[Federal Register Volume 85, Number 23 (Tuesday, February 4, 2020)]
[Notices]
[Pages 6255-6256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02114]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2019-0033]


Social Security Acquiescence Ruling 19-1(6), Hicks v. 
Commissioner of Social Security: Disregarding Evidence During 
Redeterminations Under Sections 205(u) and 1631(e)(7) of the Social 
Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling (AR).

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SUMMARY: This Social Security AR explains how we will apply a holding 
in a decision of the United States Court of Appeals for the Sixth 
Circuit. We have determined that the court's holding conflicts with our 
interpretation of the provisions of the Social Security Act (Act) that 
require us to disregard evidence when we conduct a redetermination or 
make 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.

DATES: We will apply this notice on February 4, 2020.

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 this notice. 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 http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: We are publishing this Social Security AR in 
accordance with 20 CFR 402.35(b)(2), 404.985(a), (b), and 416.1485(a), 
(b) to explain how we will apply the holding in Hicks v. Commissioner 
of Social Security, 909 F.3d 786 (6th Cir. 2018), rehearing en banc 
denied (March 29, 2019). Hicks addressed the procedures we apply when 
we make a decision at the hearings level of our administrative review 
process and disregard evidence under sections 205(u) and 1631(e)(7) of 
the Act.
    An AR explains how we will apply a holding in a decision of a 
United States Court of Appeals that we determine conflicts with our 
interpretation of a provision of the Act or regulations when the 
Government has decided not to seek further review of that decision or 
is unsuccessful on further review.
    This AR explains how we will apply the holding in Hicks v. 
Commissioner of Social Security when we disregard evidence under 
sections 205(u) and 1631(e)(7) of the Act at the hearings level of our 
administrative review process. We will apply this AR to all decisions 
we make under sections 205(u) and 1631(e)(7) of the Act on or after 
February 4, 2020 for individuals who reside in one of the States within 
the Sixth Circuit. If we made a decision at the hearings level of our 
administrative review process and disregarded evidence under sections 
205(u) or 1631(e)(7) of the Act between November 21, 2018, the date of 
the court of appeals' decision, and February 4, 2020, the date we will 
begin to apply this AR, the affected individual may request that we 
apply the AR to the prior decision. The affected individual must show, 
pursuant to 20 CFR 404.985(b)(2) or 416.1485(b)(2), that applying the 
AR could change our prior decision in the case.
    When we received this precedential court of appeals' decision and 
determined that an AR might be required, we began to identify those 
claims that were pending before us within the circuit that might be 
subject to readjudication if we subsequently issued an AR. Because we 
have determined that an AR is required and are publishing this AR, we 
will send a notice to those individuals whose claims we have 
identified. However, a claimant does not need to receive a notice in 
order to request that we apply this AR to our prior determination or 
decision on his or her claim, as provided in 20 CFR 404.985(b)(2) and 
416.1485(b)(2). If we later rescind this AR as obsolete, we will 
publish a notice in the Federal Register to that effect, as provided in 
20 CFR 404.985(e) and 416.1485(e). If we decide to relitigate the issue 
covered by this AR, as

[[Page 6256]]

provided by 20 CFR 404.985(c) and 416.1485(c), we will publish a notice 
in the Federal Register stating that we will apply our interpretation 
of the Act or regulations involved and explaining why we have decided 
to relitigate the issue.

(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance; 96.006 
Supplemental Security Income)

    Dated: December 23, 2019.
Andrew Saul,
Commissioner of Social Security.

