Social Security just updated its HALLEX manual section
pertaining to cases involving alleged "fraud or similar fault." Here are some excerpts with my comments in brackets:
- Except in unusual circumstances where individual case instruction is more appropriate, ODAR will draft specific processing instructions for any group of cases involving the same source(s) believed to have committed fraud or similar fault. [Did I miss the specific processing instructions for the Eric Conn cases or did SSA not release them? Are there secret instructions for these cases?]
- If SSA determined that fraud or similar fault was involved in the individual's application, SSA will provide detailed information regarding relevant criminal, civil, congressional, or administrative investigative findings and how they relate to the individual's application for benefits. SSA will associate copies of any relevant material(s) with the notice and in the claim(s) file. [I don’t remember seeing this “detailed information” in the Conn cases.]
- Under sections 205(u) and 1631(e)(7) of the Act, adjudicators do not have discretion to reconsider the issue of whether the identified evidence should be disregarded when based on an OIG referral of information or a referral based on information obtained during a criminal or other law enforcement investigation.
- However, when the redetermination is based solely on an SSA finding of fraud or similar fault, an adjudicator can consider a beneficiary's or recipient's objection to the disregarding of certain evidence. If the adjudicator is satisfied that fraud or similar fault was not involved in providing the evidence, he or she will consider the evidence. However, if the adjudicator disregards the evidence because a preponderance of the evidence shows that fraud or similar fault was involved in providing the evidence, he or she will address the beneficiary's or recipient's objection in his or her decision. [What? This sounds contradictory.]
- If the beneficiary or recipient submits evidence of an impairment that existed at the time of the original allowance date, but was not alleged on his or her application, SSA will generally consider that evidence. However, if the particular circumstances involved require that a certain type of evidence be disregarded, SSA may also disregard any newly submitted evidence involving that type of evidence. [What’s the standard here? What “particular circumstances” are you talking about?]
3 comments:
"when the redetermination is based solely on an SSA finding of fraud or similar fault, an adjudicator can consider a beneficiary's or recipient's objection to the disregarding of certain evidence."
This sounds like they misinformed everyone of these claimant's as to their rights. Weren't the ALJs previously advised that they could not consider this allegedly fraudulent evidence? Are they now saying an adjudicator can make their own determination? Sounds like they may need to readjudicate all of the cases already decided.
There was a handful of paid "bad actor" doctors, paid for giving out medical source statements noting the claimant was disabled even when they weren't and those doctors records are considered not credible..
The key to understanding this is to realize there are two types of 'rehearings' of fraud or similar fault cases. One is called a "redetermination" and is based on a referral from the OIG constituting "reason to believe" fraud or similar fault was involved in the submission of evidence. In those circumstances, blanket provisions apply to all affected individuals and the ALJ has less discretion regarding disregarding evidence. The other is a "reopening and revising" of the decision in the case, which can be done based on a finding in an individual case by SSA (or an ALJ sua sponte) that fraud or similar fault was involved. In that case, the ALJ must make findings regarding what evidence should be disregarded, if any, and why. These are two completely separate procedures based on the statute that are woefully intermingled in agency policy.
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