SSA Adverse Decisions and Administrative Finality

Policy behind administrative finality: Individuals should be able to rely on SSI determinations and decisions. SSA should not be required to establish findings after a lapse of considerable time from the date of events. Regulations therefore prescribe time limits for reopening SSI decisions and determinations by SSI recipient or SSA.

Policy behind administrative finality: Administrative finality is the concept that determinations of eligibility to receive payments and payment amounts become final and binding on both parties immediately, unless timely appealed or later reopened and revised for special reasons.

SSI Administrative Finality legal authority 20 CFR §§416.1487-1494 POMS SI 04070.000-04070.080 –explains why a determination can be reopened and revised and provides procedures and time limits

Initial determinations and deemed initial determinations can be reopened: “Initial determination” first determination on an application, post-eligibility event or periodic redetermination of eligibility Written SSA notices are initial determinations Initial determinations includes SSA’s formal disposition of any legal or factual issue affecting right to benefit amounts or any other right provided under SSA.

Initial determinations and deemed initial determinations can be reopened: Examples: eligibility for or amount of SSI benefits; suspension, reduction or termination of SSI; amount and cause of overpayment; amount of income, amount of resources, living arrangements “Deemed initial determination” occurs on the first day of each month that a recipient is shown on the record as eligible and the payment amount remains unchanged. Deemed initial determinations always follow actual initial determinations of eligibility or payment amount, beginning the month following the actual determination as long as there is no change in eligibility or amount. Deemed initial determinations apply only to non-medical factors.

Initial determinations and deemed initial determinations can be reopened: A determination can only be reopened by a decision maker at the same level or above A denial of a request to reopen is not an initial determination and is not appealable

General rule and Policy Changes General rule - only incorrect determinations which were incorrect when made can be reopened (SI 04070.010(C)) Changes of position exception: “If we change our position because of a court order, legal precedent, etc. or other policy considerations, we can go back for up to one year and revise determinations, even though they were correct when made under the old position.” Statutory and regulatory changes exception: “Revision, if applicable, will depend on the effective date specified in the statute or regulations. Revision will also depend on whether the change has retroactive effect. The instructions relating to the change will specify the effective date and how reopening and revision applies.”

General rule and Policy Changes Policy re. Change of Positions (SI 04070.040(C)) Unless otherwise specified in the change of position, applicable as of effective date to: all applications filed or pending on and after effective date; all redeterminations, reconsiderations, ALJ hearing, AC reviews and litigation cases initiated or pending on or after effective date Applicability to Cases in Which a Determination or Decision is Questioned after the Change of Position SSA may reopen and apply the change of position retroactively to the effective date of the change or 1 year, whichever is later. Retroactive changes are limited to 1 year and do not, without the presence of new and material evidence, clerical error or error on the face of the evidence, justify 2 year retroactivity.

Time limits for reopening determinations 1 year rule Can be reopened and revised for up to 1 year from date of notice for any reason 2 year rule Can be reopened and revised upon a finding of “good cause.”

Time limits for reopening determinations Good cause: New and material evidence is furnished – any evidence not part of file which shows fact that can result in a different conclusion than prior decision; Clerical error has been made – any error (ex. math, coding or input) which results in an incorrect determination; or Error on the face of the evidence –all evidence in file clearly shows decision is incorrect

Time limits for reopening determinations A change of ruling or legal precedent does not constitute good cause Indefinite reopening rule Finding of fraud or similar fault

Reopening Procedure: Either recipient or SSA can request in writing to reopen a determination within applicable time period 60 day appeal period must have expired 1. Threshold review - preliminary review of claims file to determine whether to reopen a determination. Precedes a reopening that may occur. Claimant or SSA can initiate this. 2. Affirmative action in writing - a writing that questions the correctness of a prior determination or decision. This will take the process beyond a threshold review and initiate a reopening. Must be by SSA, in writing, conscious and deliberate questioning of the correctness of a prior determination or decision in a specific case.

Reopening Procedure: 3. Reopening - action to be taken after affirmative action in writing or request by claimant – SSA is directed take action promptly, including but not limited to, annotating screen, beginning investigation and development or reconciliation of such action. SSA must calculate the period subject to reopening by determining deemed initial determination and actual written initial determinations to see if within the applicable time period SSA must investigate after a determination has been reopened to determine if revision is appropriate.

Reopening Procedure: 4. A determination may be revised after the 1 or 2 year time limit, but only if the investigation was initiated before the time limit to reopen has passed and the investigation is “diligently pursued.” “Diligently pursued” means that: “in light of the facts and circumstances of a particular case, the necessary action was undertaken and carried out as promptly as the circumstances permitted.” If not diligently pursued, the determination may not be revised if unfavorable to the individual. “Diligent pursuit” may be presumed if the investigation is completed and the determination is revised within the 6 month time period after the date the investigation began (date of affirmative action in writing). If the investigation is not complete and determination is not revised within the 6 month time period, the entire period of the investigation must be evaluated to determine whether periods of inaction constituted reasonable or unreasonable delay.

Reopening Procedure: SSA has burden to show delays are reasonable. Whenever revision does not occur within 6 months, delay must be documented in writing regardless of whether reasonable or not. Undocumented delays are presumed to be unreasonable. If delay is unreasonable, a new date of affirmative action in writing may be established. Revision is complete as of the date of the notice that the prior determination has been changed with respect to either eligibility or payment amount. Date of notice is used to determine whether diligent pursuit can be presumed.

Reopening Procedure: Covered time period can be longer than 1 to 2 year rules Although reopening is limited by 1 or 2 year rule does not mean revision is likewise limited once determination is reopened, especially true when some time period has passed between filing date of application and the initial determination. Example application date 3/15/2000 Initial determination is 9/30/2000 for 3/2000 – 10/2000. 9/16/2002, SSA receives new and material evidence that income higher. Because 9/16/2002 affirmative action in writing date is within 2 years of 9/30/2000 initial decision, SSA can revise 9/30/2000 initial determination and correct all income amounts back to 3/15/2000 application.

Example of Reopening of special needs trust determination 12/1/2011 Notice - recipient ineligible beginning 5/2008, 2 years after SSA reopened decision on 5/2010 Recipient never aware SSA had reopened determination that SNT was an exempt resource $33,000 overpayment Appeal to ALJ – found in favor of SSA for administrative finality but major factor in granting waiver of overpayment. “The claimant has placed herself in a worse position, both financially and emotionally, due to the extensive period of contradictory notices, actions, and inaction taken by the SSA.”

Administrative Finality may be changed in future SS benefits and SSI have some different administrative finality regulations (good cause 4 years for Title II) In 9/13, in response to 2012 OIG report that SSA needs to collect more incorrect payments, SSA requested information from the public regarding whether and how the agency should change rules governing reopening determinations