42 U.S.C. § 1320b–6: Exclusion of representativ…

Summary

The Social Security Commissioner must bar a representative or health care provider from taking part in Social Security programs if that person is convicted of certain crimes tied to Social Security or is found to have committed certain listed offenses. The ban covers the programs that pay monthly insurance benefits (subchapter II) and monthly Supplemental Security Income (subchapter XVI). The exclusion starts on the date the Commissioner sets and applies to services given on or after that date, but medical records from before the exclusion can still be used when deciding disability claims. The usual minimum ban is 5 years, but the Commissioner can waive it if the person is the only source of essential services in a community; that waiver cannot be reviewed. For exclusions based on convictions or findings on or after December 14, 1999, one prior qualifying offense raises the minimum ban to at least 10 years, and two or more prior qualifying offenses make the ban permanent. The Commissioner must tell State disability and licensing agencies about exclusions and can ask them to investigate and act. An excluded person gets notice, a chance for a hearing, and may seek judicial review. They may apply to end the exclusion after the minimum period; the Commissioner can end it if there is no longer a basis for the ban and there are reasonable assurances the bad conduct will not recur. Applicants, beneficiaries, and relevant State agencies can access records made before the exclusion. Representatives and providers must report to the Commissioner if they have been convicted as described. The Commissioner may delegate these powers to the Inspector General. Definitions: "Exclude" means bar a representative from acting for a claimant or bar a provider from supplying services to prove disability; "Social security programs" means the benefit programs under subchapters II and XVI; "Convicted" includes formal convictions, findings of guilt, accepted guilty or nolo contendere pleas, or participation in programs where a conviction is withheld.

Title 42, §1320b–6

The Public Health and Welfare, Source: USLM XML via OLRC

(a)In general

The Commissioner of Social Security shall exclude from participation in the social security programs any representative or health care provider—

(1)who is convicted of a violation of section 408 or 1383a of this title;

(2)who is convicted of any violation under title 18 relating to an initial application for or continuing entitlement to, or amount of, benefits under subchapter II of this chapter, or an initial application for or continuing eligibility for, or amount of, benefits under subchapter XVI of this chapter; or

(3)who the Commissioner determines has committed an offense described in section 1320a–8(a)(1) of this title.

(b)Notice, effective date, and period of exclusion

(1)An exclusion under this section shall be effective at such time, for such period, and upon such reasonable notice to the public and to the individual excluded as may be specified in regulations consistent with paragraph (2).

(2)Such an exclusion shall be effective with respect to services furnished to any individual on or after the effective date of the exclusion. Nothing in this section may be construed to preclude, in determining disability under subchapter II or subchapter XVI, consideration of any medical evidence derived from services provided by a health care provider before the effective date of the exclusion of the health care provider under this section.

(3)(A)The Commissioner shall specify, in the notice of exclusion under paragraph (1), the period of the exclusion.

(B)Subject to subparagraph (C), in the case of an exclusion under subsection (a), the minimum period of exclusion shall be 5 years, except that the Commissioner may waive the exclusion in the case of an individual who is the sole source of essential services in a community. The Commissioner’s decision whether to waive the exclusion shall not be reviewable.

(C)In the case of an exclusion of an individual under subsection (a) based on a conviction or a determination described in subsection (a)(3) occurring on or after December 14, 1999, if the individual has (before, on, or after December 14, 1999) been convicted, or if such a determination has been made with respect to the individual—

(i)on one previous occasion of one or more offenses for which an exclusion may be effected under such subsection, the period of the exclusion shall be not less than 10 years; or

(ii)on two or more previous occasions of one or more offenses for which an exclusion may be effected under such subsection, the period of the exclusion shall be permanent.

(c)Notice to State agencies

The Commissioner shall promptly notify each appropriate State agency employed for the purpose of making disability determinations under section 421 or 1383b(a) of this title—

(1)of the fact and circumstances of each exclusion effected against an individual under this section; and

(2)of the period (described in subsection (b)(3)) for which the State agency is directed to exclude the individual from participation in the activities of the State agency in the course of its employment.

(d)Notice to State licensing agencies

The Commissioner shall—

(1)promptly notify the appropriate State or local agency or authority having responsibility for the licensing or certification of an individual excluded from participation under this section of the fact and circumstances of the exclusion;

(2)request that appropriate investigations be made and sanctions invoked in accordance with applicable State law and policy; and

(3)request that the State or local agency or authority keep the Commissioner and the Inspector General of the Social Security Administration fully and currently informed with respect to any actions taken in response to the request.

