Federal Register: July 2, 2004 (Volume 69, Number 127)
DOCID: FR Doc 04-15077
SOCIAL SECURITY ADMINISTRATION
Social Security Administration
CFR Citation: 20 CFR Part 404 and Part 416
RIN ID: RIN 0960-AF85
DOCUMENT ID: [Regulations Nos. 4 and 16]
NOTICE: PROPOSED RULES
ACTION: Social security benefits and supplemental security income:
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY:
Mandatory Exclusion of Health Care Providers and Representatives From Participating in Programs Administered by the Social Security Administration, Including Representative Payment
DATES: To be sure your comments are considered, we must receive them by August 31, 2004.
DOCUMENT SUMMARY:
This proposed rule creates a new administrative procedure requiring the Social Security Administration (SSA) to exclude representatives and health care providers who are convicted of fraud in the title II or title XVI disability programs administered by SSA or who are assessed civil monetary penalties from further participation in those programs for at least five years. The Foster Care Independence Act of 1999 amended the Social Security Act and requires SSA to create an administrative procedure for imposing penalties for false or misleading statements. This proposed rule will exclude those representatives and health care providers from participating in the programs and from serving as a representative payee.
SUMMARY:
Federal old age, survivors, and disability insurance, and aged, blind, and disabled—; Mandatory exclusion of health care providers and representatives from participating in disability programs,
SUPPLEMENTAL INFORMATION
Background
There is no provision under the present law to exclude representatives and health care providers convicted of violations from further participation in Social Security programs. Social Security and Supplemental Security Income (SSI) law stipulate that anyone who knowingly or willfully makes, or causes to be made, any false statements or misrepresentations in applying for or continuing to receive Social Security or SSI payments shall be fined under title 18 of the U.S.C., imprisoned for not more than five years or both. Federal law also provides that any person who makes, or causes to be made, a statement or representation of material fact for use in any initial or continuing review of an individual's eligibility for Social Security disability benefits (title II) or Supplemental Security Income (SSI) (title XVI) benefits that the person knows or should know is false or misleading or omits a material fact or makes such a statement with knowing disregard for the truth is subject to a civil penalty of not more than $5,000 for each such statement or representation plus up to twice the value of the amount paid fraudulently.
Fraud prevention is a top priority of the Social Security Administration. Professionals and others who play a role in helping individuals apply for Social Security and SSI have a special responsibility to maintain high standards of truthfulness. The evidence, opinion, advice and recommendations they provide are often crucial to the eligibility determination process. Thus, any such representative or health care provider who gives false or misleading information or otherwise commits fraud as part of the eligibility determination must be subject to serious penalties. This is especially the case since experience shows that some of these individuals commit fraud in many cases, thereby resulting in substantial sums of money being paid fraudulently to numerous recipients. For instance, in December 1997, a cooperative team, consisting of members from the SSA, the Office of the Inspector General (OIG) and the State Disability Determination Service (DDS), conducted a joint vulnerability review of an extended family in a small Georgia town. There were 181 members of this family, which spanned 4 generations, receiving benefits under title XVI of the Social Security Act (the Act). The same medical provider was the treating source and conducted consultative examinations (CEs) for many of these family members. The findings of the review resulted in the creation of Cooperative Disability Investigation (CDI) units in several major cities. The IG reported on February 3, 1999, in his testimony to the Subcommittee on Human Resources that the CDIs have produced data that illustrate the need to sanction thirdparty facilitators who engage in fraudulent activities, as many of the allegations involved thirdparty facilitators such as physicians, lawyers, interpreters, and other service providers. The 1998 GAO report, ``Supplementary Security Income: Action Needed on LongStanding Problems Affecting Program Integrity,'' GAO/HHS98158, also found that the title XVI program was vulnerable to fraud and abuse.
We believe those representatives and health care providers who commit fraud or make false statements in any of the SSA administered programs should have administrative sanctions applied and be excluded from participating in any SSA program.
For these reasons, we propose to add a new section in both part 404 subpart P and part 416 subpart I to exclude representatives and health care providers who have committed fraud in any program administered by SSA from further participation in these programs for a period of at least five years.
Purposes of Administrative Sanctions
Administrative sanctions are civil remedies that agencies impose
under their own authority to protect their programs from transactions with untrustworthy individuals or entities
[[Page 40339]]
and to recover program funds paid improperly or fraudulently. Because
administrative sanctions are not considered to be ``punitive,'' they
can, and frequently are, imposed in addition to other remedies, such as criminal or civil judicial action.
The administrative sanction we propose to use in this rule is
exclusion. We define exclusion as removing an individual or entity from
participation in a program for a designated period of time, or permanently, after a due process proceeding.
