ISSUED: November 7, 1990
I. Purpose
This Temporary Instruction (TI) contains instructions for implementing the
settlement agreement approved by the U.S. District Court for the Western
District of Kentucky in Blankenship, et al., v. Secretary of
Health and Human Services, No. C 75-0185-L(A) (W.D. Ky. Jan.
3, 1990).
II. Background
On October 1, l986, the U.S. District Court for the Western District of
Kentucky ordered the Secretary to send notices to all title II and title
XVI disability claimants residing in Kentucky to advise them that they
could initiate action against the Social Security Administration in
Federal court if they believed that their cases were being “unfairly
or unreasonably” delayed at the hearing or Appeals Council level of
review. The Government appealed this order to the Sixth Circuit arguing
that Heckler v. Day, 467 U.S. 104 (1984), precluded
classwide relief of any kind. The Office of Hearings and Appeals
implemented the district court order while it was on appeal and has
continued to send the court-ordered notices.
On October 6, l988, the Sixth Circuit remanded the case to the district
court for specific findings of fact regarding the presence or absence of
systematic, unreasonable delays. Thereafter, the parties negotiated a
settlement agreement which the district court approved on January 3, 1990
(Attachment A).
III. Claims Covered by the Agreement
The agreement covers all title II and title XVI disability claimants who
reside in Kentucky and who request a hearing before an Administrative Law
Judge and/or review by the Appeals Council.
IV. Implementation of the Agreement
A. Hearing Office Actions
When a hearing office (HO) receives a new request for hearing by a title
II or title XVI disability claimant residing in Kentucky, HO personnel
must send the notice in Attachment B to the claimant and a copy to the
representative, if any, at the same time they send acknowledgment of the
request for hearing. HO personnel must send the notice no later than 90
days after the date of the request for hearing. They must place a copy of
the notice in the claim file and enter it into the record as an exhibit.
When the Office of Appellate Operations (OAO) receives a new request for
review from a disability claimant residing in Kentucky, OAO personnel must
review the file to ensure that a Blankenship notice
was sent at the hearing level. If a notice was sent, there is no need to
send another because the hearing level notice also informs the claimant of
the right to seek judicial relief if the Appeals Council's action is
unreasonably delayed. If no notice was sent at the hearing level, OAO
personnel must send the notice in Attachment C to the claimant and
representative, if any. They must place a copy of the notice in the claim
file and enter it into the record as an exhibit.
V. Inquiries
HO personnel may call the Atlanta Regional Office at (FTS) 242-5685.
Regional Office personnel may call the Division of Field Practices and
Procedures in the Office of the Chief Administrative Law Judge at (FTS)
305-0022. Headquarters personnel may call the Division of Litigation
Analysis and Implementation at 305-9708.
Attachment A. - Settlement Agreement Dated January 3, 1990
[DATE FILED 01/03/1990]
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF
KENTUCKY
AT LOUISVILLE
|
SAMMIE GAIL BLANKENSHIP, et al.,
|
) |
CIVIL, ACTION NO. |
|
Plaintiffs,
|
) |
C 75-0185-L(A) |
|
|
) |
|
|
|
) |
|
|
v.
|
) |
|
|
|
) |
|
|
SECRETARY OF HEALTH AND HUMAN SERVICES,
|
) |
|
|
|
) |
|
|
Defendant.
|
) |
|
|
______________________________________________ |
) |
|
|
|
) |
|
|
GEORGIA FINCH, et al.,
|
) |
CIVIL, ACTION NO. |
|
|
) |
|
|
Plaintiffs,
|
) |
C 76-0441-L(A) |
|
|
) |
|
|
v.
|
) |
|
|
|
) |
|
|
SECRETARY OF HEALTH AND HUMAN SERVICES,
|
) |
|
|
Defendant.
|
) |
|
|
______________________________________________ |
) |
|
SETTLEMENT AGREEMENT
I. PROCEDURAL HISTORY
1.
The consolidated class action suits were brought by plaintiff classes of
Kentucky residents, seeking relief concerning the time taken to process
cases at both the hearing and appeal stages of the administrative appeals
processes for Supplemental Security Income (SSI) and Old Age, Survivors
and Disability Insurance (OASDI) benefits claims. In 1982, the District
Court ordered the Secretary to promulgate regulations establishing a
180-day time limit within which hearing decisions must be issued on
disability claims under Titles II and XVI of the Social Security Act, 42
U.S.C. § 401, et seq., in cases involving terminations, suspensions,
or reductions. In addition, the Court directed the Secretary to promulgate
regulations establishing a 90-day time limit within which appeals
decisions must be issued in Supplemental Security Income (SSI) disability
claims involving terminations, suspension, or reductions.