(e)Notice, hearing, and judicial review

(1)Any individual who is excluded (or directed to be excluded) from participation under this section is entitled to reasonable notice and opportunity for a hearing thereon by the Commissioner to the same extent as is provided in section 405(b) of this title, and to judicial review of the Commissioner’s final decision after such hearing as is provided in section 405(g) of this title.

(2)The provisions of section 405(h) of this title shall apply with respect to this section to the same extent as it is applicable with respect to subchapter II.

(f)Application for termination of exclusion

(1)An individual excluded from participation under this section may apply to the Commissioner, in the manner specified by the Commissioner in regulations and at the end of the minimum period of exclusion provided under subsection (b)(3) and at such other times as the Commissioner may provide, for termination of the exclusion effected under this section.

(2)The Commissioner may terminate the exclusion if the Commissioner determines, on the basis of the conduct of the applicant which occurred after the date of the notice of exclusion or which was unknown to the Commissioner at the time of the exclusion, that—

(A)there is no basis under subsection (a) for a continuation of the exclusion; and

(B)there are reasonable assurances that the types of actions which formed the basis for the original exclusion have not recurred and will not recur.

(3)The Commissioner shall promptly notify each State agency employed for the purpose of making disability determinations under section 421 or 1383b(a) of this title of the fact and circumstances of each termination of exclusion made under this subsection.

(g)Availability of records of excluded representatives and health care providers

Nothing in this section shall be construed to have the effect of limiting access by any applicant or beneficiary under subchapter II or XVI, any State agency acting under section 421 or 1383b(a) of this title, or the Commissioner to records maintained by any representative or health care provider in connection with services provided to the applicant or beneficiary prior to the exclusion of such representative or health care provider under this section.

(h)Reporting requirement

Any representative or health care provider participating in, or seeking to participate in, a social security program shall inform the Commissioner, in such form and manner as the Commissioner shall prescribe by regulation, whether such representative or health care provider has been convicted of a violation described in subsection (a).

(i)Delegation of authority

The Commissioner may delegate authority granted by this section to the Inspector General.

(j)Definitions

For purposes of this section: (1) Exclude

(2)Social security program

The term “social security programs” means the program providing for monthly insurance benefits under subchapter II, and the program providing for monthly supplemental security income benefits to individuals under subchapter XVI (including State supplementary payments made by the Commissioner pursuant to an agreement under section 1382e(a) of this title or section 212(b) of Public Law 93–66).

(3)Convicted

An individual is considered to have been “convicted” of a violation—

(A)when a judgment of conviction 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;

(B)when there has been a finding of guilt against the individual by a Federal, State, or local court;

(C)when a plea of guilty or nolo contendere by the individual has been accepted by a Federal, State, or local court; or

(D)when the individual has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Notes & Related Subsidiaries

Editorial Notes

References in Text

section 212(b) of Public Law 93–66, referred to in subsec. (j)(2), is section 212(b) of Pub. L. 93–66, title II, July 9, 1973, 87 Stat. 155, as amended, which is set out as a note under section 1382 of this title.

Prior Provisions

A prior section 1320b–6, act Aug. 14, 1935, ch. 531, title XI, § 1136, as added Pub. L. 98–369, div. B, title VI, § 2630,

July 18, 1984, 98 Stat. 1137; amended Pub. L. 99–514, title XVIII, § 1883(c)(2), Oct. 22, 1986, 100 Stat. 2918, related to pilot projects to demonstrate use of integrated service delivery systems for human services programs, prior to repeal by Pub. L. 104–193, title I, §§ 108(q)(7), 116, Aug. 22, 1996, 110 Stat. 2168, 2181, effective

July 1, 1997, with certain transition rules.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 106–169, title II, § 208(b), Dec. 14, 1999, 113 Stat. 1842, provided that: “The amendment made by this section [enacting this section] shall apply with respect to convictions of violations described in paragraphs (1) and (2) of section 1136(a) of the Social Security Act [42 U.S.C. 1320b–6(a)] and determinations described in paragraph (3) of such section occurring on or after the date of the enactment of this Act [Dec. 14, 1999].”

§1320b–6 Exclusion of Representatives and Health Care Providers Convicted of Violations From Participation in Social Security Programs