Administrative Exclusion of Health Care Providers and Representatives
The principal objective of administrative sanctions activities will be to protect the integrity of the benefit programs SSA administers by excluding health care providers and representatives whose conduct indicates that they pose a threat to the integrity of SSA's programs. Excluded health care providers and representatives will be prohibited from serving as a representative payee. Excluded health care providers will be prohibited from supplying consultative examinations used to document the existence of impairments. All medical records produced by excluded parties resulting from treatment of individuals will be barred from use in the SSA disability evaluation process as of the date the exclusion takes effect. The public will be notified of the exclusion of health care providers and representatives. Medical records produced as result of treatment by the excluded providers will not be admitted as evidence to support a claim for benefits on account of disability. Length of Exclusion
This proposed rule establishes a minimum 5year period of mandatory exclusion for one infraction, a 10year exclusion for two infractions, and permanent exclusion for three or more infractions. The time period of an exclusion will be based on Federal fraud convictions and/or the imposition of administrative penalties under section 1129a of the Act. This proposed rule also adopts the practice of using specific factors to determine whether a permanent exclusion should be imposed. Program exclusion will be in addition to any penalties based on SSA's or another agency's actions. Individuals or entities subject to a proposed mandatory exclusion will receive a 30day advance notice of the impending exclusion and may challenge SSA's action by submitting information and arguments on their behalf (see sec. 205(b) of the Act). The proposed exclusion can be withdrawn only if the basis for it no longer exists, such as when a conviction is reversed on appeal, or the proposed subject is incorrectly identified.
Waiver of Exclusion
This proposed rule contains a limited waiver provision. The waiver would allow a party who meets the criteria for exclusion to continue to represent or provide health care to those who apply for benefits payable under title II and XVI of the Act only in cases where that party is the sole source of essential specialized services in the geographical area described in the proposed rule. This is being done so as not to disadvantage persons who live in sparsely populated rural areas. The Commissioner's waiver decision is not subject to review. Regulatory Procedures
Clarity of These Proposed Rules
Executive Order 12866 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 proposed rules easier to understand.
For example:
Executive Order 12866
The Office of Management and Budget (OMB) has reviewed these proposed rules in accordance with Executive Order 12866, as amended by Executive Order 13258.
Regulatory Flexibility Act
We certify that these proposed rules would not have a significant economic impact on a substantial number of small entities because they would affect only individuals. Thus, a regulatory flexibility analysis as provided for in the Regulatory Flexibility Act, as amended, is not required.
Paperwork Reduction Act
These proposed rules contain reporting requirements as shown in the following table.
Average burden Estimated
Section Annual number Frequency of per response annual burden
of responses responses (minutes) (hours)
20 CFR 404.1503b 416.903b................... 35 1 30 2\1/2\
An Information Collection Request has been submitted to OMB for
clearance. We are soliciting comments 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. Comments should be mailed or
faxed to the Office of Management and Budget and to the Social Security Administration at the following addresses/fax numbers:
Office of Management and Budget, Attn: Desk Officer for SSA, New
Executive Office Building, Room 10235, 725 17th Street, NW., Washington, DC 20503, Fax Number: 2023956974.
Social Security Administration, Attn: SSA Reports Clearance Officer,
Rm. 1338 Annex Building, 6401 Security Boulevard, Baltimore, MD 21235 6401, Fax Number: 4109656400.
Comments can be received for between 30 and 60 days after publication
of this notice and will be most useful if received by SSA within 30 days of publication.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security Disability Insurance; 96.002, Social Security Retirement Insurance; 96.004, Social Security
[[Page 40340]]
Survivors Insurance; and 96.006, Supplemental Security Income) List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits, OldAge, 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).
Dated: April 7, 2004.
Jo Anne B. Barnhart,
Commissioner of Social Security.
For the reasons set forth in the preamble, we propose to amend
subpart P of part 404 and subpart I of Part 416 of chapter III of title 20 of the Code of Federal Regulations as set forth below.
PART 404FEDERAL OLDAGE, SURVIVORS AND DISABILITY INSURANCE (1950 )
Subpart P[Amended]
1. The authority citation for Subpart P of part 404 continues to read as follows:
Authority: Secs. 202, 205(a), (b), and (d)(h), 216(i), 221(a) and (i), 222(c), 223, 225 and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a), (b), and (d)(h), 416(i), 421(a) and (i), 422(c), 423, 425, and 902(a)(5); sec. 211(b), Pub. L. 104193, 110 Stat. 2105, 2189.
2. Add a new Sec. 404.1503b to read as follows:
Sec. 404.1503b Mandatory exclusion of health care providers and
representatives from participating in SSA programs including serving as a representative payee.