2.
The Court also ordered that interim benefits be paid, subject to
recoupment, to claimants who did not receive a hearing within 180 days of
the day the hearing was requested. 532 F. Supp. at 746-47. This decision
was affirmed on appeal by the Sixth Circuit in Blankenship v.
Schweiker, 722 F.2d 1282 (1983). However, the District Court's
order was stayed by Justice O'Connor pending the Supreme Court's decision
in Day. Heckler v.
Blankenship, 465 U.S. 1301 (1984). After
Day was decided, the Sixth Circuit's decision
affirming was vacated and the case was remanded to the District Court for
reconsideration in light of Day.
Blankenship v. Secretary, HHS, 750 F.2d 30 (1984).
It is from the District Court's decision on remand that the Secretary now
appeals.
3.
On remand, the District Court granted class-wide notice relief and ordered
the Secretary to send to Title II and Title XVI disability claimants in
Kentucky the “notice” attached hereto as Appendix A. The
Sixth Circuit Court of Appeals, on October 6, 1988, once again remanded
the case to the District Court for the purpose of making specific findings
of fact regarding current systemic, unreasonable delays to support the
Court's injunctive order.
4.
Since the October remand, counsel have been involved in negotiations,
which led to the settlement agreement hereinunder proposed to the District
Court.
II. AGREEMENT
The defendant herein has been forwarding the aforementioned notice since
the District Court's injunctive order of March 20, 1986, and since both
parties to this litigation agree that said notice represents the one
remaining unresolved issue in this case, the parties herein desire to
settle this lawsuit, with the Court's approval, on the following agreed
upon terms:
a.
The defendant agrees to continue to send the attached notice (Appendix A)
to Title II and Title XVI disability claimants in the Commonwealth of
Kentucky who seek de novo review of adverse decision for benefits before
an Administrative Law Judge and/or before the Appeals Council of the
Department of Health and Human Services. In making this agreement,
defendant does not acknowledge that any classwide relief is
appropriate.
b.
The parties agree that a change in circumstances shall allow parties to
reopen this case to request supplemental orders consistent with such
changes.
c.
Plaintiffs agree not to seek attorney's fees for services performed
through the date of approval of this settlement agreement.
d.
Each party shall bear its own costs.
|
1/3/90
DATE
|
/S/
CHARLES M. ALLEN, SENIOR JUDGE
|
|
AGREED TO BY: |
|
|
12/21/89
DATE
|
________/S/________
HENRY
A. FREEDMAN
Counsel for Plaintiffs
Center on Social
Welfare
Policy and Law
95 Madison Avenue,
Room 701
New York, NY 10016
|
|
12/21/89
DATE
|
________/S/________
DENNIS
E. BRICKING
Counsel for Plaintiffs
Legal Aid Society,
Inc.
425 W. Muhammad Ali Blvd.
95 Madison Avenue,
Room 701
Louisville, KY. 40202
|
|
|
JOSEPH M. WHITTLE
UNITED STATES ATTORNEY
|
|
12/19/89
DATE
|
________/S/________
MICHAEL
F. SPALDING
Assistant United States Attorney
Counsel for Defendant
|
|
12/15/89
DATE
|
________/S/________
STANLEY
ERICSSON
Attorney
Social Security Division
Office
of the General Counsel
Department of Health and Human Services
|
APPENDIX A
YOU HAVE A RIGHT TO HAVE A DECISION WITHIN A REASONABLE TIME AFTER YOUR
HEARING REQUEST
We are required by the federal court to give you the following
notice:
We have received your request for a hearing and will notify you at least
20 days before the hearing as to when and where it will be held. Although
we will make every effort to schedule you as soon as possible, there may
be a delay in scheduling your hearing. If you wish to find out the status
of your hearing, you may call (502) 582-6446, or write to our office
at:
Office of Hearings and Appeals
Suite
1402, Heyburn Bldg.
