that those statements, evidence, assertions 
or representations are false or misleading.
    (4) Through his or her own actions or omissions, unreasonably delay 
or cause to be delayed, without good cause (see Sec.  416.1411(b)), the 
processing of a claim at any stage of the administrative decision-
making process.
    (5) Divulge, without the claimant's consent, except as may be 
authorized by regulations prescribed by us or as otherwise provided by 
Federal law, any information we furnish or disclose about a claim or 
prospective claim.
    (6) Attempt to influence, directly or indirectly, the outcome of a 
decision, determination, or other administrative action by any means 
prohibited by law, or offering or granting a loan, gift, entertainment, 
or anything of value to a presiding official, agency employee, or 
witness who is or may reasonably be expected to be involved in the 
administrative decision-making process, except as reimbursement for 
legitimately incurred expenses or lawful compensation for the services 
of an expert witness retained on a non-contingency basis to provide 
evidence.
    (7) * * *
    (ii) Behavior that has the effect of improperly disrupting 
proceedings or obstructing the adjudicative process, including but not 
limited to:
    (A) Directing threatening or intimidating language, gestures, or 
actions at a presiding official, witness, contractor, or agency 
employee;
    (B) Providing misleading information or misrepresenting facts that 
affect how we process a claim, including, but not limited to, 
information relating to the claimant's work activity or the claimant's 
place of residence or mailing address in matters where the 
representative knows or should have known that the information was 
misleading and the facts would constitute a misrepresentation; and
    (C) Communicating with agency staff or adjudicators outside the 
normal course of business or other prescribed procedures in an attempt 
to inappropriately influence the processing or outcome of a claim(s).
    (8) Violate any section of the Act for which a criminal or civil 
monetary penalty is prescribed.
    (9) Refuse to comply with any of our rules or regulations.
    (10) Suggest, assist, or direct another person to violate our rules 
or regulations.
    (11) Advise any claimant or beneficiary not to comply with any of 
our rules or regulations.
    (12) Knowingly assist a person whom we suspended or disqualified to 
provide representational services in a proceeding under title XVI of 
the Act, or to exercise the authority of a representative described in 
Sec.  416.1510.
    (13) Fail to comply with our sanction(s) decision.
    (14) Fail to oversee the representative's employees, assistants, 
partners, contractors, or any other person assisting the representative 
on claims for which the representative has been appointed when the 
representative has managerial or supervisory authority over these 
individuals or otherwise has responsibility to oversee their work.

0
16. Amend Sec.  416.1545 by revising paragraphs (d) and (e) and adding 
paragraph (f) to read as follows:


Sec.  416.1545   Violations 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));
    (e) Has been, by reason of misconduct, disqualified from 
participating in or appearing before any Federal program or agency (see 
Sec.  416.1570(a)); or
    (f) Who, as a non-attorney, has been removed from practice or 
suspended by a professional licensing authority for reasons that 
reflect on the person's character, integrity, judgment, reliability, or 
fitness to serve as a fiduciary.

0
17. Amend Sec.  416.1550 by revising paragraphs (c), (d), (e)(2), and 
(f) to read as follows:


Sec.  416.1550   Notice of charges against a representative.

* * * * *
    (c) We will advise the representative to file an answer, within 14 
business days from the date of the notice, or from the date the notice 
was delivered personally, stating why he or she should not be suspended 
or disqualified from acting as a representative in dealings with us.
    (d) The General Counsel or other delegated official may extend the 
14-day period specified in paragraph (c) of this section for good cause 
in accordance with Sec.  416.1411.
    (e) * * *
    (2) File the answer with the Social Security Administration, at the 
address

[[Page 30859]]

specified on the notice, within the 14-day time period specified in 
paragraph (c) of this section.
    (f) If the representative does not file an answer within the 14-day 
time period specified in paragraph (c) of this section (or the period 
extended in accordance with paragraph (d) of this section), he or she 
does not have the right to present evidence, except as may be provided 
in Sec.  416.1565(g).