(a) Reasons for mandatory exclusions. We will exclude from
participation in social security programs any representative or health care provider who, on or after December 14, 1999:
(1) Has been convicted of a violation of section 208 or section 1632 of the Act;
(2) Has been convicted of any violation under title 18, U.S.C.,
relating to an initial application for or continuing entitlement to, or
amount of, benefits under title II of the Act or an initial application
for or continuing eligibility for, or amount of, benefits under title XVI of the Act; or
(3) Has been determined by the Commissioner to have committed an offense described in section 1129(a)(1) of the Act.
(b) Effect of exclusion on the individual. When we exclude an individual, we will prohibit that individual from:
(1) Acting as a medical source who provides items or services for
claimants or beneficiaries for the purpose of assisting claimants or beneficiaries to demonstrate that they are disabled;
(2) Being appointed or recognized as a representative of claimants
or beneficiaries, in dealings with us, under subpart R of this part and subpart O of part 416; and
(3) Being selected in the future, or from continuing to act as a
representative payee, under subpart U of this part and subpart F of part 416.
(c) Effect of exclusion on information or evidence from health care
providers. Beginning with the effective date of the exclusion, we will
not consider the provider's medical source statements, opinions on
issues reserved to the Commissioner, or other evidence prepared for the
purpose of assisting a claimant or beneficiary in demonstrating
disability. We will consider information or evidence derived from the
services of an excluded medical source only when those services were rendered before the effective date of the exclusion.
(d) Effect of exclusion on the records of the excluded
representative. An exclusion under this section will not be construed
as having the effect of limiting access by a claimant, beneficiary,
State disability determination agency, or us to records maintained by
the excluded representative for services provided to a claimant or beneficiary before the effective date of an exclusion.
(e) Length of exclusion. We will exclude an individual for a period of five years, ten years or permanently.
(1) The minimum length of time for an exclusion will be:
(i) Five years if an individual has been subject to one excluding event as stated in paragraph (a) of this section;
(ii) Ten years if an individual has been subject to two separate
excluding events as stated in paragraph (a) of this section (one of
those events may have occurred before December 14, 1999); and
(iii) Permanent exclusion if an individual has been subject to
three or more excluding events as stated in paragraph (a) of this
section (one or two of those events may have occurred before December 14, 1999).
(2) Notwithstanding the time periods set forth in paragraph (e)(1)
of this section, we shall impose a permanent exclusion upon the first
or second excluding event if two or more of the following exist:
(i) The criminal sentence is for five or more years of incarceration and/or probation;
(ii) The criminal sentence includes payment of restitution to us in an amount equal to or more than $30,000;
(iii) The criminal conviction includes five or more separate violations of law;
(iv) The assessment of civil monetary penalties is equal to or more than $50,000;
(v) The assessment of civil monetary penalties was based on five or more violations of law;
(vi) The individual has been convicted of fraud, making false
statements, or misrepresentations in any other government program or
has been administratively determined to have committed such acts;
(vii) A State licensing authority has revoked or suspended any
license issued to the individual in the past for fraud, false statements or misrepresentations; or
(viii) The individual failed to comply with Sec. 404.1503b(v).
(f) Exclusion determination. The Inspector General is responsible
for providing us with pertinent documentation regarding the excluding
event within 45 days of the conviction or of the date upon which the
determination under section 1129a of the Act becomes final. The
information supplied by the Inspector General should, whenever
practical, include the charging documents, plea agreements, agreements
for deferred adjudication or pretrial diversion, judgments of
conviction, and in cases decided under section 1129a of the Act, a copy
of the final decision that imposes civil monetary penalties. When we
obtain evidence that an individual meets one or more of the criteria in
paragraph (a) of this section, we will make a proposed determination to exclude that individual.
(1) We will use all of the information that we have collected.
(2) Based on this information, we will prepare a proposed
determination that explains the reasons why we believe the individual
should be excluded. Once we determine that the individual meets the
criteria for exclusion, we will provide the individual with notice of
the date on which the exclusion takes effect. We will also notify the
individual of his or her right to appeal the determination to an
administrative law judge and his or her right to request waiver of the exclusion.
(3) The exclusion determination will become effective 35 days after it is issued unless a request for hearing is
[[Page 40341]]
filed as described in paragraph (i) of this section or a request for waiver is made.
(4) If the individual requests a waiver of the proposed exclusion,
that individual must submit to us a written statement and any relevant
documentary evidence as required in paragraph (h) of this section. The
statement and evidence to support the request for waiver must be
submitted within 30 days of receiving the notice of proposed exclusion.
We assume that the individual will receive the notice five days after the date that the notice of proposed exclusion is mailed.
