By Payroll and Entitlements Editorial Staff
A newly issued Social Security Acquiescence Ruling explains how the agency will apply a holding in a decision of the United States Court of Appeals for the Sixth Circuit. The SSA has determined that the court's holding conflicts with its interpretation of the provisions of the Social Security Act that require the agency to disregard evidence when it conducts a redetermination or makes an initial determination of entitlement or eligibility in cases in which there is a reason to believe that fraud or similar fault was involved in the providing of evidence. AR 19-1(6) became applicable on February 4, 2020.
Hicks v. Commissioner decision. In Hicks v. Commissioner of Social Security, 909 F.3d 786 (6th Cir. 2018), reh'g denied (Mar. 29, 2019), the Court of Appeals for the Sixth Circuit held, in a 2-1 decision, that before disregarding evidence during a redetermination, the SSA must provide a factual basis for the reason to believe fraud was involved in providing evidence, and the plaintiffs must have a chance to rebut the agency’s assertions before a neutral decisionmaker.
Under the SSA’s interpretation of sections 205(u) and 1631(e)(7) of the Act, when it disregards evidence in cases the OIG refers to the agency because there is a reason to believe fraud was involved in the application and in the providing of evidence, it does not consider the individual's objection to disregarding the evidence.
The court of appeals' decision differs from SSA policy because it held that when the SSA disregards evidence under sections 205(u) and 1631(e)(7) of the Act, the agency must provide the affected individual the opportunity to challenge the reason to believe that fraud or similar fault was involved in the provision of evidence in his or her case.
Application of AR 19-1(6). AR 19-1(6) applies only to cases in which the SSA disregards evidence based on a referral from OIG under section 1129(l) of the Act and the affected individual resides in Kentucky, Michigan, Ohio, or Tennessee at the time the SSA makes the decision at the hearings level of its administrative review process.
In these four states, before the SSA disregards the evidence pursuant to sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act at the hearings level of the administrative review process, the agency will consider the individual's objection to the disregarding of that evidence.
SSA adjudicators will decide whether there is a reason to believe that fraud or similar fault was involved in providing evidence in the individual's case. The SSA defines a “reason to believe” as reasonable grounds to suspect that fraud or similar fault was involved in the application or in the provision of evidence. The reason to believe standard requires more than a mere suspicion, speculation or a hunch, but it does not require a preponderance of evidence. Adjudicators may make reasonable inferences based on the totality of circumstances, such as facts or case characteristics common to patterns of known or suspected fraudulent activity. For the SSA to disregard evidence, it is not necessary that the affected beneficiary or recipient had knowledge of or participated in the fraud or similar fault, however.
For more information. For further information, contact Amanda Gilman, Office of the General Counsel, Office of Program Law, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-9641, or TTY 410-966-5609, for information about AR 19-1(6). See 85 Fed. Reg. 6255, February 4, 2020.
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