Acquiescence Ruling 19-1(6)

    Hicks v. Commissioner of Social Security, 909 F.3d 786 (6th Cir. 
2018), reh'g en banc den. (Mar. 29, 2019): Disregarding Evidence During 
Redeterminations under Sections 205(u) and 1631(e)(7) of the Social 
Security Act.
    Issue: Sections 205(u) and 1631(e)(7) of the Act require us to 
redetermine entitlement to or eligibility for benefits if there is 
reason to believe fraud or similar fault was involved in an application 
for benefits. When we redetermine entitlement or eligibility, or we 
make an initial determination of entitlement or eligibility, these 
sections of the Act also require that we disregard any evidence if 
there is reason to believe that fraud or similar fault was involved in 
providing that evidence. Do we have to consider an individual's 
objection to disregarding the evidence before we disregard the 
evidence?
    Statute/Regulation/Ruling Citation: Sections 205(u) and 1631(e)(7) 
of the Social Security Act (42 U.S.C. 405(u) and 1383(e)(7)); Social 
Security Ruling (``SSR'') 16-1p, 81 FR 13436 (Mar. 14, 2016); SSR 16-
2p, 81 FR 13440 (March 14, 2016).
    Circuit: Sixth (Kentucky, Michigan, Ohio, Tennessee).
    Applicability of Ruling: This ruling applies to decisions we make 
when we disregard evidence under sections 205(u) and 1631(e)(7) of the 
Social Security Act (Act) at the hearings level of our administrative 
review process for individuals who reside in a State within the Sixth 
Circuit.
    Description of Case: Plaintiff Amy Jo Hicks and several other 
plaintiffs whose cases were consolidated for purposes of appeal applied 
for and were awarded Social Security Disability Insurance Benefits 
(DIB) or Supplemental Security Income (SSI) payments based on 
disability, after being represented by an attorney who provided 
evidence on their behalf. After the plaintiffs and nearly 2000 other 
claimants had been found disabled and entitled to or eligible for 
benefits, the Office of the Inspector General (OIG) informed us, in 
accordance with section 1129(l) of the Act, that it had reason to 
believe fraud was involved in the applications and in the providing of 
evidence. The United States District Court for the Eastern District of 
Kentucky subsequently convicted the plaintiffs' attorney, the 
administrative law judge who decided the plaintiffs' claims, and a 
doctor who provided evidence in support of the applications of 
perpetrating a large-scale fraud scheme on the agency. Based on these 
criminal convictions, the district court sentenced each defendant to 
terms in Federal prison for their respective roles in this massive 
fraud scheme.
    As required by sections 205(u) and 1631(e)(7) of the Act, we 
redetermined the entitlement to and eligibility for benefits of the 
individuals whom the OIG referred to us. During the redeterminations, 
we held new hearings and in each case disregarded evidence OIG told us 
that it had reason to believe involved fraud. In making the 
redetermination, we considered the rest of the evidence in the 
plaintiffs' claims files, any new evidence related to the relevant 
period that plaintiffs submitted, and we heard argument regarding each 
plaintiff's entitlement to DIB or eligibility for SSI payments based on 
disability.
    Plaintiffs argued that during the redeterminations, they should 
have been given the opportunity to show that fraud was not involved in 
providing evidence in their claims.

Holding

    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, we must provide a factual basis for the 
reason to believe fraud was involved in providing evidence, and 
plaintiffs must have a chance to rebut our assertions before a neutral 
decisionmaker.

Statement as to How Hicks Differs From the Agency's Policy

    Under our interpretation of sections 205(u) and 1631(e)(7) of the 
Act, when we disregard evidence in cases OIG refers to us because there 
is a reason to believe fraud was involved in the application and in the 
providing of evidence, we do not consider the individual's objection to 
disregarding the evidence.
    The court of appeals' decision differs from our policy because it 
held that when we disregard evidence under sections 205(u) and 
1631(e)(7) of the Act, we 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.

Explanation of How We Will Apply Hicks Within the Circuit

    This Ruling applies only to cases in which we disregard 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 we make the decision at the hearings level of our 
administrative review process.
    In these States, before we disregard the evidence pursuant to 
sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act at the hearings 
level of our administrative review process, we will consider the 
individual's objection to the disregarding of that evidence.
    Our 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. We define 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 us to disregard evidence, it is not 
necessary that the affected beneficiary or recipient had knowledge of 
or participated in the fraud or similar fault.

[FR Doc. 2020-02114 Filed 2-3-20; 8:45 am]
 BILLING CODE 4191-02-P