(g) Notice of proposed exclusion. We will send the notice of
proposed exclusion to the individual's last known address by certified mail. This notice will provide the following information:
(1) The basis for exclusion;
(2) The effect of the exclusion;
(3) The proposed effective date of the exclusion;
(4) The proposed period of exclusion; and
(5) The procedure and timeframe by which the individual may object
to the exclusion and submit a written statement and relevant documents.
(h) Waiver of exclusion. We may waive the exclusion of an
individual if we determine that he or she is the sole source of
essential services in a community. We will consider only the location
in which the infraction(s) took place in our determination. We will not
consider situations where the party has moved to a remote location
after the excluding event. Our decision concerning waiver of the exclusion shall not be subject to review.
(i) Right to a hearing before an administrative law judge. If an
excluded individual is dissatisfied with our determination to exclude,
the individual may request a hearing. The Associate Commissioner for
Hearings and Appeals, or his or her delegate, will appoint an administrative law judge to conduct the hearing.
(1) The request for a hearing must be made within 30 days of the
date that the excluded individual receives the determination to exclude.
(2) The individual must submit, with the request for a hearing, all
exhibits that the individual wants to be received into the record, a
list of any witnesses whom the individual intends to call at the hearing, and a statement of the issues being raised.
(3) A failure to submit a timely request for hearing, evidence, or
witness list may be excused for good cause. If there is an untimely
submission of a request for hearing and the administrative law judge
does not find that there is good cause to excuse the untimely filing,
the administrative law judge will dismiss the request for hearing. If
there is an untimely submission of evidence or a witness list and the
administrative law judge finds that there is no good cause to excuse
the untimely filing, the administrative law judge will not enter such
evidence into the record and will not permit the witnesses to testify at the hearing.
(j) Disqualification of administrative law judge. An administrative
law judge shall not conduct a hearing if he or she is prejudiced or
partial with respect to any party or has any interest in the matter
pending for decision. The excluded individual has the right to object
to the administrative law judge assigned to hear the individual's
appeal. The individual must inform the administrative law judge, in
writing and at his or her earliest opportunity, of the objection. The
administrative law judge will consider the objection and decide whether
to proceed with the hearing or withdraw. If he or she withdraws, the
Associate Commissioner for Hearings and Appeals, or his or her
delegate, will appoint another administrative law judge to conduct the hearing.
(k) Issue before the administrative law judge. The administrative
law judge may only decide whether the basis for an individual's
exclusion exists and whether the length of exclusion meets the
requirements of paragraph (e) of this section. The administrative law
judge has no authority to review the factual or legal conclusions of
the conviction or determination that is the basis for the determination to exclude.
(l) Prehearing procedures. An administrative law judge may dismiss
any hearing request that fails to state either an issue of disputed
material fact or law regarding a matter that is subject to review;
i.e., whether the underlying conviction or civil monetary penalty
exist. If the individual's hearing request and supporting documentation
does not reveal the existence of a material factual or legal dispute,
the administrative law judge will issue an order to show cause why the
hearing request should not be dismissed. The individual must respond to
the order to show cause 30 days from the date of receipt, which will be
presumed to be five calendar days from the date of mailing. The
administrative law judge will decide whether a material factual or
legal dispute exists and will either dismiss the hearing request or set a date for the hearing.
(m) Hearing procedures. The procedures in Sec. Sec. 404.936
404.938, 404.944, 404.948404.949, 404.950(ce), 404.953(a), and 404.957(ab), 404.961 will apply to the hearing before the
administrative law judge. If the administrative law judge dismisses a
case, the administrative law judge may, within 60 days of the dismissal, vacate such dismissal if good cause exists.
(n) Appeals Council review. The Appeals Council may, on its own
motion and within 60 days of the issuance of an administrative law
judge's decision or dismissal, initiate review of the administrative
law judge's decision or dismissal. We or the excluded individual may
request the Appeals Council to exercise its authority to take own
motion review. Sections 404.970(a), 404.973404.975, 404.976(a) and
(b)(2), will apply to the Appeals Council review of an administrative
law judge's decision or dismissal. The Appeals Council will issue a
decision or remand the case to the administrative law judge. The
Appeals Council may affirm, modify, or reverse the administrative law
judge's decision. A copy of the Appeals Council's decision will be sent
to the excluded individual at his or her last known address.
(o) Effect of Appeals Council review on exclusion. Unless the
Appeals Council reviews the decision or dismissal, the administrative
law judge's decision or dismissal shall become the Commissioner's final
decision 60 days after it is issued. If the Appeals Council decides to
review the administrative law judge's decision within 60 days from the
date it is issued, and the Appeals Council issues a decision, it will become the Commissioner's final decision.
(p) Judicial review. The excluded individual has the right to file
a civil action in a Federal district court within 60 days of the date
of the Commissioner's final decision. The excluded individual shall
serve a copy of any civil action on the Commissioner at 6401 Security
Boulevard, Baltimore, Maryland 212356401. Sections 404.983404.984 will apply to any cases remanded by a Federal court.