0
18. Revise Sec.  416.1555 to read as follows:


Sec.  416.1555   Withdrawing charges against a representative.

    The General Counsel or other delegated official may withdraw 
charges against a representative. We will withdraw charges if the 
representative files an answer, or we obtain evidence, that satisfies 
us that we should not suspend or disqualify the representative from 
acting as a representative. When we consider withdrawing charges 
brought under Sec.  416.1545(d) through (f) based on the 
representative's assertion that, before or after our filing of charges, 
the representative has been reinstated to practice by the court, bar, 
or Federal program or Federal agency that suspended, disbarred, or 
disqualified the representative, the General Counsel or other delegated 
official will determine whether such reinstatement occurred, whether it 
remains in effect, and whether he or she is reasonably satisfied that 
the representative will in the future act in accordance with the 
provisions of section 206(a) of the Act and our rules and regulations. 
If the representative proves that reinstatement occurred and remains in 
effect and the General Counsel or other delegated official is so 
satisfied, the General Counsel or other delegated official will 
withdraw those charges. The action of the General Counsel or other 
delegated official regarding withdrawal of charges is solely that of 
the General Counsel or other delegated official and is not reviewable, 
or subject to consideration in decisions made under Sec. Sec.  416.1570 
and 416.1590. If we withdraw the charges, we will notify the 
representative by mail at the representative's last known address.

0
19. Amend Sec.  416.1565 by revising paragraphs (b)(1), (c), (d)(1) and 
(3), and (g)(1) and (3) as follows:


Sec.  416.1565   Hearing on charges.

* * * * *
    (b) Hearing officer. (1) The Deputy Commissioner for the Office of 
Hearings Operations or other delegated official will assign an 
administrative law judge, designated to act as a hearing officer, to 
hold a hearing on the charges.
* * * * *
    (c) Time and place of hearing. The hearing officer shall mail the 
parties a written notice of the hearing at their last known addresses, 
at least 14 calendar days before the date set for the hearing. The 
notice will inform the parties whether the appearance of the parties or 
any witnesses will be in person, by video teleconferencing, or by 
telephone. The notice will also include requirements and instructions 
for filing motions, requesting witnesses, and entering exhibits.
    (d) Change of time and place for hearing. (1) The hearing officer 
may change the time and place for the hearing, either on his or her own 
initiative, or at the request of the representative or the other party 
to the hearing. The hearing officer will not consider objections to the 
manner of appearance of parties or witnesses, unless the party shows 
good cause not to appear in the prescribed manner. To determine whether 
good cause exists for extending the deadline, we use the standards 
explained in Sec.  416.1411.
* * * * *
    (3) Subject to the limitations in paragraph (g)(2) of this section, 
the hearing officer may reopen the hearing for the receipt of 
additional evidence at any time before mailing notice of the decision.
* * * * *
    (g) Conduct of the hearing. (1) The representative or the other 
party may file a motion for decision on the basis of the record prior 
to the hearing. The hearing officer will give the representative and 
the other party a reasonable amount of time to submit any evidence and 
to file briefs or other written statements as to fact and law prior to 
deciding the motion. If the hearing officer concludes that there is no 
genuine dispute as to any material fact and the movant is entitled to a 
decision as a matter of law, the hearing officer may grant the motion 
and issue a decision in accordance with the provisions of Sec.  
416.1570.
* * * * *
    (3) The hearing officer will make the hearing open to the 
representative, to the other party, and to any persons the hearing 
officer or the parties consider necessary or proper. The hearing 
officer will inquire fully into the matters being considered, hear the 
testimony of witnesses, and accept any documents that are material.
* * * * *

0
20. Revise Sec.  416.1575(b) to read as follows:


Sec.  416.1575   Requesting review of the hearing officer's decision.