322 W. Broadway
Louisville,
KY. 40202
You have a right to sue us in federal court if you believe that a decision
in your case has been unfairly or unreasonably delayed. If, after
requesting a status report of your hearing decision as explained above,
you believe your case is being delayed unreasonably, you may seek relief
in district court. Also, if you receive a decision from the Administrative
Law Judge finding that you have no disability and you appeal that decision
to the Social Security Appeals Council, we will make every effort to have
the Appeals Council complete its action as soon as possible. However,
there may be a delay in the Appeals Council's action on your case. If you
believe their action is being delayed unreasonably, you may seek relief in
federal court.
You may wish to consult your attorney regarding your rights. If you do not
have an attorney, free legal services may be available if you qualify for
them due to financial need. For further information, you can contact the
attorneys for the plaintiffs in the case which challenges Social Security
delays in Kentucky, Blankenship v. Secretary of Health and
Human Services, No. C75-0185-L(A) (W.D. Ky. March 20,
1986):
Legal Aid Society,
Inc.
425 W. Muhammad Ali Blvd., 4th Floor
Louisville,
KY 40202
(502) 584-1254
(800) 292-1862
Attachment B. - Notice to Claimant (for use by HO)
YOU HAVE A RIGHT TO HAVE A DECISION WITHIN A REASONABLE TIME AFTER YOUR
HEARING REQUEST
We are required by the Federal court to give you the following
notice:
We have received your request for a hearing and will notify you at least
20 days before the hearing as to when and where it will by held. Although
we will make every effort to schedule you as soon as possible, there may
be a delay in scheduling your hearing. If you wish to find out the status
of your hearing, you may call
(Insert hearing office telephone number),
or write to our office at:
Office of Hearings and
Appeals
(Insert hearing office address)
You have a right to sue us in Federal court if you believe that a decision
in your case has been unfairly or unreasonably delayed. If, after
requesting a status report of your hearing decision as explained above,
you believe your case is being delayed unreasonably, you may seek relief
in district court. Also, if you receive a decision from the Administrative
Law Judge finding that you have no disability and you appeal that decision
to the Social Security Appeals Council, we will make every effort to have
the Appeals Council complete its action as soon as possible. However,
there may be a delay in the Appeals Council's action on your case. If you
believe their action is being delayed unreasonably, you may seek relief in
Federal court.
You may wish to consult your attorney regarding your rights. If you do not
have an attorney, free legal services may be available if you qualify for
them due to financial need. For further information, you can contact the
attorneys for the plaintiffs in the case which challenges Social Security
delays in Kentucky, Blankenship v. Secretary of Health and
Human Services, No. C75-0185-L(A) (W.D. Ky. March 20,
1986):
Legal Aid Society, Inc.
425 W. Muhammad
Ali Blvd., 4th Floor
Louisville, KY 40202
(502)
582-1254
(800) 292-1862
cc: (Representative, if any)
Attachment C. - Notice to Claimant (for use by Appeals Council)
YOU HAVE A RIGHT TO HAVE A DECISION WITHIN A REASONABLE TIME AFTER YOUR
HEARING REQUEST
We are required by the Federal court to give you the following
notice:
We have received your request for Appeals Council review of the
Administrative Law Judge's decision on your claim. Although the Appeals
Council will make every effort to complete its action on your case as soon
as possible, there may be some delay. If you wish to find out the status
of your case, you may call
(Insert OAO branch telephone number),
or write to the Appeals Council at:
Office of Appellate Operations
5107 Leesburg Pike
Falls
Church, VA 22041-3255
Attention: (Insert
OAO branch and room numbers)
You have a right to sue us in Federal court if you believe that the
Appeals Council's action has been unfairly or unreasonably delayed. If,
after requesting a status report as explained above, you believe your case
is being delayed unreasonably, you may seek relief in district
court.
You may wish to consult your attorney regarding your rights. If you do not
have an attorney, free legal services may be available if you qualify for
them due to financial need. For further information, you can contact the
attorneys for the plaintiffs in the case which challenges Social Security
delays in Kentucky, Blankenship v. Secretary of Health and
Human Services,
No. C 75-0185-L(A) (W.D. Ky., March 20, 1986):
Legal Aid Society, Inc.
425 W. Muhammed
Ali Blvd., 4th Floor
Louisville, Kentucky 40202
(502)
584-1254
(800) 292-1862
cc: (Representative, if any)