(q) Termination of exclusion. (1) An individual excluded from
participation under this section may request that we terminate an exclusion:
(i) At the end of the minimum period of exclusion;
(ii) If the individual becomes the sole source of essential services in a community; or
(iii) If the judgement or conviction that is the basis of the exclusion is set aside or expunged.
(2) We may terminate the exclusion if we determine, based on the
conduct of the excluded individual that occurred after the date of the
notice of exclusion, or which was unknown to us at the time of the exclusion, that:
[[Page 40342]]
(i) There is no basis for a continuation of the exclusion; and
(ii) There are reasonable assurances that the types of actions that
formed the basis for the original exclusion have not recurred and will not recur.
(3) Our decision regarding termination of exclusion is not subject to review.
(r) Penalties are not exclusive. Exclusion imposed under this
section is in addition to any other penalties or sanctions prescribed by law.
(s) Notice to State agencies and the public. (1) We will notify the
State agencies employed for the purpose of making disability
determinations of the exclusion of an individual from participating in
Social Security programs when the Commissioner has issued a final
decision to exclude. We will provide the following information:
(i) The facts and circumstances of the exclusion of the individual; and
(ii) The period that the exclusion will be in effect.
(2) We will also notify the state agencies of the fact and
circumstances of each termination of exclusion made under paragraph (q)
of this section. We will also provide the public with appropriate
notice of individuals or entities who have been excluded from participation in our programs.
(t) Notice to State licensing authorities. We will notify
appropriate State or local licensing agencies or other licensing
authorities when the Commissioner has issued a final decision to
exclude. We will provide those agencies or authorities with the facts
and circumstances of the exclusion. We will also request that an
appropriate investigation in accordance with State law be conducted,
that appropriate sanctions be invoked, and that the State or local
licensing agency or other licensing authority keep us currently and
fully informed of their actions in response to our request. (u) Definitions. As used in this section
(1) Individual means any representative or health care provider.
(2) Representative will have the same meaning as stated in section 404.1703 of this part.
(3) Health care provider means any person or entity that employs a
person or persons who would be considered a medical source.
(4) Medical source means any health care provider who is defined under section 404.1513(a) and (d)(1) of this part.
(5) Act means the Social Security Act.
(6) Social security programs means the program providing for
monthly insurance benefits under title II of the Act and the program
providing for monthly supplemental security income payments under title
XVI of the Act (including State supplementary payments that we make.)
(7) Sole source of essential services in a community means that, in
the case of health care providers, no other health care providers who
perform similar services or, in the case of representatives, no other
representatives who perform similar services exist within a 50 mile
radius of the limits of the town, county or city in which the infraction took place.
(8) Convicted means:
(i) A judgment of conviction that has been entered against the
individual by a Federal, State, or local court, except if the judgment of conviction has been set aside or expunged;
(ii) A finding of guilt against the individual by a Federal, State or local court;
(iii) A plea of guilty or nolo contendere by the individual has been accepted by a Federal, State or local court; or
(iv) The individual has entered into participation in a first
offender, deferred adjudication, or other arrangement or program where judgement of conviction has been withheld.
(v) Reporting requirements. Any individual participating in or
seeking to participate in any Social Security programs will inform us
by letter, as soon as practicable, of any excluding event stated in
paragraph (a) of this section. If the individual is a health care
provider the letter must be sent to the following address: Social
Security Administration, Office of Disability and Income Security
Programs, Section 1136 Exclusion, Room 4634 Annex Building, 6401
Security Boulevard, Baltimore, MD 212356401. If the individual is a
representative, the letter must be sent to the following address:
Social Security Administration, Office of Hearings and Appeals,
Attention Special Counsel Staff, 5107 Leesburg Pike, Suite 1605, Falls
Church, VA 22041. This letter must include a copy of the conviction,
judgment, or administrative determination. The individual making such a
report to us must comply with any further requests that we make for information regarding the reported matter.
PART 416SUPPLEMENTAL SECURITY INCOME FOR THE AGED , BLIND, AND DISABLED
Subpart I[Amended]
3. The authority citation for Subpart I of part 416 continues to read as follows:
Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5),
1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c)
and 5, 6(c)(e), 14(a), and 15, Pub. L. 98460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).
4. Add a new Sec. 416.903b to read as follows:
Sec. 416.903b Mandatory exclusion of health care providers and
representatives from participating in SSA programs including serving as a representative payee.