* * * * *
    (b) Time and place of filing request for review. The party 
requesting review will file the request for review in writing with the 
Appeals Council within 14 business days from the date the hearing 
officer mailed the notice. The party requesting review will certify 
that a copy of the request for review and of any documents that are 
submitted have been mailed to the opposing party.

0
21. Revise Sec.  416.1580(a) to read as follows:


Sec.  416.1580   Appeals Council's review of hearing officer's 
decision.

    (a) Upon request, the Appeals Council will give the parties a 
reasonable time to file briefs or other written statements as to fact 
and law, and to request to appear before the Appeals Council to present 
oral argument. When oral argument is requested within the time 
designated by the Appeals Council, the Appeals Council will grant the 
request for oral argument and determine whether the parties will appear 
at the oral argument in person, by video teleconferencing, or by 
telephone. If oral argument is not requested within the time designated 
by the Appeals Council, the Appeals Council may deny the request.
* * * * *

0
22. Revise Sec.  416.1585 to read as follows:


Sec.  416.1585   Evidence permitted on review.

    (a) General. Generally, the Appeals Council will not consider 
evidence in addition to that introduced at the hearing. However, if the 
Appeals Council finds the evidence offered is material to an issue it 
is considering, it may consider that evidence, as described in 
paragraph (b) of this section.
    (b) Individual charged filed an answer. (1) When the Appeals 
Council finds that additional evidence material to the charges is 
available, and the individual charged filed an answer to the charges, 
the Appeals Council will allow the party with the information to submit 
the additional evidence.
    (2) Before the Appeals Council admits additional evidence into the 
record, it will mail a notice to the parties, informing them that 
evidence about certain issues was submitted. The Appeals Council will 
give each party a reasonable opportunity to comment on the evidence and 
to present other evidence that is material to an issue it is 
considering.
    (3) The Appeals Council will determine whether the additional

[[Page 30860]]

evidence warrants a new review by a hearing officer or whether the 
Appeals Council will consider the additional evidence as part of its 
review of the case.
    (c) Individual charged did not file an answer. If the 
representative did not file an answer to the charges, the 
representative may not introduce evidence that was not considered at 
the hearing.

0
23. Amend Sec.  416.1590 by revising paragraph (a) and adding paragraph 
(f) to read as follows:


Sec.  416.1590   Appeals Council's decision.

    (a) The Appeals Council will base its decision upon the evidence in 
the hearing record and any other evidence it may permit on review. The 
Appeals Council will affirm the hearing officer's decision if the 
action, findings, and conclusions are supported by substantial 
evidence. If the hearing officer's decision is not supported by 
substantial evidence, the Appeals Council will either:
    (1) Reverse or modify the hearing officer's decision; or
    (2) Return a case to the hearing officer for further proceedings.
* * * * *
    (f) The Appeals Council may designate and publish certain final 
decisions as precedent for other actions brought under its 
representative conduct provisions. Prior to making a decision public, 
we will remove or redact personally identifiable information from the 
decision.

0
24. Amend Sec.  416.1599 by revising paragraphs (a), (d)(2), and (f) to 
read as follows:


Sec.  416.1599   Reinstatement after suspension or disqualification--
period of suspension not expired.

    (a) After more than one year has passed, a person who has been 
suspended or disqualified may ask the Appeals Council for permission to 
serve as a representative again. The Appeals Council will assign and 
process a request for reinstatement using the same general procedures 
described in Sec.  416.1576.
* * * * *
    (d) * * *
    (2) If a person was disqualified because he or she had been 
disbarred, suspended, or removed from practice for the reasons 
described in Sec.  416.1545(d) through (f), 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, bar, Federal 
program or agency, or other governmental or professional licensing 
authority from which he or she had been disbarred, suspended, or 
removed from practice.
* * * * *
    (f) If the Appeals Council decides not to grant the request, it 
will not consider another request before the end of 3 years from the 
date of the notice of the previous denial.
[FR Doc. 2018-13989 Filed 6-29-18; 8:45 am]
 BILLING CODE 4191-02-P