(a) Reasons for mandatory exclusions. We will exclude from
participation in social security programs any representative or health care provider who, on or after December 14, 1999:
(1) Has been convicted of a violation of section 208 or section 1632 of the Act;
(2) Has been convicted of any violation under title 18, U.S.C.,
relating to an initial application for or continuing entitlement to, or
amount of, benefits under title II of the Act or an initial application
for or continuing eligibility for, or amount of, benefits under title XVI of the Act; or
(3) Has been determined by the Commissioner to have committed an offense described in section 1129(a)(1) of the Act.
(b) Effect of exclusion on the individual who has been excluded.
When we exclude an individual, we will prohibit that individual from:
(1) Acting as a medical source who provides items or services for
claimants or beneficiaries for the purpose of assisting claimants or beneficiaries to demonstrate that they are disabled;
(2) Being appointed or recognized as a representative of claimants
or beneficiaries, in dealings with us, under subpart R of part 404 of this chapter and subpart O of this part; and
(3) Being selected in the future, or from continuing to act as a
representative payee, under subpart U of part 404 of this chapter and subpart F of this part.
(c) Effect of exclusion on information or evidence from health care
providers. Beginning with the effective date of the exclusion, we will
not consider the provider's medical source statements, opinions on
issues reserved to the Commissioner, or other evidence prepared for the
purpose of assisting a claimant or beneficiary in demonstrating
disability. We will consider information or evidence derived from the
services of an excluded medical source only when those services were rendered before the effective date of the exclusion.
[[Page 40343]]
(d) Effect of exclusion on the records of the excluded
representative. An exclusion under this section will not be construed
as having the effect of limiting access by a claimant, beneficiary,
State disability determination agency, or us to records maintained by
the excluded representative for services provided to a claimant or beneficiary before the effective date of an exclusion.
(e) Length of exclusion. We will exclude an individual for a period of five years, ten years or permanently.
(1) The minimum length of time for an exclusion will be:
(i) Five years if an individual has been subject to one excluding event as stated in paragraph (a) of this section;
(ii) Ten years if an individual has been subject to two separate
excluding events as stated in paragraph (a) of this section (one of
those events may have occurred before December 14, 1999); and
(iii) Permanent exclusion if an individual has been subject to
three or more excluding events as stated in paragraph (a) of this
section (one or two of those events may have occurred before December 14, 1999).
(2) Notwithstanding the time periods set forth in (e)(1) of this
section, we shall impose a permanent exclusion upon the first or second excluding event if two or more of the following exist:
(i) The criminal sentence is for five or more years of incarceration and/or probation;
(ii) The criminal sentence includes payment of restitution to us in an amount equal to or more than $30,000;
(iii) The criminal conviction includes five or more separate violations of law;
(iv) The assessment of civil monetary penalties is equal to or more than $50,000;
(v) The assessment of civil monetary penalties was based on five or more violations of law;
(vi) The individual has been convicted of fraud, making false
statements, or misrepresentations in any other government program or
has been administratively determined to have committed such acts;
(vii) A State licensing authority has revoked or suspended any
license issued to the individual in the past for fraud, false statements or misrepresentations; or,
(viii) The individual failed to comply with section 416.903b(v).
(f) Exclusion determination. The Inspector General is responsible
for providing us with pertinent documentation regarding the excluding
event within 45 days of the conviction or of the date upon which the
determination under section 1129a of the Act becomes final. The
information supplied by the Inspector General should, whenever
practical, include the charging documents, plea agreements, agreements
for deferred adjudication or pretrial diversion, judgments of
conviction, and in cases decided under section 1129a of the Act, a copy
of the final decision that imposes civil monetary penalties. When we
obtain evidence that an individual meets one or more of the criteria in
paragraph (a) of this section, we will make a proposed determination to exclude that individual.
(1) We will use all of the information that we have collected.
(2) Based on this information, we will prepare a proposed
determination that explains the reasons why we believe the individual
should be excluded. Once we determine that the individual meets the
criteria for exclusion, we will provide the individual with notice of
the date on which the exclusion takes effect. We will also notify the
individual of his or her right to appeal the determination to an
administrative law judge and his or her right to request waiver of the exclusion.
(3) The exclusion determination will become effective 35 days after
it is issued unless a request for hearing is filed as described in
paragraph (i) of this section or a request for waiver is made.
(4) If the individual requests a waiver of the proposed exclusion,
that individual must submit to us a written statement and any relevant
documentary evidence as required in paragraph (h) of this section. The
statement and evidence to support the request for waiver must be
submitted within 30 days of receiving the notice of proposed exclusion.
We assume that the individual will receive the notice five days after the date that the notice of proposed exclusion is mailed.
(g) Notice of proposed exclusion. We will send the notice of
proposed exclusion to the individual's last known address by certified mail. This notice will provide the following information:
(1) The basis for exclusion;
(2) The effect of the exclusion;
(3) The proposed effective date of the exclusion;
(4) The proposed period of exclusion; and
(5) The procedure and timeframe by which the individual may object
to the exclusion and submit a written statement and relevant documents.
(h) Waiver of exclusion. We may waive the exclusion of an
individual if we determine that he or she is the sole source of
essential services in a community. We will consider only the location
in which the infraction(s) took place in our determination. We will not
consider situations where the party has moved to a remote location
after the excluding event. Our decision concerning waiver of the exclusion shall not be subject to review.
(i) Right to a hearing before an administrative law judge. If an
excluded individual is dissatisfied with our determination to exclude,
the individual may request a hearing. The Associate Commissioner for
Hearings and Appeals, or his or her delegate, will appoint an administrative law judge to conduct the hearing.
(1) The request for a hearing must be made within 30 days of the
date that the excluded individual receives the determination to exclude.
(2) The individual must submit, with the request for a hearing, all
exhibits that the individual wants to be received into the record, a
list of any witnesses whom the individual intends to call at the hearing, and a statement of the issues being raised.
(3) A failure to submit a timely request for hearing, evidence, or
witness list may be excused for good cause. If there is an untimely
submission of a request for hearing and the administrative law judge
does not find that there is good cause to excuse the untimely filing,
the administrative law judge will dismiss the request for hearing. If
there is an untimely submission of evidence or a witness list and the
administrative law judge finds that there is no good cause to excuse
the untimely filing, the administrative law judge will not enter such
evidence into the record and will not permit the witnesses to testify at the hearing.
(j) Disqualification of administrative law judge. An administrative
law judge shall not conduct a hearing if he or she is prejudiced or
partial with respect to any party or has any interest in the matter
pending for decision. The excluded individual has the right to object
to the administrative law judge assigned to hear the individual's
appeal. The individual must inform the administrative law judge, in
writing and at his or her earliest opportunity, of the objection. The
administrative law judge will consider the objection and decide whether
to proceed with the hearing or withdraw. If he or she withdraws, the
Associate Commissioner for Hearings and Appeals, or his or her
delegate, will appoint another administrative law judge to conduct the hearing.
(k) Issue before the administrative law judge. The administrative
law judge may only decide whether the basis for an individual's exclusion exists and whether the length of exclusion meets
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the requirements of paragraph (e) of this section. The administrative
law judge has no authority to review the factual or legal conclusions
of the conviction or determination that is the basis for the determination to exclude.
(l) PreHearing procedures. An administrative law judge may dismiss
any hearing request that fails to state either an issue of disputed
material fact or law regarding a matter that is subject to review;
i.e., whether the underlying conviction or civil monetary penalty
exist. If the individual's hearing request and supporting documentation
does not reveal the existence of a material factual or legal dispute,
the administrative law judge will issue an order to show cause why the
hearing request should not be dismissed. The individual must respond to
the order to show cause 30 days from the date of receipt, which will be
presumed to be five calendar days from the date of mailing. The
administrative law judge will decide whether a material factual or
legal dispute exists and will either dismiss the hearing request or set a date for the hearing.
(m) Hearing procedures. The procedures in Sec. Sec. 404.936
404.938, 404.944, 404.948404.949, 404.950(ce), 404.953(a), and 404.957(ab), 404.961 will apply to the hearing before the
administrative law judge. If the administrative law judge dismisses a
case, the administrative law judge may, within 60 days of the dismissal, vacate such dismissal if good cause exists.
(n) Appeals Council review. The Appeals Council may, on its own
motion and within 60 days of the issuance of an administrative law
judge's decision or dismissal, initiate review of the administrative
law judge's decision or dismissal. We or the excluded individual may
request the Appeals Council to exercise its authority to take own
motion review. Sec. Sec. 404.970(a), 404.973404.975, 404.976(a) and
(b)(2), will apply to the Appeals Council review of an administrative
law judge's decision or dismissal. The Appeals Council will issue a
decision or remand the case to the administrative law judge. The
Appeals Council may affirm, modify, or reverse the administrative law
judge's decision. A copy of the Appeals Council's decision will be sent
to the excluded individual at his or her last known address.
(o) Effect of Appeals Council review on exclusion. Unless the
Appeals Council reviews the decision or dismissal, the administrative
law judge's decision or dismissal shall become the Commissioner's final
decision 60 days after it is issued. If the Appeals Council decides to
review the administrative law judge's decision within 60 days from the
date it is issued, and the Appeals Council issues a decision, it will become the Commissioner's final decision.
(p) Judicial review. The excluded individual has the right to file
a civil action in a Federal district court within 60 days of the date
of the Commissioner's final decision. The excluded individual shall
serve a copy of any civil action on the Commissioner at 6401 Security
Boulevard, Baltimore, Maryland 212350001. Sections 404.983404.984 will apply to any cases remanded by a Federal court.
(q) Termination of exclusion. (1) An individual excluded from
participation under this section may request that we terminate an exclusion:
(i) At the end of the minimum period of exclusion;
(ii) If the individual becomes the sole source of essential services in a community; or
(iii) If the judgement or conviction that is the basis of the exclusion is set aside or expunged.
(2) We may terminate the exclusion if we determine, based on the
conduct of the excluded individual that occurred after the date of the
notice of exclusion, or which was unknown to us at the time of the exclusion, that:
(i) There is no basis for a continuation of the exclusion; and
(ii) There are reasonable assurances that the types of actions that
formed the basis for the original exclusion have not recurred and will not recur.
(3) Our decision regarding termination of exclusion is not subject to review.
(r) Penalties are not exclusive. Exclusion imposed under this
section is in addition to any other penalties or sanctions prescribed by law.
(s) Notice to State agencies and the public. (1) We will notify the
State agencies employed for the purpose of making disability
determinations of the exclusion of an individual from participating in
Social Security programs when the Commissioner has issued a final
decision to exclude. We will provide the following information:
(i) The facts and circumstances of the exclusion of the individual; and
(ii) The period that the exclusion will be in effect.
(2) We will also notify the state agencies of the fact and
circumstances of each termination of exclusion made under paragraph (q)
of this section. We will also provide the public with appropriate
notice of individuals or entities who have been excluded from participation in our programs.
(t) Notice to State licensing authorities. We will notify
appropriate State or local licensing agencies or other licensing
authorities when the Commissioner has issued a final decision to
exclude. We will provide those agencies or authorities with the facts
and circumstances of the exclusion. We will also request that an
appropriate investigation in accordance with State law be conducted,
that appropriate sanctions be invoked, and that the State or local
licensing agency or other licensing authority keep us currently and
fully informed of their actions in response to our request. (u) Definitions. As used in this section
(1) Individual means any representative or health care provider.
(2) Representative will have the same meaning as stated in section 404.1703 of this part.
(3) Health care provider means any person or entity that employs a
person or persons who would be considered a medical source.
(4) Medical source means any health care provider who is defined under section 404.1513(a) and (d)(1) of this part.
(5) Act means the Social Security Act.
(6) Social security programs means the program providing for
monthly insurance benefits under title II of the Act and the program
providing for monthly supplemental security income payments under title
XVI of the Act (including State supplementary payments that we make.)
(7) Sole source of essential services in a community means that, in
the case of health care providers, no other health care providers who
perform similar services or, in the case of representatives, no other
representatives who perform similar services exist within a 50 mile
radius of the limits of the town, county or city in which the infraction took place.
(8) Convicted means:
(i) A judgment of conviction that has been entered against the
individual by a Federal, State, or local court, except if the judgment of conviction has been set aside or expunged;
(ii) A finding of guilt against the individual by a Federal, State or local court;
(iii) A plea of guilty or nolo contendere by the individual has been accepted by a Federal, State or local court; or
(iv) The individual has entered into participation in a first
offender, deferred adjudication, or other arrangement or program where judgement of conviction has been withheld.
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(v) Reporting requirements. Any individual participating in or
seeking to participate in any Social Security programs will inform us
by letter, as soon as practicable, of any excluding event stated in
paragraph (a) of this section. If the individual is a health care
provider the letter must be sent to the following address: Social
Security Administration, Office of Disability and Income Security
Programs, Section 1136 Exclusion, Room 4634 Annex Building, 6401
Security Boulevard Baltimore, MD 212356401. If the individual is a
representative, the letter must be sent to the following address:
Social Security Administration, Office of Hearings and Appeals,
Attention Special Counsel Staff, 5107 Leesburg Pike, Suite 1605, Falls
Church, VA 22041. This letter must include a copy of the conviction,
judgment, or administrative determination. The individual making such a
report to us must comply with any further requests that we make for information regarding the reported matter.
[FR Doc. 0415077 Filed 7104; 8:45 am]
BILLING CODE 419102P
FOR FURTHER INFORMATION CONTACT
Charles M. Urban, Social Insurance Specialist, Professional Relations Branch, Office of Disability Programs, Office of Disability and Income Support Programs, Social Security Administration, 6401 Security Boulevard, Room 4634 Annex Building, Baltimore Maryland 212356401, Charles.M.Urban@ssa.gov, 410 9659029, or TTY, 4109665609, or FAX 4109656659 for information about these regulations. For information on eligibility or filing for benefits: Call our national tollfree number, 1(800) 7721213 or TTY 1(800) 3250778, or visit our Internet Web site, Social Security Online, at http://www.socialsecurity.gov.